Peter DeFilippis

Out in Arizona, Jodi Arias is on trial in a high profile case in which she is charged with the murder of her lover, Travis Alexander, after a day of rough sex. He’d been, according to news accounts, “shot in the head, stabbed and slashed nearly 30 times and had his throat slit.” She claims self-defense.

But what jumped off the page for one of my brethren of the New York bar, Peter DeFilippis, is that jurors were allowed to ask questions. That isn’t something we see too often around these parts.

Without further ado, I turn my blog over to the talented DeFilippis as a guest blogger, who after 24 years of practice, has something to say on the matter….
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The jurors in the highly publicized Jodi Arias case recently submitted to the court over 100 questions for the defendant to answer even after the prosecutor spent days grilling her over every last detail in connection with her self-defense argument. Arizona is one of just three states that allow jurors to pose questions to witnesses after prosecution and defense lawyers have finished their questioning. From the perspective of someone who’s spent some time in the well of the courtroom, I wish New York judges would in the interest of justice, allow jurors to pose additional questions of the witnesses in civil cases even if one side objects to the practice.

A universally frustrating aspect to civil trials is that once jury selection concludes the lawyers can’t communicate with the jurors. Generally speaking, jurors sit quietly during the trial presentation, they are expected not to ask questions, and perceive their role during the trial presentation as receptive rather than actively inquisitorial. If counsel were to so much as say hello to the selected juror in the elevator it may land the lawyer and juror in hot water.

During the trial the silence between the attorneys and jurors can be deafening: jurors yearn to ask the lawyers questions and lawyers would love to know more about what the jurors are thinking about their cases. When we interview jurors after a case has ended they sometimes wonder why we did not ask witnesses certain questions or probe specific areas. They are surprised to learn that we are often prohibited by the rules from discussing or presenting many seemingly relevant facts or issues. For example, we cannot divulge to jurors whether or not a defendant has insurance coverage applicable to the claims of injury. Disclosure of this to the jury may potentially result in an instant mistrial.

One way to alleviate this tension is to allow jurors to pose and submit their own written questions to the judge after the attorneys have finished their direct and cross-examination questioning of a witness.  This would allow attorneys to clear up any issues, misconceptions or concerns BEFORE jury deliberations begin.

There is no New York rule prohibiting this practice. Rather, the case law says it is a matter left to the discretion of the trial court. Some judges will advise at the outset if they permit jurors to take notes and/or ask questions. In my trial experience, note taking is fairly frequently allowed, however juror questions of witnesses are rarely sanctioned unless all sides consent. I have made the request on several occasions, but when defense counsel balks, judges will usually not initiate the process though they may properly do so.

If allowed at trial, essential to the process is for the judge to ask jurors if there are any questions and explain the mechanism whereby they could ask questions, i.e., whether it be during direct or cross examination or when the witness is about to leave the stand or at some other time. I think informally allowing jurors to raise their hands and orally ask questions, without judicial screening or consultation with counsels, could be highly problematic. Our high courts have held this is not the best practice. Conversely, utilizing written questions lends itself to an orderly function as opposed to a hand rising session which might invite a cacophony, confusion or other courtroom chaos.  Also, forcing one side or the other to publicly object to a juror’s question would strike me as highly prejudicial.

Well thought out and manageable procedures exist and are codified in other jurisdictions, such as New Jersey, where juror questions are allowed (See, NJ R GEN APPLICATION R. 1:8-8) even if all sides do not consent. The court makes its determination after all parties have been given an opportunity to address the issue, but they need not fully consent for juror questions to be implemented. The questions are first written down by the jurors and then presented to the judge.

The judge then takes the attorneys into chambers for a conference about those questions. Argument and clarification are held beforehand between the court and attorneys outside the presence of the jurors.  The judge tries to work out an agreement by the attorneys as to which questions should be asked, and whether the form of the question proposed by the jury should be altered or modified at all. If there is not agreement, the court decides the issue on its own. If allowed, the judge reads the question, in original form or as modified, to the witness. Since the judge is screening the questions, clearly improper ones are not asked. Attorneys shall then, if desired, be permitted to reopen direct and cross-examination to respond to the jurors’ questions and the witness’s answers.

