Experience in Brain Injury
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A. Key Areas to Cover in the Initial Interview
Because of the importance of the initial interview, adequate time must be allotted. The initial interview will be used to assess the client, liability, damages and coverage issues. Enough time must be spent to obtain the client’s complete medical, familial, social, vocational and educational background. Assess the client. If he/she is obviously not credible, is manipulative or has unreasonable expectations, these issues have to be addressed immediately. He or she must be disimbued from any misconceptions they may come in with. At the initial client interview, the following issues must also be addressed:
1. The requirements of the no-fault tort threshold and its impact on the client’s ability to make a claim for pain and suffering;
2. The circumstances of the accident itself, particularly as it relates to liability, i.e., passenger, driver, pedestrian, citations, etc.;
3. Damages, including all medical care and treatment and future medical care;
4. Coverage issues, including the identity of all owners and operators of the vehicles involved, the identity of any uninsured or underinsured policies (including all household policies), the possibility that defendant was in the agency or employment of another at the time of the accident, and other coverage issues;
5. The possibility of a Workers’ Compensation claim or other third-party claims including general liability claims arising out of the accident;
6. Liens by Workers’ Compensation, Medicare, Medicaid or health care providers and their impact on any recovery;
7. Information to process PIP and MedPay claims must be obtained;
8. The fee arrangement and the terms of the contingent fee agreement must be explained in detail, particularly the client’s ultimate legal responsibility for costs;
9. The client should be given general parameters regarding the investigation, claim and litigation process, and the approximate time frames involved in each stage of the proceedings;
10. Authorizations must be obtained for medical records, police reports, wage information, etc.;
11. The client must be instructed not to talk to others regarding the accident and to keep a diary of relevant events and treatment;
12. Never give an opinion regarding the value of the case as you can’t conceivably know the value of the case at the first meeting; and
13. Most importantly, keep an open mind and listen. Although the client comes in with what appears to be a garden variety case, it may turn out that there are Workers’ Compensation claims, Social Security Disability claims, claims under private disability policies, general liability and other third-party claims that are properly asserted as a result of the accident.
As can be seen from the above, ample time must be devoted in an environment free from distractions, preferably in your own office so that the client understands the environment in which you work and becomes comfortable with you and your operation. B. What to Look for When Assessing the Case
There are a number of key issues that should be assessed when evaluating the strength or weakness of the case. None of these issues are determinative, but they all may have considerable weight effecting the value of the case.
First, the force, velocity and mechanisms of injury are important. Was this a minor accident with minimal or no force applied to the occupant of a motor vehicle, or is this a case where the individual sustained direct trauma through a fall or impact with portions of the interior of the motor vehicle? How fast were the vehicles proceeding? How much property damage was there? Where were the forces applied? Were the forces absorbed by the automobile bumper or transmitted to the occupants? Where was the occupant in the vehicle? Was he/she turned? Did the occupant impact any part of the interior of the vehicle? Were there other factors regarding the mechanics and forces of injury? This is important information. For example, it is known that lateral forces generally will cause more severe injury than direct linear forces. Any evidence of direct trauma as opposed to acceleration-deceleration injury, is important. Scars, bruises, contusions and other evidence of trauma can buttress the claim that there has been forces sufficient to cause soft tissue injury. Often the forces will be sufficient to cause disorientation, a momentary loss of consciousness or other signs or symptoms suggesting an insult to the neurological and neuromuscular systems. In an extreme case there may be a momentary or extended period of loss of consciousness all of which is consistent with neurological injury and other forces sufficient to cause a severe acceleration/deceleration injury or other impact competent to cause soft tissue injuries.
Second, if your client is either transported to or goes to an emergency room, the history and findings in the emergency room are often critical. If the history indicates injury and there are other findings in the emergency room consistent with physical trauma such as bruises, contusions, disorientation, neurological findings, then all of this information would be consistent with the type of forces competent to cause neuromuscular and other soft tissue injuries. Often, however, the only information in the emergency room will be the plaintiff’s subjective complaints. These cannot be discounted but obviously the lack of any findings in the emergency room of any kind can weaken the case.
