If you haven't heard of unemployed, 47-year old Susan Boyle taking the stage in a British talent shows and blowing the doors off the joint by now, you've probably been living under a rock. The expectations were as low as can be for the rather plain (some say homely) looking woman who, it turns out, had the voice of an angel. (Video here)

And there is the lesson for trial lawyers. One considerable reason for her stunning story was that the expectations were set so low. If she had been a pretty blond taking the stage, it would not have been the same. She would still have a nice voice, but would she have become an international human interest story? Of course not.

And of course that isn't fair. But people judge others on appearances all the time, and that doesn't change when we become jurors.

How does a trial lawyer use that bit of knowledge? By raising the expectations for the other side's witnesses and lowering them for your own. Let the jury be surprised and their expectations exceeded for your own. Let them be disappointed by the adversary.

Two years ago I wrote about the problems of well-educated, attractive adversaries in One Way to Cross-Examine The Attractive Doctor, and discussed how to approach the issue before that witness takes the stand in the medical malpractice setting:

The answer is not to knock them down, but to build them up in opening statements and jury selection (if your jurisdiction allows).

Tell the jury they will like the defendant. After all, your client chose this doctor for surgery, right? Trusted him/her. Kinda like Marcus Welby. Therefore, it stands to reason, the jury will too.

This does a few things: First, you have been dead honest. It is unlikely the jury expected you to "confess" this thing, but frankly, they will likely see it anyway if defense counsel is even mildly competent. Trying to tar a physician at the outset that your client previously trusted has enormous potential to backfire.

The jury also now has very high expectations for the doctor. With the bar set so high, any slip-up or contradictory testimony is likely to be viewed in a harsher light. Assuming you have a solid case to take to trial, this doctor-defendant will also lay out the standards of care (while they still trust him/her) before being confronted with the deviations from care, the sloppy notes, the rushed surgery, failure to read the x-ray, or contradictions from deposition testimony.

And the reverse may also be true, as Ms. Boyle demonstrates. Instead of building your own clients up, you can compare them to their adversaries, and warn the jury that the nice doctor on the other side, for instance, might have much higher education and more practice speaking in front of others, and caution jurors not to judge your client on looks or awkwardness. This gently lowers the bar without hurting your clients or unfairly disparaging the other side and, like Ms. Boyle, makes it easier for them to be liked by the jury. (Assuming this scenario is appropriate for the case, of course.)

I'd love to say that trying a case is all about the facts and only the facts. But appearances sadly mar the way for many. And this is one way to level that playing field.

Labels: FAQ-Medical Malpractice, FAQ-Personal Injury, Trial Practice

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 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.)

Labels: FAQ-Personal Injury, Inside The Well, Trial Practice

A child suffered serious personal injuries when bitten on the face by a dog, and brought this New York action. But the plaintiff's attempt at summary judgment was rejected. Why?

The old saying in the title comes from the concept of notice. As in, the owner of a dog that bites someone must have notice of a dog's vicious propensities in order to make that bite actionable.

In Earl v. Piowaty decided last week by New York's Appellate Division (3rd Dept.), the court returned to the time-honored principle that "the owner of a domestic animal who either knows or should have known of that animal's vicious propensities will be held liable for the harm the animal causes as a result of those propensities."

But, when the only evidence of a prior "viciousness" was a prior "nip" that the child described as "so minor that it did not break the skin or hurt me," then summary judgment would not be granted. Normal canine behavior does not qualify.

Woof.

Labels: FAQ-Personal Injury, Personal Injury

Trip and fall cases are interesting because of two competing defenses:

1. That the defect was so small as to be "trivial"; and
2. That the defect was so large as to be "open and obvious."

In this case, the defendant prevails on the first of the two defenses:

The plaintiff asserts that there was a height differential of 5/8 of an inch between the two surfaces, and contends that this height differential caused the accident.

"[W]hether a dangerous or defective condition exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury." However, a property owner may not be held liable in damages for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip. In this case, the defendants made a prima facie showing, through the plaintiff's testimony and the photographs identified by her as accurately depicting the condition of the curb cut at the time of the accident, that the alleged defect did not constitute a trap or nuisance and was merely a trivial defect which was not actionable as a matter of law. The evidence which the plaintiffs submitted in opposition to this showing failed to raise a triable issue of fact.

If a defendant does not prevail on one, a claimant should expect the defendant will then pursue the other.