I think this process insures that the jury is better informed and makes its decisions based more likely on facts gleaned from testimony under an oath than on conjecture. The individual juror is presumably happier and more satisfied if inquiries are answered via live testimony as opposed to not at all or by speculation in the deliberation room (which is frowned upon by the court). Keeping jurors interested and engaged through this active participation in the legal process is of paramount benefit to the litigants and jurists. Perhaps it might increase attentiveness and help to mitigate the tedium and boredom often complained of in connection with serving as a juror on a trial (especially a lengthy one).

Hearing from the jurors in this manner also helps the attorneys to gain some insight into the jurors’ thoughts and hints of major concerns with the case. Savvy lawyers may alter the presentation of their side based on the questions they are receiving and cover missing areas. This may also head off jury confusion which often leads to unnecessarily lengthy deliberations or inconsistent verdicts.   A definite plus is the insight gained by everyone involved from learning some of what is in the jurors’ minds before they make their ultimate decision.

Based on the above points, I would urge New York State judges to consider allowing our jurors to pen and submit written questions of witnesses during civil trials, as codified in other neighboring jurisdictions. Further, they should promote this open, interesting and interactive procedure during their trials even without the consent of all sides, as defense counsel may oppose juror questions strictly as a display of caution or matter of custom. I feel increased juror participation will aid our judicial system in achieving its stated, well known, goal which is to seek to provide justice for all.

There is one thing every trial lawyer can agree on: Scheduling physician experts for trial is a bitch. It is, without question, the most difficult and stressful of trial practices. Doctors, unless they are retired, need a lot of advance notice so that patients and surgeries can be rescheduled.

Both the looming of Hurricane Sandy, and a decision from the Appellate Division (Second Department) three days ago come together to highlight the issue.

First, civil practice as it exists in New York, to set the framework: Cases in New York City, when they are ready for trial, get sent to a trial scheduling part, where you sit with a jillion other lawyers with cases that are trial ready. But your case may get adjourned, even when marked “Final” for a multitude of reasons. There are older cases on the calendar ahead of you. A witness is on vacation. One of the lawyers is actually engaged in trial elsewhere. One of the lawyers begs for more time because the dog ate his cross-exam outline.

Some judges easily (or begrudgingly, depending on how old the case is) grant the application; others scream (or laugh) at you and say Dismissed! Or if the doctor isn’t available, “Subpoena him and we’ll bring him here in chains.” And these judges have broad discretion on how to organize and maintain those trial calendars.

Then the judge that schedules the trial — again, not the judge that will actually try the case — finally sends you to the jury clerk. And you may be told to come back another day because there are no jurors. You may pick a jury, and then be told there are no judges available. Or, you can be assigned to a judge and told to start right away.

You simply cannot control the situation, and the old metaphor of herding cats springs easily to mind. Trying a case is like that.

All the while the lawyers are busy giving updates to clients and witnesses, popping antacids, trying mightily to keep everyone in the loop and praying they can all make it to the courthouse.

Now toss in the concept of a hurricane and the possibility of the courts closing and all (tentative) schedules go kablooie. The Yiddish expression “Oy vey!” will likely now spring to mind.

Enter, stage right, the Appellate Division, in Vera v. Soohoo.  On the day the trial was scheduled, the plaintiff’s lawyer informed the court that the indispensable expert was out of town. He had conferred with his adversary, and they agreed to a trial date one month later if the court would agree. But the court would not agree.

The court insisted on a new date, 10 days later, and one day after the expert returned. But the lawyer had another (older) case that was ready to go just a few days later. Too bad, said the court, and the action was dismissed.

Such are the uncertainties of the court system that keep trial lawyers up and night.  It is one thing to try a case, but a whole different thing to actually line all the ducks up in a row to get there.

Was this dismissal unfair to the injured plaintiff? You bet it was, said the appellate court, and reinstated the action. While it is true that “a court may dismiss an action when a plaintiff is unprepared to proceed to trial at the call of the calendar,” it was a perfectly reasonable excuse that the plaintiff’s attorney was simply trying to avoid the “overbooking of cases.”

Given that the defendants would not be prejudiced by the short adjournment — they had agreed to a new date the following month —  the appellate court said that “The plaintiff should not be deprived of her day in court because of some difficulty in rescheduling a trial date that was convenient for all the parties. We recognize that the Supreme Court has broad discretion in controlling its trial calendar, but that discretion must be exercised in a judicious manner, particularly when an improvident exercise of that discretion will result in the dismissal of a potentially meritorious cause of action.”

