Attorney Sidebar: Using on-line medical videos to learn about injuries. Here are some tips and uses.

Surgery videos. A new on-line teaching tool to understand what your client went through, whether the result of trauma or degenerative disease or congenital


Here is a sample illustration of a lumbar (L5-S1) video that shows the steps. Might be for learning purposes for patient and lawyer, but there may be sources out there that can prepare specific videos for demonstrative evidence.  Click here for the video.

I believe we are well past the point in time for a need to convince jurors, insurance adjusters and insurance counsel of the seriousness of the medical procedures. Medical terms have a tendency to enter a world of objectivity and sterility and downplay the consequences.

Case on point with “bilateral humeral fractures” or “bilateral ulna or tibia fractures” may be how the doctors describe it, but “Joe” on the street knows broken arms and the resultant loss of taking baths, combing hair, getting dressed, sleeping comfortably, washing their face, eating, scratching, going to the bathroom. Now that’s gotta be pain and suffering. And add to the pain and suffering and emotional trauma of dependency (and health and disability insurance limitations paying for needed accommodations) on others to meet your basic needs during the recovery and maybe even beyond.

A loss of dignity and a change in your quality of live in many of these functions can last a week, months or even a life time.

And to set the stage for seriousness of the rehabilitation and altered lifestyle may be best laid with not only the foundatins of the trauma from the collision (vehicular damage, injury photos, xrays of broken bones, etc.) but also the surgical process and family and friends and therapists describing the hell you are going through, either for a while or the rest of your life.

I digress a little but not that much. Here is the illustrative video for back surgery.

I am going to put in a teaching video from from one of the surgical instrumentation companies for a touch of realism to allow injury lawyers and insurance adjusters and lawyers to understand what has happened and may be to “know know”.

Be sure to find the video that most closely matches up to the procedure you wish to learn about. For example, here is a link to Johnson & Johnson’s DePuy Sythes Institute.  Goto:  https://www.depuysynthesinstitute.com

And for a little realism then click here:

 

Attorney Sidebar: Churchill with a kiss…. a kiss that Keeps It Super Simple

~ Sir Winston Churchill

All the great things are simple, and many can be expressed in a single word: freedom, justice, honor, duty, mercy, hope.

and

Broadly speaking, the short words are the best, and the old words best of all.

~ Sir Winston Churchill


When speaking to a jury, you must not talk down, nor up to them.  You should avoid jargon and trite phrases, and if you choose not to, then have a desired effect in mind.  If a defendant truck driver uses “hammer lane” instead of the “fast lane”, then by all means hammer him/her with it.

These simple words can be compared to a nation, a people, a person, a case.  Just use your imagination to employ it in your theme of your framing of the case.  They are more easily adapted for lawyers representing those wronged, injured or harmed by another.  Could be a car accident, it could be business transaction, etc.

Freedom.  Those injured severely are less than they were before the auto collision, for exampled.  Their lives are less, they are limited physically and their hopes and dreams.  Both the body and spirit can be limited.  They have lost their freedom to control their life as was their right.  They have lost the ability to do some things that they took for granted.  Basic bath and hygiene has been adjusted.  Their freedom has been diminished.  Within a business transaction, there could a loss of a business advantage, opportunity, or profit because the contractual breach limits their freedom to go on.

Justice.  Your case should not be at trial unless their was an injustice.  Justice should be on your side.

Honor.  The honorable thing is for those causing harm to take responsibility for the negligence, their wrongdoing, their failure to keep their word on an obligation.

Duty.  Easy to find in vehicular collisions, professional malpractice.  The jury instructions, standing procedures for the practice of medicine or law, the terms of a contract, the driver’s manual, state and federal safety codes, the instruction manual, and more provide the duties that must be met else someone is harmed.

Mercy. It is probably best not to use this one as a sword since it would counter many jury instructions.  It could be paraphrased as “charity” as a straw man argumentative point that your client is not seeking charity in this case, in this courtroom.  This would not be the place or the forum.  What he is seeking compensation for the breach of duty, the loss of his freedom, justice for the harms and losses sustained, and to live his life with the honor he had before so much was taken from him.

