Day On Torts : Tennessee Injury Lawyer & Attorney : John Day : Personal Injury, Accidents : Serving Memphis, Nashville, Knoxville

Jury Research Institute has a fine article about the all-important task of witness preparation. 

The article breaks down the preparation process into three stages:

• Stage 1 involves orienting the witness to the courtroom and the roles of the people who the witness can expect to see in the courtroom.
• Stage 2 addresses the content of the witnesses testimony, starting from a global perspective and working toward the specifics of the testimony.
• Stage addresses communication skills.

You will find that this article will help you in your efforts to prepare your witnesses for trial.

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The Federal Rules of Evidence have been "restyled" effective December 1, 2011.  The  objective was to make the rules simpler to understand and use without substantively changing the meaning.  

The Federal Evidence Review has a free PDF that not only contains the new rules but also links to legislative history, links from the index to each rule, the ability to search the rules within the PDF using Adobe's "search" tool, and other benefits as well.

You can download the PDF here.  The old version of the rules may be seen here.

Rule 1005 (Public Records)  is a good example of the restyling of the rules.  This is the text of former 1005:

The contents of an official record, or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by copy, certified as correct in accordance with rule 902 or testified to be correct by a witness who has compared it with the original. If a copy which complies with the foregoing cannot be obtained by the exercise of reasonable diligence, then other evidence of the contents may be given.

Here is the text of new Rule 1005:

The proponent may use a copy to prove the content of an official record — or of a document that was recorded or filed in a public office as authorized by law — if these conditions are met: the record or document is otherwise admissible; and the copy is certified as correct in accordance with Rule 902(4) or is testified to be correct by a witness who has compared it with the original. If no such copy can be obtained by reasonable diligence, then the proponent may use other evidence to prove the content

 Thanks to the  Federal Evidence Review for sharing this information.

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Two lawyers in Connecticut recently made news when they elected not to put on proof of economic losses in a trial of a personal injury case, instead focusing on non-economic damages.  The result?  A verdict for $10 million in non-economic damages.

The case arose when representatives of Segway failed to give the plaintiff a helmet during a test drive of the device.  The plaintiff fell, hit his head, and had a mild traumatic brain injury.  Plaintiff lost his sense of taste and smell.  There was no notable loss of mental functioning.

The Connecticut Law Tribune reports that "Adelman [one of the plaintiff's lawyers] said he didn’t want to distract the jury with claims for medical treatment, lost income or attorney fees. If the jurors had those figures, he said they would not be tempted to use a formulaic multiplier of economic damages to arrive at non-economic damages. 'We didn’t want the jury to be thinking about what the doctors get, 'or what the lawyers get,' said Adelman, “because the case was about John.'”
 

The defense counsel said that the decision to forego proof of economic loss was  "a unique, almost never-seen-before strategy.”  That is true - especially the "almost never-seen-before" part.

My mentor, John Conners, used the exact same strategy in a case I helped him try in 1983.  Our client was burned by a flaming drink.  Mr. Conners made the decision not to put on proof of medical bills (which were over $70,000, a significant amount at the time) because he did not want the jury to think about small numbers. The result was the first million dollar verdict in a personal injury case in Nashville.

Mr. Conners' decision of almost three decades ago and this most recent success story reminds us of the need to approach each case with an open mind.  The automatic response to trial preparation and presentation is to advance proof on each element of damages.  The best lawyers approach each case as a unique one,  and make an effort to determine the best way to present the evidence in that case.  These lawyers also discuss that decision with the client in advance of trial.

Thanks to Torts Prof for sharing the report of this case.

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While driver distraction studies have produced mixed results, FMCSA research shows that using a hand-held cell phone while driving requires a commercial driver to take several risky steps beyond what is required for using a hands-free mobile phone, including searching and reaching for the phone. Commercial drivers reaching for an object, such as a cell phone, are three times more likely to be involved in a crash or other safety-critical event. Dialing a hand-held cell phone makes it six times more likely that commercial drivers will be involved in a crash or other safety-critical event. 