Vera v. Soohoo is a pretty good case to keep in your trial bag for when the unexpected pops up and messes with your schedule and you have an unsympathetic judge.

And if you know people who say they never want to try another case, you will understand why.

I’m sitting here watching Pres. Bill Clinton speak at the Democratic Convention and one thing leaps out at me: he would be a masterful trial lawyer.

Why? Because he doesn’t just stand there and make assertions. Rather, he makes his assertions and then backs them up with facts. If you have the burden of proof, that is what you must do. I saw him speak once five years ago, and it was just the same. Everything backed by facts.

Most politicians, of course, don’t have that kind of mastery of facts. Or lack the confidence to use them. Or don’t trust the intelligence of their audience.

But Clinton does. Time and again returning to the theme of ‘Don’t take my word for it, this is what the actual facts are.’

If you want to convince people of something, you have to be prepared with your material and lay bare the facts, pure and simple. And no one does it better than Clinton.

Update: I’m obviously not the only one to come to this conclusion. Fox analyst Brit Hume said after the speech:

“I’ve always said if I were ever in trouble and if I were guilty, especially if I were guilty, I would want Bill Clinton there to defend me. Nobody does it better.”

Hat tip on the back-handed compliment from Hume to Kashmir Hill.

The jury came back quickly. And that is usually bad news for the plaintiff. Fast verdicts usually mean the plaintiff lost on liability, so there was no need to discuss damages. That is what most people, who have stood in the well of the courtroom, would conclude.

But this week in the Bronx it was wrong. When the jury sent back the note that they had reached a verdict, the defendant revealed it was pulling a $750,000 offer off the table. And the verdict was $3,500,000.

After hearing the story through the grapevine, I contacted plaintiff’s counsel Peter DeFilippis. And he gave me the inside story of this case that had appeared as the lede in an article in the New York Post in 2004, regarding patients being hurt by hospitals understaffing nurses:  Plaintiff Loric Stothart nearly lost his left foot after it was burned in the hospital by a post surgical compression/heating boot. He pressed the help button for nearly 20 minutes before a nurse arrived and the device was finally cut-off of him. After several skin grafts and a vein transplant he now walks with a cane.  His expert testified that the use of this device was contraindicated for this patient in the first place.

According to DeFilippis, his trial man on the scene, Conrad Jordan, relayed that the note came back from the jury. Jordan wanted to make sure he knew exactly what was, or was not, on the table, and asked for the note to be held while this was firmed up and a final decision could be made. It was at that point, with a note in the hands of the court saying a verdict had been reached, that the defendant announced the offer was being pulled.

There are some who think that trial lawyers, for the most part, file suits and get paid quickly, doing little work. It’s an “easy money” theme that runs through some members of the press and commentariat.

But that isn’t how life or the law works. I’ve yet to meet a defense lawyer or insurance adjuster who believed that they were potted plants that were supposed to sit still while a plaintiff makes claims. They fight, fight hard, and have the enormous financial backing of multi-billion dollar insurance companies to make big bets (like pulling offers when the jury is coming back) and take risks that mere mortals are unable to handle. Plaintiffs’s attorneys, by contrast, foot the bill for often tens of thousands of dollars out of their own pockets based on the belief that a rational jury will act rationally and compensate the injured, and that they will get paid back and earn a fee.

I have to imagine that, when the 750K offer was pulled in this case, that the plaintiff’s heart sunk to the floor. Unless the plaintiff was independently wealthy, this was likely a financial gamble unlike any he had seen in his life.

I’ve settled several cases while the jury was out. It’s a tough spot to be for individuals as they are asked to make what might be life-altering decisions right there on the spot. And they must do so through the prism of injury and heartbreak that brought them to that point.

Want to know half the game of being a trial lawyer? Stress. With the pad by the bedside at night, we lay awake thinking of the questions we should ask, or failed to ask. Not because we want to lay awake thinking about it, but because the brain won’t shut itself down. And we hope in the end we’ve made the right judgments so that our clients can have some degree of piece of mind. And we go through the trial, and sometimes the settlement negotiations, walking a high wire without a net to catch us if we’re wrong.

And when all is said and done, someone with no knowledge of how the law works will trash talk the lawyers, fantasizing that it’s some easy little game where insurance companies just throw money at you.

There is no way to get around it: If you try cases for a living you will lose some. That’s just the way it is. But it’s not exactly the stuff you would read on someone’s website or firm brochure. Writing about your losses is the biggest taboo there is.

