Birmingham Injury Blog

Paul Luvera has a great post on ten rules lawyers who represent injured folks must adopt and commit to having.

I was going to give you some of these but I want for you to read all of them at Paul's excellent blog.

Thanks Paul for good stuff there!

John Watts
Birmingham, Alabama

Plaintiff Lawyer Trial Tips has posted a helpful article with some tips on how to proceed when telling your story in front of a judge or jury in court.

Start the story with the defendant and not the plaintiff:

When a series of focus studies were done across the country the outcome confirmed what was already an accepted fact. That fact is that people apply "availability bias" as listen to a story and immediately begin to fill in the blanks by asking themselves questions about the behavior of the activity they are told about. They immediately raise issues in their own mind about the conduct of what went on focusing on negative possible factors that might explain what happened. If you start your story by talking first about the defendant’s conduct, the Jurors will construct their understanding of the case in the context of the defendant’s behavior. Questions about why the defendant did or didn’t something that caused it to happen are raised as you describe the conduct. You want the initial focus on the negligent conduct of the defendant.

You need to create a "good guy vs. bad guy" picture in the jury's heads in which the plaintiff should have known better and seen the accident coming. Also, if the plaintiff goes first, they control the sequence the story of the incident is told as well as the order of witnesses.

Plan the order in which to tell the story:

"Sequencing" your timeline is very important. The story has to make sense so the jury can fill in the blanks in their minds. It's suggested you begin with the defendant's conduct. As jurors concentrate on that, they will develop their own story and seek evidence to support it.

The sequence of proof strongly influences decisions. Therefore, the first witness is most important. This is the witness that should connect facts, give them meaning and influence decision makers. The principles of primacy and sequencing go hand in hand. Sequencing is about the order of topics in a story, not the order of facts. Primacy deals with the fact we tend to believe what we first hear.

The normal story sequence is:

(1) Step one: What happened? who, what, when, where and how?
(2) Step Two: How could it happen? Why - what went wrong?
(3) Step Three: What were and are the consequences?

The plaintiff who goes first in trial basically has complete control over the jury's first impressions of the "evil" defendant.

The Chicago Personal Injury Blog has posted an article that discusses why an autopsy is a double-edged sword when dealing with an untimely death.

The article says that an autopsy can shed light onto the cause of a loved one's untimely death and can help the medical examiner fill in the blanks of what happened. Loved ones can also be comforted by autopsy results. Sometimes knowing what happened is a comfort and alleviates feelings of guilt they might have over not noticing symptoms.

In other cases, autopsies can determine whether someone died of a hereditary disease that may affect other family members and provide clues for the future health of the survivors.

However, autopsies are expensive and there's no guarantee one can answer all the questions surrounding a loved one's death. Autopsies can cost $3,000-$5,000, according to this article and still might not provide all the answers.

The Baltimore Injury Lawyer Blog has posted an article that discusses how defense doctors may be an unreliable source and give biased information in court.

Defense doctors are often paid handsomely by insurance companies and/or defense lawyers to side with them. This article suggests using a subpoena to obtain the doctor's tax records of the past year and see how much he was previously paid for his testimony.

The doctors do not like this very much. Usually the response we receive is a Motion for Protective order from the doctor’s attorney asking that the records not be produced. If the court orders that the financial records be produced, usually that is the last you see of the DME doctor. Doctors will generally refuse to testify before producing these records.

The doctor's refusal to testify validates the assumption that his opinions are probably being swayed in the form of a check.

NY Medical Malpractice Video Tutorials has posted a video in which Gerry Oginski discusses the pros and cons of an autopsy.

Oginski says an autopsy can be a "double edged sword" in that it may confirm or deny the legitimacy of a wrongful death suit. It might show that the person died of natural causes and dismiss the charge of malpractice; or it can confirm that the person's death was brought on by medical malady.

In cases where religion prohibits an autopsy, Oginski says it is possible to get the medical records and "piece together" what the probable cause of death was. He says that in the state of New York, it only has to be proved that a doctor's or hospital's treatment "more likely than not" caused the person's death...absolute proof is not necessarily needed. The same is true in Alabama - we must show the death was more likely than not the result of the malpractice.

Our friend John Bratt has a good post about some thoughts from a judge on how we as lawyers should act in litigation cases. Check it out and subscribe to John's blog Baltimore Injury Lawyer Blog.

I was in a deposition the other day and while watching my client answer the questions, I was reminded of a couple of pointers. My client was attempting to testify to the best of her ability, but had a hazy memory of the events. While this is certainly not devastating to the case, it might at a later point bring her credibility into question. At the very least, if the other side has what appears to be a clearer memory or record of the events, it may likely cause the jury to tend to side with their version.

Cases often take a year or more to get to trial. It can be difficult to remember the events clearly, especially when issues of the timing of events or how you felt at a particular time become important. We recommend that as early in the case as you can, sit down and hand write everything you can think of about your case. Start by writing down chronologically what things happened, when they happened and how they hurt or injured you or how they made you feel.

Later, when you are required to recite this in a deposition or at trial, you will be able to prepare and review your notes to help you remember what happened.

The only downside to keeping these type notes is that if they were made by you, on your own, and not at the request of your attorney, then the other side may be able to obtain a copy through discovery. Remember in preparing these notes, only right down what happened and the pain it caused you or how it made you feel at the time. Keep your editorial comments about the events or people involved to a minimum. If you are concerned about the other side seeing these notes, then simply do no keep them. Also, if you start writing these notes, then you should do so frequently so that you will later have an accurate picture of what happened. When you keep notes and fail to record something, it can later be treated by the other side as if it did not happen. So remember, if you start, be diligent!

If you are currently involved in a lawsuit, we recommend you consult with your attorney before undertaking such note keeping.