Hope.  All cases are based on hope.  Hope the jury meets their responsibility according to the law,  Their hope to live a life with their family and loved ones as close to what it was before the harms and losses.

Keeping it super simple is not limited to words, need not be spelled out, and can be best be told through the words and deeds of others.

For more on how Churchill prepared and gave his speeches that moved a nation and which might help you move a jury, click here.

 

Attorney Sidebar: On the Value of Primacy in Your Opening Statement

~ Peter Perlman

The psychological principle of primacy teaches us that people tend to believe the first explanation or impression they get on a topic. Accordingly, in a trial, jurors are most likely to believe the story they hear first (if they have a good impression of the storyteller). Once a first impression – whether good or bad – has been made, that impression will be readily retained and difficult to alter. Therefore, if you impress the jurors favorably with your version of the facts, your opponent will be hard-pressed to change the jurors’ minds.

~ Peter Perlman, “Opening Statements”, ATLA Press, 2007, page 1.

We have heard the principles of “recency and primacy” so often that I believe they are discounted, if not ignored.  But you would be ignoring these persuasion rules at your own risk.  A trial lawyer must make a favorable impression.

First minimize the negatives in the way you appear and talk to the jury.  This begins during jury selection, but hopefully builds in your favor as the trial progresses.  In voir dire, the jury gets the flavor of the case and whether you area the “go to” person for guiding them through this trial maze.  You cannot/should not jump into anything even resembling an argument during void dire, but you can set the stage and pique their interest when you make the opening statement.

Second, expand on the positives which usually begins in earnest in opening statement. There are many suggestions on how to do an opening, and I won’t digress here.  But, the rule of primacy should tell you to chose your method carefully and select your words wisely.

In it’s basic form, recency and primacy and its effect on learning is expressed as —

The Primacy/Recency Effect is the observation that information presented at the beginning (Primacy) and end (Recency) of a learning episode tends to be retained better than information presented in the middle.

Click here for source of this quote.

I include an article from Courtroom Sciences, Inc by Bill Kanasky, Jr. Ph.D. will digs deeper on this topic, entitled The Primacy and Recency Effects: Secret Weapons of Opening Statements

Attorney Sidebar: Peter Perlman on a Simple Approach to Opening Statements

~ Peter Perlman

I am straightforward and use everyday language. I make a conscious effort to avoid analogies like “the opening statement is like a roadmap” and “the opening statement is like a jigsaw puzzle, and as a case develops you’ll be able to see how the various pieces fit into this puzzle.” I prefer to use a direct approach and to simplify complicated or technical issues as much as possible. The roadmap and jigsaw puzzle references suggest that the case is complicated, and the average person is likely to be turned off by complicated explanations

~ Peter Perlman, “Opening Statements”, ATLA Press, 2007, page 41.

Comment:

In this small paperback, renown trial attorney Peter Perlman, addresses several of his opening statements by annotating them with comments and analysis.  Revelations into the inner workings of the law are rarely this specific and even more rarely memorialized in print.

This particular case dealt with a farm employee’s injuries when his arm was trapped in a corn-picker that had little to no modifications in design for 50 years.  However, the guidance of talking like a person, a real person, is critical.  Use simple terms if possible and don’t waste time on a long windup about roadmaps and puzzles which talk down to them (and most think this is adding clarity when it is potentially insulting, and even more insulting if involving matters within their common experiences and understanding such as automobile collisions or slip and falls.

Attorney Sidebar: Three Weapons of the Insurance Defense

Rick Friedman and Patrick Malone

The defense wields three weapons to defeat plaintiff’s cases that should be won:
*  Complexity
*  Confusion
*  Ambiguity

Complexity, confusion, and ambiguity are insidious enemies. They creep up when you are not looking. They rarely attack head on. They are particularly abundant and pernicious in complex cases such as insurance bad faith or medical malpractice. This is because both the facts and the jury instructions in these cases are often complex, confusing, and ambiguous. But these enemies appear in simple cases too.