So I guess that’s what blogs are for. While someone at some point must have written on what it is like to lose a trial, I surely can’t find it. So, taboos be damned, here goes.

First off, there are different ways to lose a case. It could be the failure to present a bit of evidence. It could be a judge looking to torpedo your case or an unethical opponent. A pure question of fact (who had the green light?) could do it. Or just a case improvidently brought.

But there are times when, even after losing, you look back and say you would take the same case again. Because you still believe in it. Those are the gut-wrenching ones. The clients you felt for. The righteous battles. The ones that left you up every night with a pad and pen by the bedside and your heart ultimately on the courtroom floor when the jury came back.

One such trial still haunts me, a breast cancer case from 17 years ago that I was asked to try for another firm. The facts were simple: A woman in her late 20s felt a lump and her doc said not to worry about it. A year later it was still there, and by then it was too late. She had a mastectomy a month before she was married. She was young and vivacious and the picture of the girl next door. Except that she was dying. The cancer had spread and we all knew she would be dead within a year of the trial. And she was.

There was no problem with the evidence. No problem with the experts. A cross-exam of the defendant that, if I were doing it again, I wouldn’t change at all. And if I wanted to somehow stop my voice from catching and cracking during summation, I wouldn’t be able to if I tried. It was that kind of trial. It was, when all was said and done, a pure issue of fact as to what happened in a doctor’s office on a particular day.

I wanted to ask the jury what piece of evidence had influenced them. I wanted to learn for the next time so I would not leave another client heartbroken. But after several anxiety-filled days of deliberations, and a jury forewoman in tears when the verdict came back at the end of a long day of waiting, it was not to be. They refused to talk to us. In fact, they sent word through the court officer that they wouldn’t even come out of the jury room that they had returned to until everyone involved had left the courthouse.

If I had the choice of trying any case again, it would be that one. It’s the one I want back more than any other, and it has nothing to do with the time and money that went into it. Even 17 years later I can still feel that loss.

And no, you won’t find it on my website. Over there you will find the good stuff, and the legalese required by New York ethics rules that past results don’t guarantee success for future cases. Nobody puts a loss on their website. Nobody jokes about “coming in second.”

The only way to avoid losses, of course, is not to try cases. And such a “trial lawyer” would then join the ranks of those known to be afraid of the courtroom, and thus, people who will settle cheap. Alternatively, one can also have such a high volume of business, or be so unable to handle the stress, that clients no longer exist. One old-timer I know said he had no clients, only files.

Criminal defense lawyers, I imagine, face some similar issues. Unlike the personal injury lawyer, though, the criminal defense lawyer will (usually) get paid, and hopefully not with chickens or other barter. Their clients naturally face substantially different risks of losing. Some of them deserve it, and the lawyers know it. Others may have been over-charged by prosecutors, or had rights violated, or have desperate families at home, any one of which may provide that emotional motivation needed to push counsel forward even harder than they otherwise might, and which can also crush you in the end.

If a criminal defense lawyer has all of his clients plea out, then, like their counterparts in the civil world who would rather settle for 40 cents on the dollar than try a case, they will sleep at night and not have to worry about ever losing. Some lawyers, it seems, simply do not care enough about the human that is their client, and therefore may not try as hard as they should.

And then there are the heroes of the legal world: The defenders in death penalty cases where there is no doubt about the guilt of the accused. And the defense lawyer accepts the scorn and contempt of the community for defending a monster in exchange for the honor of standing up for an abstract principle about whether governments should mete out death. Losing has an altogether different meaning in that context.

I’d like to think there is some moral or happy end to this post, but I can’t find it. A gut-wrenching loss — where you were unable to help your client despite all of your best efforts — comes with the territory when you step into the well of the courtroom. And it hurts like hell, sometimes for years. Such is the nature of law practice for anyone that cares about the client. Walking the high wire without a net, and that is often what trying a case is, is an environment that isn’t for everyone, and the level of burnout (and, perhaps, alcohol consumption) is high.

Of course, having such experiences would be a good thing to see in a potential judge, as I discussed in the The SCOTUS Nominee and The Tissue Box Test. It would bring a depth of diversity and understanding that those who made it to the bench straight from the ivory tower don’t generally have. So in the judicial sense, at least there would be lessons of some type that might be applied elsewhere. But that is just philosophy. It doesn’t help me in the trenches.