Nearly 5474 people died and half a million were injured in crashes involving a distracted driver in 2009. Distraction-related fatalities represented 16 percent of overall traffic fatalities in 2009, according to National Highway Traffic Safety Administration (NHTSA) research.

Under the new rules, hands-free use of a mobile telephone is allowed using either a wired or wireless earpiece, or the speakerphone function of the mobile telephone. Wireless connection of the mobile telephone to the vehicle for hands-free operation of the telephone, which would allow the use of single-button controls on the steering wheel or dashboard, would also be allowed.

The text of the new federal rule may be found here.  FAQs on the new rule may be accessed here. More information on distracted driving is available here.  This page details the laws of the various states on the subject of cell phone and texting while driving.  Finally, here are various studies on the subject of distracted driving.

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This article by an emergency room physician in Texas providers a good summary for the evaluation of chest pain in the emergency room.  

The article explains that "The decision to discharge a patient who presents with chest pain as the primary complaint should be made only after careful consideration of potential consequences. Patients with myocardial ischemia (MI), angina, pulmonary embolism, dissecting aortic aneurysm, or pneumothorax all can present with chest pain. Your evaluation and documentation should take into consideration all of these high-risk conditions."

The author explains the importance of documentation with these words:

Use the following guidelines to establish consistent documentation habits.

• Remember the chief complaint. Given the presenting symptom, document pertinent negatives that rule out high-risk possibilities.
• Document pertinent positives that support your diagnosis, treatment, and disposition of the case.
• Double-check your documentation to see whether the chief complaint, history, and your findings support the diagnosis.
• Directly address any suspicion of MI, pneumothorax, dissecting aneurysm, or pulmonary embolus. Verbalize your suspicions, and note them in writing.

This article was written over 20 years ago, but a professional liability insurer still considers it to be so valuable that it is included on its website as a resource for emergency room doctors. 

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A law student at the University of Texas, Michael T. Raupp, has written a note in the Texas Law Review  (Issue 90, Volume 1) titled "The Multiplication of Indivisible Injury."   The work is critical of the handling of the subject by the Restatement (Third) of Torts, which prompted a response by the Reporters.

This is a complicated area of the law, and Raupp does a good job gathering case law and describing the applicable public policy concerns. 

As Raupp, explains, "the indivisible injury doctrine,  [which operates] as an exception to the causation component of damages,  rescues the plaintiff from the position of not being able to recover simply because he happened to encounter two negligent actors instead of one.  Additionally, it prevents the tortfeasors from escaping liability for their negligent acts simply because the hapless plaintiff was injured a second time."

Here is how Raupp outlines his note:

When the indivisible injury doctrine intersects with bar-to-recovery provisions, or if the case involves nonparties, the operation of the doctrine can lead to questionable results.  This Note describes the progression and consequences of this doctrine in four parts.  Part I provides necessary background and traces the development of the indivisible injury doctrine.  Part II defines in detail the jury procedure followed in indivisible injury cases, and it then discusses two significant paradoxes created by the use of this jury procedure.  Part III advocates taking a narrower view of the indivisible injury doctrine to limit the instances in which its application is problematic.  Jurisdictions should adopt more stringent requirements for using the indivisible injury doctrine, and they should also give judges, as well as juries, the opportunity to decide cases on other grounds before resorting to indivisible injury.  Part IV concludes.

[The article] describe the development of indivisible injury jurisprudence and its evolution in the Restatements. Professor Green and President Powers address Mr. Raupp’s arguments regarding the narrowing of the doctrine, but their analysis leads to a different conclusion, namely that "Apportionment in the face of evidential uncertainty is conceptually messy and does not nourish our appetite for logical ordering.  Yet our judgment is that the alternative is worse, so the law should make this accommodation, appreciating the trade-offs involved."