Sometimes, complexity, confusion, and ambiguity are inherent in the case; other times, they proliferate due to conscious defense strategy of confounding the jury and judge with endless, and immaterial detail. In either event, you must defeat complexity, confusion, and ambiguity, or they will defeat you.

~ Rick Friedman and Patrick Malone, Rules of the Road, page 1-2.

These three descriptors are not new.  They have been known by other names, other phrases.  “Rabbit trails”, “smoke and mirrors”, “misleading”; and some have described the defense as “whack the weasel” to divert the opponent from the real issue.

The response of some was to “stay focused”, “keep your eye on the ball”, “don’t take the bait”, etc.  And although this appears to be aimed at those defending cases, the cloud of chaos and confusion is a maneuver available in any case to shroud the weakness, downplay the problem, deflect a counterpunch, waste time and divert resources.   When you take the bait, then there may be a critical issue that can get lost in the tall weeds.

To keep your eye on the ball, I suggest the often advised (but rarely implemented) admonition to draft your instructions early on.  No matter how many times you have tried the same type of case.  Back to basics and reexamining those elements, those statutory or regulatory duties, and more are how you prepare your order of battle and plan of attack or defense.

Experienced judges see and know this, and must keep the focus and watch out for endless motions, papering the case, and attempts to divert time and precious resources of the courts, the lawyers, and the litigants from seeking justice.  Some call a trial a chess game.  A trial is not a game, and it is too serious for those who want to play at it.

Attorney Side Bar: Being Prepared

Norma Foster Adams

We had a lawyer named H.K. Spear who was sort of a character, and one day the judge said ‘General’ (they called him General because he’d been with the Kentucky Attorney General’s Office). ‘Will you give me some law on that?’ [And] He said, ‘Judge, if I had it, believe me, you would have already had it!’

~ Norma Foster Adams
Kentucky Lawyers Speak”, page 19. 

When the judge ask you if you have any law on a position, will you have an answer in the ready.

Are you prepared to provide precedent on point or which can reasonably be extended to support your position.  If the precedent looks bad for you, can you distinguish it on facts or law or both?  And if the law is silent on your exact point, is there law from another jurisdiction that is probative that would help?  And never, ever forget the equitable reasons that your cause is just. Something more than, “no can do.”

Be prepared, be ready, be responsive.

Walter Gretzky had some pretty good advice for his superstar hockey player of a son — Wayne, “Skate to where the puck is going, not where it has been.”

You got to see the where the puck is going to be ready to plan your next move.

From “Kentucky Lawyers Speak”, Norma Foster Adams, page 19.

Gerry Spence: “Art, Life and the Law” Part Ii from the Wyoming Chronicle

Also a little on the Trial Lawyer's College

The story of the lawyer who could not lose. In part one of our interview with Gerry Spence, host Richard Ager speaks with Spence about his life and famous cases and with 50 attorneys from around the country who are enrolled in Spence’s Trial Lawyer’s College located outside Dubois, Wyoming. Be prepared to be surprised by some of the teaching methods at the college.

Case Note: Ronald Eggemeyer vs. Dr. Ted H. Jefferson, COA, Published 6/12/2015

Mistrial granted when insurance defense lawyer repeately disobeys trial judge's order on defenses AND second mistrial in med mal case following defense misconduct

COAPanel.Lambert.Jones.Acree

Court of Appeals Judges Lambert, Jones and Acree

Ronald Eggemeyer vs. Dr. Ted H. Jefferson, COA, Published 6/12/2015

[Editor’s note: This decision reflects a major miscarriage of justice which will result in a third trial on a medical negligence issue.  It is a worthy read and should be an eye-0pener to insurance companies and judges alike on the abusive techniques that a defense lawyer feels free to take.  Judge James Lambert wrote a well-reasoned and clearly delineated opinion, joined by Judge Jones, with a dissent by Judge Acree invoking the name of Henry Clay reading a the new trial standard as unchanged over the years as the starting point that an abuse of discretion is relative and did not occur in the case sub judice.  Of course,  I am reminded of more sound legal thought than Henry Clay simply opening a book; wisdom that can be found in the jurisprudential thought of Oliver Wendell Holmes, to wit:

“It is something to show that the consistence of a system requires a particular resuly, but it is not all.  The life of the law has not been logic; it has been experience.  The felt necessities of the of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.” O.W. Holmes, Jr., The Common Law, 1881, page 1.