I don’t know where these ruminations will lead, if anywhere. But I’ve spent a bit of time looking at other web sites as I wrestled with my unhappiness over my own, and I know that losing is the great elephant in the room when it comes to legal marketing. For every one of those victories that lawyers talk about, someone else went down to defeat. Of course, it’s never discussed, and understandably so.

I will leave it to others — if they care to write about a loss, and I don’t blame anyone for staying silent on it — to follow-on with this thread if they so choose.
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Updated:

• Ron Miller posted on what it’s like to lose back on July 13, 2007.
• Mark Bennett posted Losing Sucks on 1/21/2010
• Norm Pattis posted Baseball, Mountaineering and Trial on June 4, 2010, including this:

It has not been a good year for me. I had a run of guilty verdicts unlike any I have ever had before. I lay in bed at night wondering whether I’m washed up, or whether I’ve become too arrogant to be trusted by jurors. In each case I tried this past year, I was able to accomplish what I wanted to do with the evidence. But the evidence, well, it kept on coming against client after client, a tsunami of grief that buried my clients and my ego.

Links to this post:

POSTS WILL RESUME SHORTLY
It seems like I’ve been saying that alot. I’ve been busy. For some reason these past few months have been full of assignments, projects, and two line emails that require two hours of work. Court has been especially busy as well. …

posted by . @ June 13, 2009 5:01 PM

The news came out from the Sen. Ted Stevens corruption trial: A lawyer was sending signals to the witness on the stand. Oy. According to this AP report:

The federal judge overseeing the case accused the lawyer for the government’s star witness of making secret signals to his client during a crucial cross-examination.

Those of us who stand in the well of the courtroom for a living will see, or sense, this from time to time. It comes generally in three distinct forms, and I suggest here ways to handle that problem:

1. The speaking objection. Opposing counsel doesn’t like the question and thinks the witness needs a little help. Thus comes the “speaking objection” in which the lawyer blurts out, in the guise of an objection, that the witness already said xyz on the subject, or in some other way hints the witness how to answer. Some judges already have sharp rules in place for this, but others don’t.

Solution: If it is obvious, and the judge hasn’t jumped in, you audibly object to the lawyer coaching the witness with a speaking objection. Of course, you may incur the wrath of the judge with this, so tread carefully. Sidebar conferences may be called for. And, of course, at the earliest opportunity when the jury is out of the room a record should be made. It is one way to stop it from recurring, even if the damage may already be done.

2. The head shake. The attorney makes a face or shakes his/her head. This can be a subconscious thing. The problem is that it may not be seen by you if you are in the middle of a cross exam and, let’s put this mildly, have a brain preoccupied with getting that task done. One big clue to help you out? Watch the eyes of the witness. If you know your case and the cross-exam to be done, you won’t have your head buried in your notes and will see the eyes of the witness swivel as s/h seeks help.

Solution: When you see the witness look at opposing counsel, that is the time to say “Your lawyer can’t help you with that,” or “the jury is over here,” or a similar comment/question as the situation warrants.

3. Deliberate signals. In the Stevens case at the links above we have, according to the judge, deliberate signals being given. The solution though is the same as the head shake: Watch the eyes and pull the witness back to the testimony.

The only thing you can’t do is stay quiet (unless the judge has already acted, in which case silence is the order of the day unless you are asking for a curative instruction of some kind). So long as the issue is raised by either you or the judge, you can bet your last dollar that everyone in the courtroom will now be attuned to it if it happens in the future.

See also:

• Gestures from the Gallery? Another Bizarre Twist in the Ted Stevens Trial (WSJ Law Blog)

This is a lesson on how to fool a jury. And how to get caught. It’s about doctors and lawyers and ethics that belong in the sewer. It’s about potential insurance fraud. And it is an exposé of a very seamy side of personal injury trial practice. And I will name names. It might be the most important post I’ve made since I started blogging, and it comes out of a Manhattan trial that just concluded.

The story emerges because doctors who performed “independent” medical exams in a personal injury case were told, in writing, to game the system. A document was discovered in the file of a neurosurgeon that included this: If prognosis appears good, then state that – otherwise be silent.

We start with a basic aspect of personal injury practice: When you claim injuries to your body in a lawsuit the other side is entitled to have a doctor (or two) examine you to see if your claimed injuries are legitimate. Courts and defense lawyers like to call these “independent” exams. But are they?