Third, the results of any physical exam or testing should be considered. Typically in a soft tissue injury case, there will be no neurological findings. However, there are cases where, for example, x-rays will show a straightening of the lordosis of the cervical curve, consistent with a contraction of the muscles resulting from trauma. There may be other findings upon physical exam such as muscle spasm. Obviously, if there are more profound findings on neuroimaging studies such as disc protrusion or herniation, these would further support evidence of severe physiological injury.
Fourth, the progression and duration of symptoms must be looked at. Often when dealing with soft tissue injuries, there will be an initial period where symptoms are not severe but then they progress as swelling and other physiological changes occur. Although symptoms can be effected by a variety of factors including stress, strain, weather, and activity level, one would generally not expect to find inconsistent or marked increases or decreases in symptomology. Typically these symptoms follow a relatively predictable course and last for a relatively predictable duration. If your client’s clinical course is way outside the norm, it may raise a question of the etiology or validity of the injury.
Fifth, next the consistency of the history must be looked at. The plaintiff may have seen multiple health providers including a primary care physician, orthopedist, chiropractor, physical therapist, neurologist or other doctors. If the plaintiff gives a consistent history as to the cause of injury and the duration and progression of symptoms, the reliability of that history is bolstered. If, on the other hand, the history given by the plaintiff is not consistent or shows further “elaboration” of symptoms as medical providers are seen down the road, this can raise a question regarding the reliability and credibility of the plaintiff, and the reported cause of plaintiff’s injuries. All medical records should be closely examined and any inconsistencies in the history adequately addressed.
Sixth, any premorbid, that is, preaccident conditions, must be closely examined. Is this a plaintiff who was relatively healthy and functional prior to the injury, or is this a plaintiff who has had numerous prior visits to a chiropractor, physical therapist, with multiple complaints and multiple periods of disability or inability to work? This can be one of the most important factors in assessing the reliability and credibility of the plaintiff’s current complaints. If this is a person who has shown a conscientious work history, and has had little prior medical conditions or complaints, and who now has complaints of pain that interfere with the person’s normal functioning and ability to work, one would generally presume that these complaints are valid. On the other hand, a person who prior to the accident had long periods of dysfunction, either due to physiological or other causes, and who now attributes his or her inability to function to the accident, may be subject to some skepticism. Accordingly, plaintiff’s preaccident medical records, psychological records and employment records must be closely examined and any prior claims of injury, accident, work connected injuries or other claims whatsoever must be closely scrutinized.
Seventh, closely related to premorbid conditions, are any concomitant conditions that might account for or contribute to plaintiff’s symptomology and/or disability. Is this a plaintiff who other than the accident has relatively few stresses or traumas going on in his or her life which would account for their symptomology, or is this a plaintiff who even prior to the accident was having difficulties at work or in their marriage or had recently suffered the loss of a loved one, or who was under other psychological or physiological stresses? It is true that the defendant takes his victims as he finds them and that the plaintiff’s vulnerability or predisposing characteristics does not necessarily relieve the defendant from liability. However, if the primary cause of plaintiff’s complaints are not the accident in issue, but rather other traumatic events that can cause physiological stress, such as a catastrophic loss or job or marital stresses, then these factors must be considered. Because often these injuries are dependent on plaintiff’s subjective feelings and expression any other factors that could be effecting the plaintiff’s subjective experience should not be discounted.
Eighth, the consistency of findings and diagnoses among providers is important. Is this a plaintiff who has seen an internist, chiropractor, physical therapist and they have all concluded that the plaintiff is suffering from cervical musculoskeletal pain and lower back pain caused by the auto accident or is this a plaintiff who has seen multiple providers who have come up with different findings or diagnoses? For example, has one of the doctors concluded that plaintiff’s symptoms should resolve in two to three months where another provider has reached a completely different diagnosis and prognosis. These variations can occur in the most genuine of cases. However, nonetheless, if there is a wide disparity between each providers findings and diagnosis, the underlying reliability of the scope and extent of injury must be considered.