Keep in mind further that the events that transpired in this case have broader applicability because at the heart of the order was that the defense could not profit from the taking of proof by a mistrial it had caused and thus use this additional time to build up their defense.  Nothing in this opinion questioned the legitimate ends of the trial judge’s order forbidding the defense to from using new evidence, theories, defenses, etc.

Now compare this to you having a trial date, and you are meeting all the pretrial deadlines, to include expert disclosures, then one side or the other asks for a continuance with a new trial date. Should the person seeking the continuance be allowed a new set of pre-trial deadlines or should those deadlines be frozen in time and/or requiring the party or parties to meet those deadlines as stated based upon the original trial date and the only change being the pretrial and trial dates?  Or your trial date gets bumped by the court’s crowded docket?  Just a thought.]

The appeal was before Chief Judge Acree and Judges Lambert and Jones with Judge Lambert writing the majority opinion, Acree dissenting, and Jones concurring but adding a concurrence. The COA reversed and remanded.

Here we go (with all quotes from the actual opinion):

This is a medical malpractice case arising out of the underlying Defendant, Dr. Ted Jefferson’s, alleged failure to properly repair Eggemeyer’s broken arm by placing enough screws below the fracture site and by failing to diagnose a post-operative infection. The first trial in this case took place in August 2012. During that trial, Dr. Jefferson violated the court’s instructions and orders by repeatedly referring to Eggemeyer’s medical insurance. The trial court declared a mistrial and held Dr. Jefferson in contempt, but did not make a determination of the sanctions until after the second trial.

* * *

Additionally, after the mistrial, the Court instructed counsel that the case would be retried as it now sits. There would be no new experts or theories or anything else that was not disclosed in the first trial. This was in an effort to keep the costs to a minimum and to shorten any delay in retrying the case.

Following the mistrial, Dr. Jefferson replaced attorney E. Frederick Straub with attorneys Scott Whonsetler and Jeffery Thompson.  Plaintiff then renewed the above motion at a pre-trial conference, and the court reiterated its position and the new “Defense counsel stated that they would abide by this ruling.”  Defense counsel did not, and plaintiff submitted a brief address 12 of the most egregious errors etc., and following a hearing the Judge Craig Clymer issued the following oral ruling (followed by a written order):

And I mean not even get up and tiptoeing to the line. Because, this is a pretty egregious violation of the rules, and it’s an ambush. And, particularly I think when we were sitting there yesterday talking about this and saying no new issues of legal liability in this case, I think you’re sitting there and you knew that you were going to do this. And, we couldn’t pull it out of you. And you stand up in front of that jury and tell them that, you completely went against the ruling of the Court, in doing that. And so, I don’t know…I don’t know what the outcome is going to be right now other than I’m going to be watching to make sure we don’t get anywhere near any of that. And, Dr. Jefferson as well. Now, you may be asking some question and, if Dr. Jefferson believes he’s going to bring that in, I have no problem at all with enforcing the Court Order by either a civil contempt, or a criminal contempt. And the civil contempt or criminal, either one can be by imposing fines or it can be jail. And, I don’t tend to try this case another time. And so, ya’ll [indicating Whonsettler and Dr. Jefferson] need to get your act together on this. And, if I hear anything, I don’t have time to go through all of these things and say, “Ok, We can’t do this. We can’t do that.” This is all stuff that should’ve been handled by reputable attorneys, ethical attorneys, a long time ago. That here’s what this trial is going to be about, and we understand. Maybe I just have the luxury of dealing with attorneys who play fairly and by the rules, and I don’t have these problems.