The scene is Supreme Court in Manhattan (this is the main trial court, not the top appellate court). And on the stand is Harvey Goldberg, a physiatrist that was hired by the defendants to examine the plaintiff, Gerard Malloy. Malloy had suffered a terrible back injury when he tripped over an exhaust fan that had been left in a darkened hallway in a building. In the well of the courtroom stands David Golomb, one of the city’s top trial lawyers, cross-examining Goldberg.

But all is not right with the report from the exam that Goldberg holds in his hands, because something seems to be missing. Like his opinions. So Golomb asks him, on a hunch, if there was another version of the report that did contain his opinions. Ummmm, well, now that you mention it, there had been another version comes the reply. Golomb presses on and discovers that Goldberg had not only been asked to edit his original report, but complied. He apparently took his opinion on the cause of Malloy’s injuries out of the original report. The testimony looked like this from a transcript provided to me:

Q: So why is the report dated more than [one month after the exam], December 12 of 2006? Why? If you don’t know, you can say that too, Doctor.
A: I don’t know.
Q: Was there a prior version of this report? Was it sent to anybody to look over or edit?
A: There may have been a prior draft that was corrected.
Q: Changed? We don’t know, do we?
A: There was an instance of the causality originally being requested, and then I was told that the causality was not requested.
Q: So if I understand you, you were told by the people asking you to prepare this report not to offer any opinion on what the cause of Mr. Malloy’s injuries, if any, or problems, if any, were? Did I just understand that answer correctly?
A: Yes.

Why was removing causation so important? Because plaintiff Malloy had been in a car accident five years earlier, and the issue of whether it was the car accident or the trip that caused the back injury was pretty darn important. And Goldberg was asked to take his opinion out. And he complied, thereby creating a new report that he knew was incomplete.

Remarkable? Keep reading because it gets worse. The next day neurosurgeon Douglas Cohen prepares to take the stand, as he had also examined Malloy for the litigation. But before Cohen takes the stand, Golomb sees the doctor talking with the defense lawyer in the hall. And the defense lawyer is holding a paper in his hand that came from the doctor’s file. And the lawyer is looking surprised, and very unhappy. And he knows that Golomb is watching the interaction.

With Cohen on the stand, Golomb discovers what that paper is. It is the instruction sheet for the doctor directing him to omit opinions from the “independent” report that are favorable to the plaintiff. Those marching orders, published here for the first time, included (IntegratedInstructions.TIF, another version of the file IntegratedRisk-Instructions.jpg):

• Point out whatever findings or claims are not related [to the lawsuit]. Otherwise be silent on causal relationship.
• If prognosis appears good, then state that – otherwise be silent
• If you can state that plaintiff can participate in all normal activities, do so. If not, be silent

This instruction sheet form from the folks that hired him came from a company called Integrated Risk Services Inc., whose job it was to set up these “independent” medical exams. The instructions appear clear that this was not to actually be an independent report, but in fact, was designed to be a deliberately incomplete and therefore deceptive report. And Cohen had errantly brought it with him to court. That form instruction sheet, by urging deliberate omissions, essentially asked the doctors to falsely claim their exams and reports where “independent.”

So who runs this company and asks these doctors to do this?

A review of the website for Integrated Risk Services, Inc. reveals that this is “ATTORNEY MANAGED INDEPENDENT MEDICAL CONSULTATION SERVICES.” Attorney managed, eh? I wonder which attorney is urging deceit for “independent” exams? A corporate search through the New York Department of State web site reveals the company registered without a name in a post office box in Great Neck, New York, while the web site for the company gives a different PO box in Syosset, New York, also without any names. Nice.

Edit: On 3/25/08 Steven Fruchtman, an attorney out on Long Island, called to say that the company was his. My prior investigation, which tracked the company down through a residential address of his father, has now been rendered moot and been removed. Steven Fruchtman informs me that his father has nothing to do with his business.

Is it called lying when you deliberately omit pertinent opinions in an exam you are claiming is “independent?” Is it suborning perjury by asking someone else to do that on the witness stand? Is it insurance fraud to be so deceptive if the objective is to deprive an individual of insurance funds to which they may entitled? If a plaintiff was deceptive, would the insurance industry and big business scream fraud and go running to the American Tort Reform Association? Is there one standard or two?