Ninth, the plaintiff’s responsiveness to treatment needs to be considered. Generally, with appropriate treatment, the plaintiff’s injury should improve and their ability to function increase. Through physical therapy, chiropractic manipulation and rehabilitation, exercise and other prescribed treatments, most soft tissue injuries will resolve in time. If the plaintiff shows no responsiveness to treatment other underlying mechanisms must be considered. It may be that plaintiff’s injuries are more serious than considered initially and that additional testing is required to re-evaluate the diagnosis. For example, it may be that plaintiff has a herniated disc but because there has never been an MRI, it has not been previously diagnosed. On the other hand, if there has been complete and thorough testing and plaintiff’s injuries are primarily musculoskeletal in nature, the lack of responsiveness to treatment may raise a question regarding the reliability of the findings and plaintiff’s subjective complaints.
Tenth, and perhaps most importantly, is the plaintiff’s presentation and credibility. Common sense and human experience should not be thrown out the window when evaluating these cases. An individual’s presentation and credibility must and should be assessed. Many individuals are truthful, reliable and credible individuals and often one can tell that this individual has no motivation and is making no effort to exaggerate or elaborate their symptoms. There are other individuals who are obviously selective in the history they give and who may for example attribute all of their problems to a relatively minor accident and ignore other factors that show up in medical, employment or other records. If you question the plaintiff’s credibility as a result of concrete evidence raising a question regarding the reliability of plaintiff’s subjective complaints, then you can be sure that a judge and jury will as well. This is an area that should be thoroughly evaluated as the case will largely rise and fall on the plaintiff’s believability and on the judge or jury’s ability to connect with the plaintiff. A person who is naturally likeable and believable is perhaps the strongest asset in any case.
The above considerations are particularly important in the “soft tissue” injury case. Because there is rarely objective evidence substantiating the injury, there is a high degree of skepticism among defense attorneys, adjusters and even judges and jurors regarding these claims. That is why is it critical right from the outset to spend considerable time with the plaintiff to assess all of the above issues and assess the plaintiff’s credibility, likeability and ability to communicate as a witness. The above information must be closely scrutinized so that it can be measured against the plaintiff’s subjective complaints and the reported history. It is virtually impossible to obtain too much information regarding the plaintiff, the nature of the injuries or the circumstances of the accident. The more information you have on all of these issues the better you are able to assess the case and the plaintiff’s credibility which in the end is one of the most important factors in the case. In fact, the plaintiff’s credibility and your credibility are probably the most potent weapons you have to fight the unfortunate skepticism that pervades these cases. The other weapon is documentation. Make sure that the plaintiff thoroughly documents each treatment, keeps a running diary of symptoms and treatment, follows up with appointments, is compliant with treatment, and completely and thoroughly reports all symptomology to his or her medical providers so that it is documented in plaintiff’s medical records. Make sure that plaintiff seeks out and obtains appropriate medical treatment so that there is a thorough and complete examination and reliable diagnosis, prognosis and treatment prescribed.
C. The Difficult Job of Proving Pain
Please see Section V-E: How to Best Demonstrate the Impact of Injuries, infra.
D. How to Conduct a Thorough Case Investigation
Perhaps the most critical factor in investigating the case is timing. One must act quickly. Bruises, contusions and other signs of injury should be photographed. The condition of the vehicles should be photographed. The scene should be photographed and, in the appropriate case, analyzed as soon as possible by an accident reconstructionist. Because witnesses disappear and memories fade, it is essential to obtain written statements, preferably from an investigator. In the event there is a subsequent dispute concerning what the witness stated, the investigator can be called as a witness. This is preferable to counsel taking statements and risk being disqualified.
