Birmingham Injury Blog

The Chicago Personal Injury Blog has posted an article that discusses a lawsuit brought against an Illinois-based Walgreen's pharmacy. A 77 year old man was prescribed anti-gout medication, but the pharmacy accidentally gave him a medicine that lowers diabetics' blood sugar. His kidneys failed as a result and the jury awarded him $6.35 million in compensatory damages. The man died during pretrial proceedings. The pharmacist who filled the prescription was called into court.

At trial, the Walgreen's pharmacist testified that he incorrectly filled the decedent's prescription. Evidence was also presented that suggested the pharmacist was abusing narcotics and stealing pharmaceuticals from the Walgreen’s store. The evidence showed that the pharmacist did not remember if he was taking drugs on the date of the misfilled prescription.

According to Robert Kreisman, author of the article, in the trial, the attorneys for the decedent said that Walgreen's failed to keep an accurate inventory when it came to government controlled medications. They said

if Walgreens had been paying attention, then this pharmacist would have been fired much sooner and would have not been the pharmacist on the job when the decedent’s prescription was filled.

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Posted In: Medical Malpractice , Trials , Wrongful Death

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The wonderful thing about settling a case is that you have control over what happens instead of leaving it up to the jury. One way of settling cases that are in trial (in can happen before but normally happens during trial) is called a "high-low" agreement.

Basically, this means that the parties set an upper limit (the "high") and a lower limit (the "low") and then the jury returns the verdict. If it is higher than the "high", then it is reduced to the high number. If lower than the "low", then it is increased to the low. If it is between the high and low then that number is kept.

Here is an example. We had a case where the high was around 1 million and the low was around $400,000. If the jury verdict was 2 million - the settlement would actually just be the 1 million. If the verdict was a defense verdict, the settlement would still be the $400,000 because that is the lowest possible settlement. If the verdict was $600,000 then that would stand as it is in between the high and low.

Ronald Miller has a good post about some problems that can result from a high-low agreement - namely if all the details are not covered such as pre-judgment interest. Make sure and check out Ronald's blog - good stuff there.

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Posted In: Trials

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Many of our clients who have been the victims of personal injury or who have suffered a catastrophic injury or had a family member suffer one will often ask this question. While each case must be looked at specifically, most personal injury cases in Alabama must be filed within two years. If you have not done so, then the claim is gone forever. It is vitally important that you contact a lawyer much sooner those, as there are different laws for different type cases and your time limit could be less.

However, even if you are reluctant to do anything right away, be aware that the insurance companies are. After a car wreck or catastrophic injury, they will be hiring an investigator to begin investigating the claim right away. This will include gathering evidence from the scene, taking pictures of the scene, tracking down and interviewing witnesses. All of these are vitally important to gather as close to the date of injury as possible.

Witnesses move, memories fade, and evidence goes away over time. To protect yourself, you and your lawyer should begin investigating the scene and gathering evidence as soon as possible, if not the same or next day. Know that the insurance companies will being doing this to assist them in paying the least possible on your claim. If you want to protect yourself and maximize your chances of recovery you cannot wait.

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Posted In: Trials

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We have previously mentioned how much we like the weekly Elliott Wilcox articles about trial strategy and this week is not different. It concerns stating your weakness first in closing and then saying "but" and then flow into your stronger argument. Give it a read, and the comment by Bob Gerchen which has a different take, and decide for yourselves if this is a good strategy to use in Birmingham and other counties around here.

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Posted In: Trials

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The NY Times has a very interesting article about a study that was conducted to find out whether parties to a lawsuit typically make the right or wrong decision about going to trial. This only looks at the money aspect - did the plaintiff get more or less money and did the defendant pay out more or less money. There are, of course, other aspects than just money - for example a party's reputation may be at stake at the trial may be worth the risk. But this is an interesting article to consider for both lawyers and parties.

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Posted In: Trials

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Elliott Wilcox has a short article that really captures the meaning of this somewhat obscure rule of evidence. This is used when your witness at one time knew the answer, and recorded that answer in writing, but now cannot remember it. Even when showed the document there is still no memory. What do you do?

Read this fine article for the answer and sign up to get these trial tips from Elliott delivered to your email every Friday. We look forward to them every week.

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Posted In: Trials

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Elliott Wilcox recently wrote an article entitled "Do you talk too much before trial?" and every lawyer who tries cases should read it and every client who has a case should read it. Both groups should apply it.

The gist of the article is that if we boast about our strengths or our opponent's weaknesses before trial, we may be in for a nasty surprise. The same is true of settlement discussions and all other discussions before we have actually won the case. Clients sometimes talk when they shouldn't and reveal case strategies or weaknesses to others.