I leave it to you, dear reader, to ponder whether ethical violations have occurred for doctors and attorneys involved. And this is not just left to the reader, but to the NYS Department of Health. And to the attorney ethics committees of the state if, in fact, this was an attorney managed company and perhaps, to the NYS Attorney General should any of them stumble upon this little exposé.

Update, 3/25/08: After Steven Fruchtman called today, I made edits to this post as a courtesy to him, including the removal of information regarding his father. He has been invited to comment here if he sees errors.
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Full Disclosure: I know David Golomb for over 25 years and he trained under my father when he was a newly minted attorney.

Some folks think that if they can practice law in one area it will easily translate to another. Don’t count on it.

Over at Simple Justice, Scott Greenfield discusses the bone-headed attempt of a Las Vegas personal injury attorney trying to represent a defendant in a murder trial. The problem? This guy apparently likes to brag about how he settles cases (a bad move in itself for what it telegraphs to the insurance company) and figured he could just do the same with his criminal defendant. Scott gives you the dirt on the screw-up, and I’ll now do the reverse for a criminal defense lawyer trying to handle a huge medical malpractice case from personal experience.

I got the call on this case about a month or two before trial, which is to say, the case had been ongoing for several years. The basics were this: A woman suffered a ruptured aneurysm in the brain, and while being prepared for an angiogram, flopped off the table on to her head. She had swelling in the brain and needed two surgeries to remove parts of the brain and lower the pressure. She was the functional equivalent of a 5-7 year old and bed-bound with spastic quadriparesis. Her life was, in a word, awful. And so was her attorney.

The family’s attorney, a very high profile criminal defense guy here in New York (now deceased), had sued the wrong doctors, failed to take the proper depositions, failed to get experts, failed to videotape the woman so the jury could see her, and was otherwise grossly incompetent.

Thankfully, many of the screw-ups were salvageable, as is often the case when the statute of limitations hasn’t been blown. Since the hospital had been sued, and the people involved were all employees, we could go forward, albeit half-blind.

I immediately told him, after getting a 60 second description of the case, that when all was said and done the only difficult issue was proximate cause: Was the fall a substantial cause of any of her brain damage? She did, after all, have a ruptured aneurysm in the brain before the fall.

I agreed to try the case with him, the only time in my life I’ve ever shared my space inside the courtroom well. The idea was that he would do the opening and non-medical witnesses, and I would handle the neurologists, neurosurgeons, neuroradiologists and other medical witnesses, and do the summation.

I still remember the day I walked into court to cross the first doctor, a neuroradiologist, with two groaning litigation bags hanging from my ever-lengthening arms because the little handcart I had was busted. Transcripts and medical records were fully indexed and I had an outline committed not just to paper but to my brain so that I could question without reference to any paper. My teammate walked in without a brief case or even a pad of paper, looked at me and casually asked, “You want me to do this witness?”

Now here is why it’s a mistake for a criminal defense lawyer to jump into a big time medical malpractice case. The orientation of the defense lawyer is that if they can create reasonable doubt with just one juror, their client will persevere. With no burden of proof, a little schtick here and there might well connect with someone. When you have the burden of proof, on the other hand, the opposite is true. You can’t afford anything that even looks like schtick.

And therein lies the problem: The defense lawyer might succeed if s/he throws everything against the wall, knowing that if just one thing sticks it may lead to victory. Now I’m not saying that is the right way to try any criminal defense, because that can backfire big time as Scott points out in the Coffee Mug Defense.

But a word to the wise for those that venture outside their comfort zone. Get help from someone who knows. Ask lots of questions. Start small. Don’t be afraid to say that you are outside your comfort zone, either to the client or the judge. They will understand, so long as you don’t wait on the issue until trial. Because if you wait for trial, there is a good chance your client will get screwed.

A final thought: It is not just the client that gets screwed. If the blown case gets picked up by the press/bloggers, as has been done in the Vegas case Scott wrote about, then one’s own reputation on the Internet may be shot for many years to come, an issue discussed in Dan Solove‘s book on the Future of Reputation on the Internet.

A story making the rounds the last few days involves a judge that delayed a sentencing for hours because a prosecutor was wearing an ascot instead of a tie. You can find various opinions on the subject at the WSJ Blog and Above the Law along with a host of others. But it was Anne Reed who posted on “What Not to Wear” that caught my attention.

Because the issue of what not to wear to court begs the question of what a lawyer should wear. I’ve seen everything from schlumpy sport coats to silk pocket hankies with folks dressed to the nines.