The case is: Joseph v Villages at Huntington Home Owners Assn., Inc.

Labels: FAQ-Personal Injury, Personal Injury, Slip and Fall

A car crosses a double yellow line and causes a collision. As I noted last week, there is a presumption that the driver that crossed the lines is liable.

But here, a driver claims he "blacked out' and that the presumption of liability against him is rebutted. Not so, says New York's Appellate Division, Third Department last week, since the driver must still prove that such event happened:

Initially, we note that unexcused violations of the Vehicle and Traffic Law, such as crossing a double yellow line, constitute negligence per se. However, violations which give rise to negligence per se may be excused if the accident clearly results from an unforeseen and unexpected medical emergency. [Defendant's] self-serving affidavit in which he asserts a belief that he "blacked out,"unsupported by any corroborating medical evidence, is simply insufficient to create any issue of fact regarding an unforeseeable emergency situation.

Once again a party is defeated by a failure to follow a basic principle of law: That in order to defeat a motion for summary judgment, evidence must be put forward admissible form.

Labels: Car Accidents, FAQ-Personal Injury

When cars collide head-on in New York, does at least one of them have to be negligent? A jury said no, and the trial court agreed. The case was brought by an injured passenger in one of the cars.

In a ruling last week, the Appellate Division Second Department reversed with this principle of law:

It has repeatedly been held that a driver who crosses over a double yellow line into opposing traffic, unless justified by an emergency not of the driver's own making, violates the Vehicle and Traffic Law and is guilty of negligence as a matter of law.

Here, the evidence presented at trial demonstrated that the statute was violated by either [car one or car two]. Neither party presented a non-negligent explanation for the accident. Rather, each defendant claimed that although it had been raining and/or sleeting for some time, she did not lose control of her vehicle. In any event, the adverse weather conditions were foreseeable and would not have provided a non-negligent excuse for the collision.

The case was sent back for a new trial. The decision in Sena v Negron is here.

Labels: Car Accidents, FAQ-Personal Injury, Personal Injury

New York personal injury lawsuits have very liberal discovery rules when it comes to furnishing medical records. Almost any medical record, it seems, is fair game under the civil practice rule for discovery of all "material and necessary" documents.

But the First Department of the Appellate Division wrote a few days back that a tougher standard exists for more sensitive medical data, particularly with respect to HIV status and substance abuse materials. Applying the standard of the Health Law or Mental Hygiene Law instead of the Civil Practice Law and Rules, the court noted that a court should grant an order for disclosure of confidential HIV related information upon an application showing a "compelling need" for disclosure of the information for the adjudication of a criminal or civil proceeding.

Since the motion court had made its determination using "material and necessary" standard and not the "compelling need" standard, the lower court decision was reversed and remanded for consideration under the higher standard to see if such records exist and determine their discoverability (if any).

The decision in this malpractice case is here.

Labels: FAQ-Medical Malpractice, FAQ-Personal Injury

A favorite topic of tort "reformers" is to place arbitrary caps on personal injury damage awards for pain and suffering. In doing so, they simply ignore the fact that caps already exist, but without the low ball one-size-fits-all numbers they argue for. In fact, we've been capping damages now in New York for almost 200 years without using an arbitrary number.

Here's how it works: On occasion a jury will give an outrageous number...sometimes way too high, and sometimes way too low. (Newspapers only cover the high ones.) While jury awards are given great deference by the courts, that deference is not absolute, and the judge has the power to modify the award. Not directly, since the court won't simply substitute its own judgment for the jury, but by tossing out the award and ordering a new trial unless the aggrieved party stipulates to the new amount chosen by the court. This happens at both the trial court level and the appellate level.

The earliest opinion I've seen where the court says it will not accept any award from a jury in New York is from 1812:

"It is not enough to say, that in the opinion of the court, the damages are too high and that we would have given much less. It is the judgment of the jury, and not the judgment of the court, which is to assess the damages in actions for personal torts and injuries....The damages, therefore, must be so excessive as to strike mankind, at first blush, as being beyond all measure, unreasonable and outrageous, and such as manifestly show the jury to have been actuated by passion, partiality, prejudice, or corruption. In short, the damages must be flagrantly outrageous and extravagant, or the court cannot undertake to draw the line; for they have no standard by which to ascertain the excess." - Chief Judge James Kent, Coleman v. Southwick, 9 Johns. 45, 1812)

Chief Judge Kent's standard of being "flagrantly outrageous and extravagant" to toss out a civil award is now read in two similar ways: The appellate court language is that the damages "deviate materially from what would be reasonable compensation"; and the trial courts say they will order a new trial when the verdict "shocks the conscience of this court."