Here is the concluding advice we should all heed:

Your opponents probably love to brag about the strengths of their case or the weaknesses in your case. Next time, rather than disagreeing with them, quietly listen to what they’re saying and encourage them to boast. Play “dumb as a post” and see what they say. As the great Yogi Berra said, “You can observe a lot just by watching.” Don’t get drawn into an argument with them trying to justify the strength of your case or dispute the strength of theirs. If they try to pick a fight, just give them noncommittal responses like, “You may be right,” and let them continue boasting.

You’re trained to battle in the courtroom, so it won’t be easy to suppress your natural instinct to respond in kind, but it’s something you’ll have to do. Then, after they’ve finished boasting, find a way to shore up your weaknesses or better prepare for their strengths. If you do that, then you can brag and boast when it really matters… After you’ve won your case!

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Posted In: Trials

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Elliott Wilcox has a great site devoted to trial tips and his latest article is on "re-framing" the story to benefit your client. He uses the story portrayed in the Wizard of Oz and then in the "re-framed" story Wicked (which is coming to Birmingham in April 2009 as my kids remind me).

Read the entire article but here is the final part and Elliott makes a very strong case for this type of strategy in trial:

For example, think about a case involving police brutality. Most of your typical jurors think that the police officers in their community are good, honest people doing a difficult, thankless job. If you try to frame your case as a story of “cops are bad,” then you’re swimming upstream, fighting against the jurors’ instinctual beliefs. However, if you reframe your story as “Cops are good, and the best way that we can continue to protect the good cops is to point our fingers at the bad ones,” you can use their instinctive beliefs and attitudes to your benefit. Same facts, different story.

The next time you go to court, your client will be depending upon you to tell (and to sell) his story to the jury. Don’t merely recite a bland story for them — pick through the facts so that you can tell the most persuasive story possible. Don’t accept the common thinking that your client is “wicked” — spend as much time as necessary thinking about how to reframe your facts, and you’ll be able to tell a story that portrays your client in the most positive (and persuasive) light possible.

Well said.

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Posted In: Trials

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Sometimes our clients ask us why the defendant wants to take their deposition. The short answer is the defendant wants to know what you know and wants to pin you down on your testimony.

The defendant (and her lawyer) are entitled to find out the answers to questions such as:

1. What injuries do you have;
2. What do you remember about the wreck;
3. How has your health or daily activities been affected;
4. What did the defendant say to you at the scene;
5. Etc.

While sometimes it can be annoying (and there are certainly annoying depositions taken!) this is a right the defendant normally has and it should not be upsetting or troubling. If you will listen to the question, understand the question, think of the truthful response, and then only answer the question, the deposition will go very smoothly for you.

Remember that you (your attorney) gets to ask the defendant the same types of questions to find out what the defendant knows and to pin down the defendant on what her testimony will be. Depositions help cases to settle and the ones that don't settle it helps to prepare everyone for trial.

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Posted In: Deposition Tips , Trials

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For most of our clients the lawsuit we represent them in is the only lawsuit they have ever been involved in so it is a little confusing the first time they hear of a "summary judgment" motion. This is a relatively routine filing in most cases (although it is not often filed in car wreck cases).

Basically, the motion for summary judgment asks the court to look at all of the evidence, and give the benefit of the doubt to the non-filing party (normally the plaintiff) but then it asks the court to rule that even with this benefit of the doubt, no reasonable jury could rule with the plaintiff. So, you might think of it this way, if there was a trial the judge would "summarily" enter judgment for the defendant. But instead of taking up the jury's time, the judge will enter summary judgment and the case will (normally) be over.

A simple example - if the plaintiff says he was not involved in the wreck but yet sued the defendant for the wreck, no reasonable jury could ever rule in the plaintiff's favor.

But when the facts are in conflict, the judge cannot make the decision - a jury must. The classic example is a car wreck case involving "who had the green light". The plaintiff says he did. The defendant denies this and says he had the green light. Who is right? The judge normally can't decide - instead a jury will have to decide.

This is why it is important during the case to find the facts that are in conflict so that a jury will have a chance to decide the case rather than the judge.

Sometimes the plaintiff will file a motion for summary judgment (maybe the defendant admitted fault, etc) but normally it is the defendant who files this type of motion.

We hope this very brief overview has been of some value and if we can answer any questions for you please don't hesitate to ask us. Our website related to personal injury claims is still under construction so in the meantime you can contact us through our consumer website contact form.