So if you are appearing in the well of the courtroom, do you dress down with modest clothes or up with your best? I once tried a case in the Bronx with a guy whose collars were always bent out of shape because there were no collar stays. I mentioned it to him in passing and he told me, “I do it on purpose.”

So here’s my take: I dress boring. Neat and clean blue and gray suits. Modest ties. No French cuffs, pocket squares or spit-shined shoes. My goal is simple: I don’t want the jury to even notice what I’m wearing. I don’t want them distracted from the story that I think needs telling, or the cross-exam I’m undertaking.

I’m in the courthouse to do a job, and that is to effectively communicate the case. And dressing either up or down will make me stand out in some fashion and that is a distraction that takes away from the case. Of course, since I’m representing the plaintiff, I can’t afford to have any juror take offense or be distracted. Defense lawyers, especially criminal defense, may feel like they can get more yardage out of a little schtick. They only have to convince one person, after all.

Your mileage may vary.

Every personal injury victim that has a case worth taking should have a story worth telling. And there are a million ways to tell it at trial.

The ability to tell that story — in an engaging manner that keeps the jury interested while you dot the “I”s and cross the “T”s of evidence — goes to the heart and soul of standing in the well of the courtroom. Those that mechanically travel the linear path from start to end are likely to lose the interest of the jury, and if their interest is lost, so too are your arguments.

When I open, I like to start the story in the middle. It is that particular moment in time, perhaps, when a patient walks into a doctor’s office, or a car crosses the double yellow line to the wrong side of the road. It goes to the essence of why you have risen from your chair to address the jury.

And when I say I like to start in the middle of a story, I’m not kidding. I don’t waste time thanking the judge, or the jurors for their presence in the courtroom. I don’t introduce myself or my client. Chances are, much of that has already been done anyway, but if not, I can get to it later. I need to tell them why they are here. Because they want to know.

You’ll never have greater command of the jury’s attention than that first 60 seconds of a trial. You can waste it with platitudes the jury doesn’t care about, or you can use the time wisely. And so I begin,

“Today we turn the clock back to January 5, 2004. Jane Patient is showing a hard lump in her breast to Dr. Gyno, explaining how she found it while washing herself in the shower, and of her intense anxiety over its appearance. Dr. Gyno, who Jane has trusted for years, examines the lump for a few seconds, and tells Jane not to worry about it.” 

The jury now knows why they were dragged from their homes or jobs to sit in this courtroom. They know, perhaps intuitively, that Dr. Gyno likely has a different version of events, but that this is the sharp issue of fact that will define the trial. They have also been presented with a moment of anxiety and stress by your client that may be the essence of one of your themes — betrayal of trust. Most importantly, they want to know the details.

From there one can fill in the before and the after, introduce people in the courtroom, witnesses that may appear, and slowly work into the story the various elements. But it is a story you are telling in the trial — often an emotional, gut-wrenching story that brings the concepts of life and death into sharp focus. This cannot be told in a rote beginning-to-end manner.

Sometimes finding the middle doesn’t seem easy. If you were telling your friend about running the NYC Marathon, would you start with your decision to run or the months of training that went into it? Doubtful. The “middle” of such a story may be the moment of greatest anxiety and anticipation: The starting line as you wait for the deep thump of the cannon while looking out across the Verrazano Narrows Bridge, where the great footrace starts.

Telling the narrative can take you into a thousand different directions. There is really no “right” way to do it, other than to stop orating like a lawyer and start talking like a storyteller.

Mark Twain, not a keen fan of attorneys, was a master. On this subject he wrote:

“Narrative is a difficult art; narrative should flow as flows the brook down through the hills and the leafy woodlands, its course changed by every bowlder it comes across and by every grass-clad gravelly spur that projects into its path; its surface broken, but its course not stayed by rocks and gravel on the bottom in the shoal places; a brook that never goes straight for a minute, but goes, and goes briskly, sometimes ungrammatically, and sometimes fetching a horseshoe three-quarters of a mile around, and at the end of the circuit flowing within a yard of the path it traversed an hour before; but always going, and always following at least one law, always loyal to that law, the law of narrative, which has no law. Nothing to do but make the trip; the how of it is not important, so that the trip is made.” 

(Hat tip to Bryan Garner, Quote of the Day, 4/11/07)

(Eric Turkewitz is a personal injury attorney in New York.)