This methodology of ordering a new trial if the party did not stipulate to reduced damages came up in a famous 1913 case, involving future Supreme Court Justice Benjamin N. Cardozo and Bat Masterson, a legendary figure of the Old West, when a jury returned a defamation verdict in favor of Masterson for $3,500. The reason? Cardozo's client had said that that Masterson had "made his reputation by shooting drunken Mexicans and Indians in the back." (Hat tip to Randy Barnett at The Volokh Conspiracy.) New York's appellate court tossed the verdict and awarded a new trial unless Masterson stipulated to a reduction of the verdict to $1,000.

And in one of my own trials, I took a $610K verdict in a Brooklyn medical malpractice case resulting from a misplaced injection that injured the sciatic nerve. The court reduced my client to $450K using the same stipulation mechanism. To see how often the New York courts continue to do that, just pop the phrase "deviate materially from what would be reasonable compensation" into the search box at the court's appellate website here.

In other words, to persevere in an action for pain and suffering, one must first win with a jury's review, then have that verdict pass muster before the judge that heard the case, and then have the verdict reviewed a third time in front of an appellate panel.

So why put arbitrary caps in place if common sense ones already exist? Because the movement to do so has nothing to do with finding justice, but rather, is run by big business and its front groups such as the U.S. Chamber of Commerce to give negligent conduct various forms of immunities and protections when folks are injured. The idea is to remove the concept of personal responsibility for one's actions.

The big verdicts make big headlines. The subsequent reductions (or additions when a plaintiff is badly shortchanged) rarely appear. But simply because you don't see it in the papers doesn't mean it doesn't exist.

Addendum, 3/12/07 -- For more on the disparity of coverage between verdicts and subsequent reductions, see Media Bias at TortDeform.

Labels: FAQ-Personal Injury, Personal Injury, tort reform

It's odd to see an appeals court vacate its own decision, without anyone having asked, but that is what happened here. It's all about the power of the government to tax personal injury awards.

Congress has the power to tax income, but not recoveries for personal injury. Its power comes from the Sixteenth Amendment, which gives it the "power to lay and collect taxes on incomes, from whatever source derived..."

Since a personal injury award, either by settlement or verdict/judgment, is compensation for that which was lost, it is not income. The injured person is simply made whole.

But what of psychological injury or loss to reputation? It was just a few days ago I posted on emotional injuries for witnessing the death of a sibling while in the "zone of danger." In Murphy v. IRS, a three judge panel of the U.S. Court of Appeals for the District of Columbia held last year that compensation for emotional injuries was not income, and therefore not taxable. Therefore the provision of the Internal Revenue Code that tried to tax the money was held to be unconstitutional as it contravened the Sixteenth Amendment. Much was written on the subject, which I will not repeat, some of which can be found at this link to the TaxProf Blog.

The news? The Court of Appeals reversed itself a few weeks back by tossing out the decision, and asked for new briefs and oral argument. We can thus expect a new decision where the same three judges reverses their prior holding, or perhaps strengthens that prior opinion with the knowledge that, one way or another, this may well be headed for the U.S. Supreme Court. Interestingly, the court's request for a re-hearing was done on its own motion. The losing side, the government, had not asked for that, but rather, an en banc hearing (with all the judges for the circuit court).

Since almost all personal injury cases have an element of psychological damage (the "suffering" in "pain and suffering"), the outcome is more than a little bit important. Will the court try to distinguish the emotional damage one has with a lost limb from that of the suffering in a non-physical injury defamation case? If a person has any physical injury to go with the emotional damage, does that mean all of the emotional damages are tax exempt? Will juries now be asked to separate out the two components?

The government argument is that all compensation from a personal injury suit may be taxed, notwithstanding the Sixteenth Amendment. This next appellate argument is unlikely to be the last...stay tuned...

And a tip of the hat to John D. Darer at StructuredSettlements4Real, where I caught up with that information.