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Posted In: Rules Of Civil Procedure , Trials

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The trial is now almost over as we have selected a Jury, made opening statements, put witnesses of by direct examination and we have cross-examined the other side’s witnesses, we have made our closing argument, and now it is time for the Judge to instruct the Jury on the law.

Before this happens, we will have had a Jury Instruction Conference with the Judge to give the Judge what we believe the law should be. The defendant will do the same. Sometimes there is a lot of disagreement; at other times there is not much disagreement, but in any event, the Judge will make his or her decision as to what the law is in this case. If there are instructions that we think are wrong that are to be given or that we feel should be given that the Judge refuses to, then we will object to those to preserve that issue for possible appeal.

After we make closing argument the Judge will read the Jury instructions. Some of these are difficult to understand while others (and this is the trend particularly in Jefferson County with the presiding Judge Scott Vowell) will make these instructions in as plain of English as possible. We applaud this trend as we want the Jury to understand what the law is.

After the end of the instructions, we will again object to any instructions which are improper and will object to the refusal to give proper instructions that we have requested.

The Jury will then be sent to the Jury Room to deliberate and this signals the most difficult part of the trial oftentimes for the lawyers and the parties, and that is the waiting part. It could be waiting 2 hours or 2 days for the Jury to make its decision. There is always the thought on both the part of clients and the lawyers about things that could have been done differently or may be that could have been said differently, but ultimately, there has to be a trust that what was done was the best at the time and it is now in the hands of the Jury.

In our next blog post, we will discuss what happens after the Jury has a returned a verdict and what your options are based upon how the verdict came out.

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Posted In: Trials

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This is the third and final time that we have to talk to your jury. The first time was during jury selection. The second time was in the opening statement. This third and final time is appropriately called closing argument and it is when we will gather the facts from the trial and arrange them in such a way as to persuade the jury to reach a full and fair verdict in your favor.

There are a number of different schools of thought as to the best way to make closing arguments. Truthfully, there are so many different ways to do it and it completely depends upon the circumstances of the case and the style of that particular lawyer. How did the case go? How much freedom will this particular judge allow? What has been the attitude of the defendant and the defense counsel? What sense do we have of the jury either being with us or skeptical of us.

Since we bear the burden of proof we make the first closing argument and then the defense makes its closing argument, and then we have the final closing argument to make.

It is always a challenge to know what to say and what to leave out. There is a temptation to throw everything at the jury, but in our experience it is better to carefully select the most important and the most persuasive items and trust that the jury will recall the days or weeks of testimony on all of the other details. We do this so that we do not bore the jury or insult the jury and also, we want to highlight certain items. If you highlighted everything in a book, then nothing would stand out. Highlighting by definition means that there are some items which will not be addressed.

After closing argument, the judge will instruct the jury on the law and then the jury will deliberate and return its verdict.

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Posted In: Trials

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Cross-examination is when we as lawyers get to ask leading questions of the defendant or an otherwise hostile witness. When you get to this point of the trial, you will notice that almost all of the questions (in reality, it should be all of the questions) are closed ended questions and that the only appropriate answer is "yes,” "no," "I don’t remember," or "I don’t know."

You should not see any questions which are open-ended questions such as “Why were you driving at that speed?” or “Why was your truck overloaded?” Instead, the questions will be more along the lines of – “Your truck was overloaded” or “You were going over the speed limit when you crashed your truck into my client’s car”. The defendant truck driver will either have to admit that this is true or deny it.

A question will not be asked in cross-examination unless we have the ability to show that a denial of the question is a false answer.

When you are being cross examined, it is very tempting to want to fight with the lawyer and argue with the lawyer, but this should be avoided. Our series on ways to answer questions and depositions addressed this, particularly the fourth critical aspect of answering questions which discusses that you should only answer the question and nothing more.

Cross-examination is a very important part of the trial as this is where the lawyers are allowed to test the truthfulness of witnesses on the other side.

Our next blog post will address Closing Argument.

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Posted In: Trials

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Direct examination is when we put our own client or own witness on the stand and ask questions. Sometimes this is an overlooked part of the trial on the part of lawyers because cross-examination is typically viewed as more exciting; but this is a critical part of the trial.

Direct examination is distinguished from cross-examination in that there are no leading questions allowed. A leading question is one which suggests the answer to the witness. Direct examination questions typically are who, what, when, why, and how questions. It is important for us as lawyers to not try to become the star of the show but instead to let the jury see and evaluate and experience that our client is testifying to. If our client is talking about the pain that resulted from the truck crashing into their car, then we want the jury to be focused on that and to not pay attention to us. If a client is talking about the difficulties that the injury has left him with, we want the jury putting themselves in the shoes of our client and experiencing that. The best way for this to happen is for the jury to hear it from the client, in her own words, with her own emotions.