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The Supreme Court of South Carolina has ruled that a father playing catcher in a softball game who was injured during a collision at home plate did not have a claim against the baserunner. 

In Cole v. Boy Scouts of America, Opinion No. 27072 (S.C. S. Ct. 12/5/11), South Carolina's Supreme Court affirmed a grant of summary judgment in favor of the baserunner (Wagner) who collided with the plaintiff's husband at home plate.  Plaintiff's husband sustained a serious brain injury in the collision.

Defendant Wagner moved for summary judgment contending that he owed no duty to Plaintiff's husband because because he (the husband) assumed the risks of playing the sport of softball. Plaintiff alleged that Wagner's behavior was inconsistent with the ordinary risks of softball because the game was intended to be noncompetitive.  He also argued that Wagner violated a rule of the game, and he acted recklessly.

The Court found that no duty was owed to Cole, saying as follows:

 A risk inherent in a sport can be found at any level of play, possibly more so in a non-professional arena where the players engage with less skill and athleticism.  While Cole was playing a casual game in which the teams did not even keep score, he was still playing softball, which is a contact sport.  Where a person chooses to participate in a contact sport, whatever the level of play, he assumes the risks inherent in that sport.  See Landrum v. Gonzales, 629 N.E.2d 710, 714 (Ill. App. Ct. 1994) (noting that the relative inquiry into the standard of care is whether the sport is a contact sport, which should be determined "by examining the objective factors surrounding the game itself, not on the subjective expectations of the parties"); Keller v. Mols, 509 N.E.2d 584, 586 (Ill. App. Ct. 1987)("[I]n determining whether a sports participant may be liable for injuries to another player caused by mere negligence, the relevant inquiry is whether the participants were involved in a contact sport, not whether they were organized and coached.").  Therefore by playing softball, Cole assumed those risks that are integral to the sport of softball, which includes the risk of a collision at home plate. 

Appellants accordingly contend that Wagner violated a rule of softball by "running over the catcher during a play at home plate," and therefore his conduct was outside the scope of the game.  However, the risk of someone violating a rule of the game is one of the risks taken when engaging in a sport. See Landrum, 629 N.E.2d at 714 (citing Oswald v. Township High Sch. Dist. No. 214, 406 N.E.2d 157, 160 (Ill. Ct. App. 1980)) (noting that "rule infractions, deliberate or unintentional, are virtually inevitable in contact games" and thus a different standard of care in such sports is justified).  If no one ever violated the rules, then there would be no need for penalty shots in basketball, a penalty box in hockey, or flags on the field in football.  Collisions at home plate are common, mainly because catchers often attempt to keep a runner from scoring by blocking the plate with their body.  Even if a rule prohibits running into the catcher, that fact alone is insufficient evidence to show the injury resulting from the violation of the rule was not inherent in the sport. 

As a final matter, Appellants argue that even if mere negligence may be outside the duty of care, Wagner's conduct was reckless and therefore outside the scope of risks assumed in the game of softball.  "[R]ecklessness or willfulness may be inferred from conduct so grossly negligent that a person of ordinary reason and prudence would then have been conscious of the probability of resulting injury."Yuan v. Baldridge, 243 S.C. 414, 419, 134 S.E.2d 248, 251 (1964).  "[R]ecklessness implies the doing of a negligent act knowingly . . . [or] the conscious failure to exercise due care."  Id. (quoting State v. Rachels, 218 S.C. 1, 8, 61 S.E.2d 249, 252 (1950)).  "Due care" can be defined as "that degree of care which a person of ordinary prudence and reason would exercise under the same circumstances."  Berberich v. Jack, 392 S.C. 278, 287, 709 S.E.2d 607, 612 (2011) (quoting Hart v. Doe, 261 S.C. 116, 122, 198 S.E.2d 526, 529 (1973)).  [Further omitted.]