Labels: FAQ-Personal Injury, Personal Injury

In part one of this FAQ, I discussed 1) the need to find a lawyer in your area, and; 2) concerns one should have if they are solicited by an attorney. Now we turn to legal fees:

3. How much are the legal fees in a negligence case?

Most New York personal injury law firms operate the same way:

First, there is no legal fee for an initial consultation. If the case is taken it is usually done on a contingency basis, which means that the lawyer gets paid only if the client gets paid. This is an incentive for the lawyer to only take good cases with serious injuries, and it relieves a burden from clients who would not otherwise be able to afford a good attorney.

Legal fees are governed by the Judiciary Law, which establishes a limit of 1/3 of any recovery as the fee, with the exception of medical and dental malpractice cases where the fee is lower (see below).

Over the course of the representation, there will be expenses that most attorneys will generally advance on behalf of the client, such as for medical records, experts, stenographers, and certain court filings. There may be exceptions to this, and a good attorney will candidly discuss them with you. (For example, if a settlement offer is made that the attorney recommends accepting, and the client refuses, the client might be asked to front any additional expenses.)

At the time of recovery, the firm will first reimburse themselves for the cash outlay for expenses and then do an apportionment of the remaining recovery. For example, if a case settles for $100 and there was $10 in expenses paid by the attorneys on behalf of the client, then the $10 would be paid back to the attorney and the remaining $90 would be used to determine the legal fee.

4. What are the fees in New York medical malpractice and hospital malpractice cases?

Medical, dental and hospital malpractice cases are also governed by the Judiciary Law, which sets forth a legal fee "sliding scale" structure that looks like this:

30% of the first $250,000 of the sum recovered;
25% of the next $250,000 of the sum recovered;
20% of the next $500,000 of the sum recovered;
15% of the next $250,000 of the sum recovered;
10% of any amount over 1,250,000 of the sum recovered.

Thus, while malpractice cases are significantly more difficult to bring, and cost a great deal more (due to the necessity of hiring additional experts), the fees are lower than in other New York personal injury matters. In fact, they are some of the lowest in the nation. Because of this, many New York firms have a much higher threshold barrier in taking malpractice cases. Essentially, the lower fees, greater expense and significant technical difficulty of bringing such suits has given virtual immunity to the medical profession for smaller claims. Samples of some of the New York medical malpractice cases my firm has handled can be viewed at this link, and they demonstrate the complexity of many matters.

In future FAQs, I hope to cover the need for speed in certain things, the issues around how to "value" a potential case, and other subjects.

Labels: FAQ-Medical Malpractice, FAQ-Personal Injury, Medical Malpractice, Personal Injury

Since many of the same questions recur in personal injury law, it makes sense to write about them. Here then is the first installment of Frequently Asked Questions:

1. There are so many attorneys and legal websites, how do I select a law firm?

• Make sure the firm has a real office in your area. A "national" firm advertising on the Internet may merely be a toll free number from anywhere, without even having an attorney admitted to practice law in New York. Such a firm is likely to sign clients up, and then shop the case around to others in New York in exchange for a legal fee. This lowers the fee to the local attorney (who you have not met) that will do the actual work. Because the "national" firm is taking some of the legal fee, it will also make it less likely to be accepted by high caliber local attorney. The same is true of the dozens of attorney search "services" that are little more than an advertising web site.
  

• Make sure the firm has handled personal injury cases such as yours and has some examples for you to see. Would you want a firm that devotes 95% of their time to matrimonial matters handling a medical malpractice birth injury lawsuit for your child?

• Visit the office and talk to the attorney that will handle your case. If you feel you are being rushed and not given enough time to discuss the matter, hire another firm.

• Will your case get individual attention, or be one of thousands of New York personal injury cases that the firm handles, assembly-line style? Some people like small firms with individual attention, and others like larger firms. It is a matter of personal preference.

• If possible, get a reference from someone you know and trust.

2. Someone approached me at the hospital and recommended a lawyer. Is it OK to use that firm?

Any law firm that solicits you, your family or friends at a hospital should be immediately reported to the District Attorney or the local disciplinary committee. This "ambulance chasing" is illegal, unethical and embarrassing to the profession. Further, if such conduct takes place at the start of representation, it will be impossible to trust the attorneys later on to do the right thing for you when you seek advice on how to proceed. I don't care how good they claim to be, if they are unethical than you should look elsewhere, or if you have already hired them, change attorneys.

In the next FAQ post, I'll cover legal fees for general liability cases as well as the more complex medical malpractice suits.

Labels: FAQ-Medical Malpractice, FAQ-Personal Injury, Personal Injury