With respect to preserving evidence that is not within your control, but is controlled by another party, an action may be brought under Mass. Rules of Civil Procedure Rule 34(e) for the preservation and production of evidence prior to instituting suit on the underlying claim. Often such a suit should be brought within days of the accident.
In the initial investigation in addition to the above, the following should be addressed:
1. All medical records and bills for the client’s treatment must be obtained. In an appropriate case, it will be necessary to obtain the client’s prior medicals as well (in the case of pre-existing injuries, etc.). In addition, the actual office records of physicians and other private providers should be obtained and, where appropriate, a full report addressing diagnosis, disability and prognosis;
2. Obtain police, accident and Registry of Motor Vehicle reports. In addition, any documents where your client has previously given a statement regarding the accident must be obtained, such as PIP applications, accident reports, forms for health providers, Workers’ Compensation applications, Social Security Disability applications, questionnaires for physical therapy and chiropractors, hospital admission forms, and client’s statements in hospital records, or to insurance adjusters or investigators, etc.;
3. Look for newspaper articles or other accounts of the accident;
4. There may be a transcript of a related criminal hearing, or of an administrative proceeding, including hearings before the Board of Appeal of Motor Vehicle Liability Policies and Bonds and hearings before the Division of Industrial Accidents;
5. Ambulance run reports, fire department reports, reports of tow truck operators may provide helpful information;
6. In the appropriate case, the plaintiff’s past history must be investigated. This investigation would include obtaining all prior medical records, school records, employment records, prior claims or law suits and other relevant information;
7. Experts should be retained earlier rather than later. Such experts could include accident reconstructionists, biomechanical experts, engineering or design experts, vocational and economic experts, etc.; and
8. Finally, where there is inadequate insurance coverage or other potential policies available, an investigation of the defendant is appropriate. At the time of the accident, the defendant may have been employed by, or acting on behalf of, another who is vicariously liable. The defendant operator or owner may have other applicable policies or assets sufficient to satisfy a judgment.
It is important during this stage, as well as other stages in the process, to keep in communication with the client. Send the client copies of correspondence and other materials generated from your office. It is extremely important to impress upon the client at this stage, as well as subsequent stages, that there is activity on his case and that it is not just sitting on the bottom of some pile awaiting your attention. Use your paralegals and other support staff to keep this stream of activity in motion.
E. Special Liability Issues in Soft Tissue Injury Claims
The “tort threshold” under Mass.G.L.c. 231, §6D must be considered. Under G.L.c. 231, §6D, pain and suffering damages in a tort action arising out of the operation of a motor vehicle may be recovered only to the extent that the “reasonable and necessary expenses” incurred in treatment for the injuries arising out of the accident exceed $2,000. Although this is rare, in a close case, the defense counsel could challenge whether or not plaintiff’s treatment was “reasonable and necessary” so that the $2,000 threshold has not been met.
It is well settled in Massachusetts that the tortfeasor takes his victim as he finds him. This is a particularly important factor in soft tissue injuries because the nature of the injury is such that often there are recurring or chronic problems and the area injured is particularly vulnerable to reinjury or exacerbation of symptoms such as low back pain or neck pain. A defendant is liable for the additional pain and suffering resulting from an injury that aggravates a preexisting condition. Thurlow v. Shaws Supermarket, Inc., 49 Mass.App. Ct. 175 (2000). If because of prior injury or other conditions, the plaintiff is particularly susceptible or predisposed to sustaining a particular injury, the defendant is still liable for all of the pain and suffering resulting from an injury even if a person who was not so presupposed would not have been injured.
Further, a defendant can be held liable for a subsequent injury if there is a causal connection between the original harm for which the defendant is responsible and the subsequent injury. See, Wallace v. Ludwig, 292 Mass. 251 (1935). For example, if the plaintiff falls and further injuries himself because of a weakness in the knee that is due to an original injury to the knee, which was caused by defendant’s negligence, the plaintiff can recover against the defendant for the damages sustained in the subsequent fall. The burden, however, is on the plaintiff to establish such a causal connection. The defendant is also liable for any complications arising from medical treatment required to treat the injuries that defendant caused, even subsequent complications resulting from negligent medical treatment.