And defense counsel, still failed to follow this order –

During closing arguments, Mr. Whonsetler again referenced Dr. Jefferson placing “three screws below the fracture line.” Eggemeyer again objected and the trial court ruled from the bench, “And I just know now, again, you have violated a Court order in this case.” The court admonished the jury to disregard the statement. Undeterred, Mr. Whonsetler immediately turned to the jury and said, “Ladies and Gentlemen, you will have the x-rays. Take a look and you will see that below the fracture line there are three screws that go from cortices to cortices. The cortices are the white portion of the bone, at either side of the bone and you will see that. You can measure it up against the original film and you will see that it is beneath the fracture line.” Eggemyer objected again, and the objection was sustained; however, counsel was not permitted to approach and no admonition was given. The court stated, “Just go on to something else. I’ll decide how we’ll handle that.”

The jury returned a defense verdict, and the plaintiff appealed claiming the trial court abused its discretion denying his motion for a new trial.  Dr. Jefferson cross-appealed the award of sanctions against him for attorney’s fees of $58,858.82 (and the court stating these were because of Dr. Jefferson’s direct defiance of its orders throughout the first trial).

[Editor’s note: Nothing in the appeal showed defense counsel attempting to preserve these issues by an avowal.]

As the Court of Appeals held:

We agree with Eggemeyer that CR 59.01 is absolutely designed to prevent the conduct that occurred in the instant case. The trial court clearly and unequivocally ruled, after first declaring a mistrial, that the second trial would not be an opportunity for the defense to present new theories or evidence. In fact, the trial court explicitly prohibited the defense from presenting the exact evidence and theories they attempted to get in during the first trial. While Dr. Jefferson attempts to couch this as an innocent mistake of the trial court’s meaning in his brief to this Court, we are not persuaded. Instead, we agree with the trial court that defense counsel attempted to ambush Eggemeyer and directly violated specific repeated orders of the Court. The record reflects a clear intent by defense to proceed however they pleased, in direct contradiction of the trial court’s instructions and in direct contradiction of the promises they made to the court prior to the beginning of the second trial.

To be clear, we hold that the trial court’s failure to grant Eggemeyer a new trial was an absolute abuse of discretion, and we find palpable error under CR 61.02. [emphasis added].

With regard to the sanctions, the Court of Appeals held:

Dr. Jefferson argues that the amount of sanctions was excessive, contending that Eggemeyer’s counsel was likely paid on a contingency basis. A review of the record indicates that the trial court considered the amount of sanctions and lowered the amount from that originally requested by Eggemeyer. We do not find the sanctions to be excessive and will not disturb them on appeal.  * * *

Judge Jones joined in the majority opinion and filed a separate concurring opinion–

I join in the majority opinion, but write separately because I do not believe that it was necessary for the majority to engage in a palpable error review. The palpable error standard is reserved for review of unpreserved errors. I believe that Eggemeyer preserved the new trial issue making palpable error review unnecessary.

Eggemeyer objected throughout the trial to argument and evidence concerning the new theories. Despite being repeatedly instructed to avoid those issues, defense counsel persisted in inserting those issues into the trial from the beginning to the end of the trial. While each isolated incident may not have been enough to warrant a new trial, the cumulative effect of repeatedly hearing those -15- theories referred to throughout trial, without a stronger admonition from the court, cannot be ignored. Indeed, the statements so infected the trial one wonders whether any admonition would have been effective to cure the prejudice.

“This court has condemned, in every instance when it has been brought to its attention, statements made by counsel not supported by the record, and where such statements are persisted in, and a party recovers a verdict when it is reasonably inferable that the improper statements affected the minds of the jury, the judgment should not be allowed to stand.” Connecticut Fire Ins. Co. v. Colker, 16 S.W.2d 761, 762 (Ky. 1929).