The Court left open the possibility that some acts could trump the no-duty rule:

We emphasize that this holding is limited to recklessness committed within the scope of the game and does not include intentional conduct by a coparticipant of a sport, or conduct so reckless as to be outside the scope of the game.   Even within the context of a contact sport, players owe reciprocal duties to not intentionally injure each other.  Cole does not allege that Wagner's conduct was intentional nor does he allege such recklessness as would fall outside the scope of the game of softball.  Thus, Wagner's conduct fell within the duty of care he owed to Cole as a coparticipant in the game.  [Footnote omitted.]

My guess is that Tennessee's appellate courts would reach the same result under the facts as stated in the opinion.  For an older Tennessee case involving injury to a softball catcher, see Brackman v. Adrian, 472 S.W.2d 7355 (Tenn. Ct. App. 1971) (school was not negligent in case where softball catcher injured in schoolyard game; decision seems inconsistent with current law concerning the scope of review of court-approved jury verdicts.)

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Alexandra Rudolph has written an informative article titled "Trial Techniques:  What Lawyers Should (and Should Not) Worry About in the Courtroom."

Ms. Rudolph, the owner of a Chicago jury research firm,  believes that "attorneys spend too much time worrying about things they can’t control, such as opinions expressed during jury selection, and too little time considering how their trial team appears to the court or what a judge might find most helpful."

The Number One thing lawyers should stop worrying about?  "Graphics will make me look 'too slick.'"

Jurors not only appreciate lawyers who use technology and graphics to explain their case; they expect it. Jurors are regular people too, after all, and are familiar with technology and use it in their everyday lives. Why should a courtroom be any different?

Lawyers who resist audio and video components, well-made charts and graphics and other uses of technology look outdated, especially if the other side is using them. Unless there were problems with the technology, such as poor audio or long pauses to pull up a document, the side that embraces advancements in courtroom presentations can come across as more polished and better prepared.

The Number One thing lawyers should worry about?  "Technology misfires"

Technology can make an attorney seem savvy, unless they don’t know how to use it. Dead air time while someone fumbles with technology makes minutes feel like hours. Waiting for documents wastes court time, irritates judges and makes attorneys look like amateurs.

As Laura Dominiak, a professional trial technician from Legal Visual Services, explained, “When lawyers try to do it themselves and it doesn’t work, the attention turns to the person running the system and away from the evidence.”

Presentation should be a seamless part of the testimony, and appear so effortless that there isn’t a break whatsoever. That way, concentration remains on the exhibits, documents and testimony.

And beware of misused technology. Laser pointers, for example, should be banned from courtrooms. The light jumps around too much, it is hard to see and has all the personality of Styrofoam. Jurors should see a connection between the information and the lawyer. Using a laser pointer creates a separation between the graphic and attorney or witness. Laser pointers also can be a dead giveaway if the user is nervous. Jurors see that shaking red light and draw negative conclusions about why the person is nervous: “He must be hiding something. Is he being dishonest?”

Instead of using a laser pointer, walk directly up to the screen and point or use a pointer that can be held to allow greater interaction with the graphic.

 Thanks to Evan Shaeffer for directing me to this article.

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This article from www.claimsjournal.com reveals data from the Physician Insurer's Association of America on the monies spent on defense costs in medical malpractice cases.

The PIAA reviewed closed claim data for 2009 and found that the average defense costs for medical malpractice lawsuits was $69,244 for cases that settled and ranged between $140,000 and $170,000 for cases that were tried.

The rates paid were not disclosed.  The article did not discuss whether "defense costs" included expenses such as court reporter fees, expert witness fees, etc.  Given the numbers that were disclosed, I assume that such expenses were not included in the amounts.

The numbers are not surprising and, if anything, are a little lower than I would expect.  Of course, these are average figures, and my guess is that the cost of defending birth trauma cases and multi-defendant cases are substantially higher.

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