F. Damages – Burns, Scars, Strains and Sprains
Generally speaking, there are three main categories of damages:
1. Out-of-pocket losses (medical specials and lost wages);
2. Lost earning capacity; and
3. Pain and suffering.
Each of these areas have to be developed to assure that your client obtains the compensation to which he or she is entitled.
Medical Expenses. Under the Massachusetts No-Fault statute, Mass. G.L. Chapter §36D, as a prerequisite to suit, the plaintiff must show that his fair and reasonable medical expenses exceed $2,000.00. The insurers can, and often do, challenge the fairness and reasonableness of these medical expenses. If challenged, the plaintiff must not only show that the expenses were fair and reasonable, but also that they were “necessary”. See, Victum v. Martin, 53 Mass. App. Dec. 1 (1973). At trial the medical expenses can be established pursuant to an affidavit under Mass. G.L. Chapter 233, §79G. Be sure to comply with the statute in all respects, including the time and notice requirements, as well as the certification under the penalties of perjury from the doctor who is certifying the accurateness and fair and reasonableness of the bills and to his licensure.
In addition to proving past medical expenses, the plaintiff is entitled to recover for the fair and reasonable cost of reasonably certain future medical services. These services can be established by the plaintiff’s treating doctor, who should testify to the future medical services that will be needed and, if possible, to the cost of the same. Often the plaintiff will utilize a nurse or a life-care planner to project the future medical services and cost of the same, and then an economist to reduce these figures to present value.
Impairment to the Plaintiff’s Earning Capacity. Loss of earning capacity is not equivalent to loss of wages, although plaintiff’s prior wages is some evidence of his earning capacity. See, Mitchell v. Walton. 305 Mass. 76 (1940). In fact, plaintiff may be unemployed or never have worked and still have an earning capacity. In order to recover for loss of earning capacity, the plaintiff must prove that he was, or is, disabled from work, the probable duration or permanency of this disability, and the monetary earnings that have been lost or that he was capable of earning as a result of the disability. Plaintiff may use a vocational expert to establish the plaintiff’s prior work capacity and post-accident disability or residual work capacity. An economist may be used to establish the value of plaintiff’s work capacity and reduce that amount to present value. This calculation is complicated, in that it takes into account not just wages, but other benefits, expected growth rates in wages and the appropriate discount rate to reduce that amount to present value. See, Jones and Laughlin Steel Corp. v. Pfiefer, 462 U.S. 30 (1983); Griffin v. General Motors Corp., 380 Mass. 362 (1980).
Pain and Suffering. This area includes mental and physical pain and suffering, both past, present and future. As well as, loss of function, humiliation and embarrassment, disfigurement, scarring, anxiety, mental distress and all other forms of pain and suffering. Generally, the plaintiff and the plaintiff’s treating doctors will be the primary source of proving plaintiff’s pain and suffering. The doctor should give an opinion regarding his prognosis covering the plaintiff’s future pain and suffering. Although the plaintiff can certainly describe his mental and physical pain and suffering, often it is more persuasive coming from witnesses other than the plaintiff, including relatives and friends. Demonstrative aids such as “day-in-the-life” films can also be utilized to show the impact of plaintiff’s injury.
A relatively recent issue is whether or not “loss of enjoyment of life” (so-called “hedonic” damages) can be sought as a separate and distinct element of recovery from pain and suffering. Most courts include it as encompassed within pain and suffering. In either case, evidence relating thereto can be introduced and argued to the jury. The general rule is that, in order to recover for pain and suffering, the plaintiff must have been conscious and aware of the pain and suffering. In other words, damages for pain and suffering are not available to a comatose patient.