Judge Acree’s dissent wiped away the cobwebs from the books as he referenced the statute from the 1851 Code, raised the name of Henry Clay, and compared the code to what was then to what is now with a heavy reliance upon the trial judge’s discretion.  In fact, cases granting the trial judge “wide legal discretion” and “very strong reasons for granting a new trial” from 1984 and 1952, respectively came to the forefront of his analysis.  Judge Acree then states “Nothing in our jurisprudence suggests we are today less reluctant to find abuse of a trial court’s discretion on this issue. That discretion is my touchstone.”

The dissent then gets confusing from this point forward when Acree refers to legal authority stating

Where an attorney “‘deliberately go[es] outside the record in the jury argument and make[s] statements, directly or 3 The motion was made and granted in open court but the order was entered on November 19, 2012, after the jury deliberated following the second trial. -20- inferentially, which are calculated to improperly influence the jury,’ . . . prejudice . . . may be presumed.” Smith v. McMillan, 841 S.W.2d 172, 175 (Ky. 1992) (quoting Louisville & N.R. Co. v. Gregory, 144 S.W.2d 519, 522 (Ky. 1940)). But what, in practice, does this “presumed prejudice” mean?

* * *

Prejudice varies by degree.

* * *

Skilled practitioners make use of the variability of presumed prejudice as part of their trial strategy. While a counsel’s reference to facts not in evidence occurs accidentally from time to time, 4 it would be naïve to presume it is never the result of counsel’s conscious decision and intentional act. How far to push this envelope is trial strategy. How opposing counsel reacts is also trial strategy. While all improper argument will justify sustaining an objection to it, the offense may be so slight that opposing counsel, as a matter of trial strategy, will choose not to object 5 or, if she does object, will choose not to follow up by requesting an admonition.6 Counsel must weigh both the effectiveness and impropriety of an argument before requesting an admonition, knowing that the admonition will repeat and even showcase it.

The remainder of the dissent then seems to bounce around trial strategy and the use of objections and admonitions.  “At this point, again, strategy comes into play. Counsel objecting to the improper closing must decide whether to move for a mistrial, i.e., ask the trial court to discharge the jury before a verdict is ever reached. However, doing so has an effect similar to objecting or seeking an admonition – it brings further attention to the improper comments. Counsel must then undertake an analysis similar to that just outlined. ”

And, the concluding paragraph of the dissent goes – –

Though the case before us may be closer than others, I simply do not see “very strong reasons for granting a new trial [or] reasonable certainty that injustice or wrong would result” by affirming the trial court’s exercise of discretion here. Gray v. Sawyer, 247 S.W.2d 496, 498 (Ky. 1952). Clear it was that the trial court did not appreciate the liberties taken and indiscretions exercised by Dr. Jefferson’s counsel. That is evident from the trial court’s rebukes and admonitions. But while the trial court sanctioned Dr. Jefferson by a separate order, the court did not sanction counsel for improper conduct. Because the trial judge was in a better position to make the determination whether a new trial was justified, and because this is not a case clearly justifying reversal of that determination, I would affirm.

[Editor’s Note:  It would seem that “trial by ambush” and repeatedly ignoring trial court orders goes beyond the pale of inadvertence and, in my opinion, strikes at the very heart of justice.  This is not gamesmanship where counsel’s abuse of the rules amounts to trial strategy which then forces opposing counsel to make trial strategy decisions in response to intentional misconduct.  The insurance lawyer, in this case of the second trial, did more than play fast and loose with the law and trial orders, he exhibited open defiance and disrespect which ambushed plaintiff’s counsel, and should not be characterized as boys will be boys.  Odd and unusual case, and while those on Olympus play, the mere mortals pay because with a third trial on the horizon it is beyond cavil that it now appears that justice delayed is nothing more than justice denied.  Those old equity principles have a moral foundation to them which should not escape their application to achieve the ends of  justice today.

Editor’s Note:  Why weren’t these issues raised by Whonsetler in the second trial raised by Straub in the first trial?]