There is a great deal of preparation which must be undertaken in order to prepare you for a direct examination certainly expect our clients to give us as much time as we need with them, so that they can testify truthfully as to what happened and not be nervous, unclear or focused on the process of testifying instead of focused on the substance.

We want our witnesses and our clients to focus on the substance of what happened and be able to communicate that clearly to the jury so that the jury can use that in making its decision as to who should win the case and how much in damages should be awarded to our client.

In our next blog post, will look at Cross-Examination.

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Posted In: Trials

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After the jury is selected then the lawyers are allowed to make an opening statement regarding the case.

This is the time to capture the interest of the jury and to lay out the facts that will give the jurors a logical and reasonable basis to come to the right decision on the case.

It is the time to engage that jury on an emotional level so that they can put themselves in the shoes of our client and understand the pain and the loss that our client has suffered due to the negligence of the defendant.

Finally, it is the time to begin convincing the jury that your side is the right side for them to be on.

The plaintiff makes the initial opening statement, and then the defendant has an opportunity to make an opening statement in response. If your only experience in seeing opening statements is on TV, (and this is true for almost all parts of a trial) then the actual opening may be different than what you have expected. Whether the opening is long or short, whether we use power point or very simple visual aids, understand that what we are trying to accomplish is to educate and persuade the Jury to ultimately render a fair verdict in your favor.

Our next topic will be Direct Examination of witnesses.

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Posted In: Trials

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At the beginning of a trial, a group of potential jurors will be brought into the Courtroom and all the lawyers will be allowed to ask various questions to the potential jurors. This is to find out if there is a bias that would cause the Judge to exclude the potential juror, but more importantly it is to find out the attitudes and experiences of the potential jurors.

In this part of the trial, your lawyer will ask questions seeking to understand different attitudes and beliefs and experiences of each particular juror. For example, if the lawsuit involves a semi-truck which ran the plaintiff off the road and paralyzed the plaintiff, then it’s important to understand each potential juror’s experience with driving next to large trucks and also dealing with paralysis. Perhaps one juror has a friend who was paralyzed and he has a certain mindset about that and somebody else has an entirely different mindset. There is no right or wrong answer that a juror can give - what we want is a truthful answer, so that we can seek to understand.

Every person has biases and prejudices. Any one who claims to have no bias and no prejudice is simply not telling the truth or is a truly unique human being. What we try to accomplish in the jury selection process is to understand those biases and understand those prejudices so that we can ask a question that may get the potential juror thinking about their own bias and prejudice so that they can set that aside and truly be fair and render a fair verdict.

This part of the trial is critically important and is the first opportunity we have to directly speak to the jurors, and it is our only opportunity to interact with the jurors.

We will continue this series by going through the various parts of a personal injury trial in Alabama, so as to give you a good overview of what will happen if your case proceeds to trial.

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Posted In: Trials

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Alabama consumers who have been injured in a car wreck or a truck wreck often assume, quite naturally, that the jury will know that the defendant who caused the wreck and caused the injuries has insurance through State Farm, AllState, etc. The jury, after all, knows that the injured victim has health insurance such as Blue Cross but it is quite surprising to find out that the jury can never know that the defendant has insurance.

The reason that is always given for this rule is that a jury might decide against the defendant, not based on the facts but on whether the defendant has insurance, figuring “Well, here she has insurance, so it won’t really hurt them if we give a verdict.” We have never met anybody with this actual mindset as everybody understands if you award money when the plaintiff is not entitled to it, then that can have a bad impact upon the system and insurance rates. But what happens is since the jury does not know about the insurance, they look at somebody and oftentimes they will take the opposite approach of assuming that the person cannot pay and therefore they do not find against the defendant even if the defendant is at fault.

Trial judges do not have any discretion in this matter and until the law is changed, this is the way it will be. If you have been in a automobile accident or in a truck wreck or otherwise suffered a personal injury, particularly if it is due to the negligence of an individual, then you do need to keep this in mind as you are evaluating potential settlement offers.

We will continue to explore various parts of how a trial works in a personal injury case, but this is a question which is raised quite often by clients and jurors after a trial and everybody is surprised that insurance cannot be mentioned. Please feel free to contact us if you have any questions about a car wreck or a truck wreck case, if you are not already represented by a lawyer.

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Posted In: Insurance , Trials

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