SOME PERSONAL INJURY TRIAL PRACTICE TIPS

I admire lawyers who can remember details, case and statute citations, complex medical terms, and the names of people they meet.

Another kinds of “smart” is knowing who to ask for help and what questions to ask.

We have had a nice string of a few years where we settled our personal injury cases for “fair settlement value” but did not have to take one to trial. That left us a bit “rusty”. In prize fighting they used to call it “ring rust”.

Our firm associates with some major firms in specialized or complex cases, medical malpractice, “deliberate intent”, industrial accident, cases, such as the Sago Mine Disaster, and product liability matters involving defective products, devices, and drugs.

Now we are preparing for trial in some “bread and butter” auto accident and “slip and fall cases”, so we called the two lawyers we associate the most and got the following tips:

First Lawyer Interview:  

In regard to proving medical damages:

1. You must make sure that every bill is incident related.
2. That requires a chart from the bill back to the injury, making sure that bills prior to the injury are not included; nor are charges for infectious disease or a part of the body that was not injured.
3. Be alert to other injuries. If your client falls and injures an ankle while the claim is pending to find out a. How it happened. b. Was anyone else responsible for that injury? c. How has it impacted the current injury(ies), and was the old injury exacerbated?
4. The answers can impact the prospects for your claim.
5. The insurance information and social security number has to be redacted. (One has to do with privacy. In the other, the existence of insurance could cause a mistrial if the jury learns of it!
6. You must meet with the treating doctor or doctors and get a certification that the claimed bills and treatment were the direct result of the claimed injuries.
7. It is cumbersome and expensive to bring in records custodians to testify in support of authenticity, so work had to get the other side to stipulate to authenticity and accuracy of the records, but getting the other side to stipulate to causation or reasonableness is not easy.
8. Having the written doctor’s opinion or testimony at a deposition can facilitate such stipulations.
9. You can ask your client questions regarding the bill and treatment received after the injury, was that injury present immediately after the “accident”, and if whether the total bills are a certain amount.
10. You can get the bills and records admitted bot NOT regarding the reasonableness, necessity, and directly-related questions.
11. A doctor must testify regarding the reasonableness of the treatment, that the treatment was necessary, and that the treatment was directly related to injuries from the “accident”.
12. If there is a good primary doctor, they can usually come in because that is who normally referred out for the treatment.
13. You can send the client to a medical expert of your own. (IME). Then that provider can state that all records (treatment) and bills were reasonable and medically necessary. I.E. Dr. ______ who charges about $1,000.
14. Again, the client can testify regarding the amount of a bill, and the treatment he/she received.
15. The doctor has to testify regarding the treatment – that is was necessary because of the “accident”, that it was reasonable, and that it was necessary.
16. The trend is for doctors not to want to be involved, especially with the massive growth of WVU Hospital Systems, so work hard to meet with the doctor and have your chart and records complete and concisely organized. (I presume the Doctor can be subpoenaed, but she/he won’t be a “happy camper”. But perhaps the threat of subpoena can get doc’s attention?
17. Testimony of Treating Doctor – It is great to have the treating doctor at trial, but it is more expensive to bring the doctor to trial.
18. Normally the treating doctor’s testimony is taken by deposition a couple weeks before trial in order to get medical bills and records into evidence.
19. You will email the stuff (records/bills) to the doctor beforehand. During the video deposition you will tender things such as the medical bills total and ask that doctor to agree that the treatment provided was related to the injuries and was reasonably necessary
20. You will ask whether the treatment was related to injuries sustained in the “incident”. You will say you would like to tender that into evidence. The video depositions replaces the need to have the doctor at trial.
21. Once you retain an expert you bring them in live at trial.
22. Doctors in the Clarksburg/Fairmont area are typically $1,000 to examine the client and will typically say that the medicals are reasonably necessary.
    1. Make sure that all of the documents you need for trial exhibits are:
    2. Organized by provider;
    3. A redacted set of bills (no insurance or SSN information visible)
    4. You will need this at any deposition because that will be used as that provider’s trial testimony and the jury will see it.
    5. You will typically NOT call in a custodian of records.
    6. The doctor has to say it is related to the “incident”.

 Second Lawyer Interview

1. Regarding records: authenticity is normally stipulated with the other side and there is no need for the record custodian to authenticate.
2. You should probably use Bates stamping.
3. You pre-mark exhibits.
4. There is a difference between authenticating and admitting the documents.
5. You have to have the testimony of the doctor regarding treatment for admission of evidence.
6. If the doctor is just a treating doctor, you need to designate that treating physician as an expert.
7. You can list a treating physician as a fact witness on what treatment was rendered if not identified as an expert.
8. If the doctor is not designated as an expert, that doctor cannot testify that the treatment was needed, that the treatment was caused by the wreck, or what treatment would be needed in the future.
9. You should disclose that treating doctor as an expert. Be sure to have your checklist of questions to qualify your expert, especially a specialists!
10. WVU Hospital Systems:  sometimes you have to go take their depositions and sometimes they are willing to meet.
11. Many lawyers prepare their trial preparation on an iPad.
12. They use “Trial Pad” which is compatible with DropBox, does opening statement, witness information, and will let you number your exhibits based on where they are used in your presentation.

This post was written by Burton Hunter