In addition to the damages that are recoverable by the injured party himself, a spouse, parent or child of the injured party may recover for loss of “consortium.” These damages compensate for the loss or interference with the relationship between the family member and the injured party, not for the pain or trauma of seeing a loved one injured or the shock of witnessing plaintiff’s injuries. Loss of consortium claims are available to a spouse (Diaz v. Eli Lily Company, 364 Mass. 153 (1973)), to a parent of a minor child (Ferriter v. Daniel O’Connell Sons, Inc. 381 Mass. 507 (1980)), to a dependent adult child who lives at home (Morgan v. Alumiere, 22 Mass. App. Court 262 (1986)), and to a parent of an adult-dependant child if the child is seriously injured (G.L. Chapter 231, §85 X).
The claim is not to compensate for grief, but for the associational loss. Accordingly, evidence of the nature of the party’s relationship and the extent to which that relationship has been impaired is necessary. This is best conveyed by anecdotal evidence. The consortium plaintiff’s claim is not derivative but, rather, is independent, so it is not reduced by the injured party’s comparative negligence. See, Feltch v. General Rental Company, 383 Mass. 603 (1981).
In addition, under certain circumstances, there may be so-called “bystander” recovery. These damages represent recovery for the emotional distress inflicted upon a family member who happens to witness, or immediately comes upon, an accident wherein another family member has been injured. There has been a long and somewhat convoluted evolution of the tort of negligent infliction of emotional distress, originally requiring that the bystander also have sustained a physical impact from the accident. Courts subsequently abandoned the “physical impact” requirement where the bystander’s emotional distress was accompanied by substantial physical symptoms. See, Dzilkonski v. Babineau, 375 Mass. 555 (1978). In order for the bystander to recover, there must be (1) physical proximity to the accident, (2) temporal proximity to the negligent act, and (3) familial proximity to the victim. See, Ferriter v. Daniel O’Connell Sons, Inc., 381 Mass. 507 (1980). In addition, to recover for emotional distress not accompanied by physical impact, the plaintiff must show that his emotional distress is manifest by some objective physical symptomology. See, Payton v. Abbott Labs, 386 Mass. 540 (1982). The type of objective evidence needed to corroborate a claim of emotional distress may include such symptoms as headaches, insomnia or even loss of appetite. See, Sullivan v. Boston Gas Co., 414 Mass. 1-9 (1993).
Massachusetts follows the “collateral source” rule which prevents a defendant from reducing his liability by showing that the plaintiff’s economic losses were lessened by payments from other “collateral sources”, such as payments by health insurance, Workers’ Compensation insurance, private disability policies, pension, Social Security benefits or other “collateral sources”. Massachusetts has recognized two major exceptions to this rule:
1. To directly contradict a plaintiff’s testimony of alleged circumstances resulting from his injury, See, Corsetti v. Stone Co., 396 Mass. 1 (1985); and
2. Within the discretion of the Trial Court, to show malingering, that is that it’s the plaintiff’s receipt of substantial monetary benefits, rather than the injury, that is keeping plaintiff out of work. See, Pemberton v. Boes, 13 Mass. App. Ct. 1015 (1982).
Because most health care providers, Workers’ Compensation insurers and other third-party payers have a right to subrogation, the collateral source rule does not result in a windfall to the plaintiff; but rather, merely shifts the ultimate responsibility for the loss to defendant’s insurer.
III. SETTLING THE SOFT TISSUE INJURY CASE
A. Understanding Alternative Dispute Resolutions/Mediation
There are a number of alternative dispute resolution mechanisms that can be considered.
Mediation: Mediation is informal, non-adversarial and a non-binding procedure where the parties agree to submit the relevant facts and the position of each party to an impartial mediator who acts as a facilitator to bring the parties towards a settlement. The parties in effect reach their own negotiated agreement with the aid and facilitation and recommendations of the mediator. Mediation has proved to be an effective mechanism for resolving disputes.
Arbitration: Arbitration is a more formal process than mediation. The arbitrator is empowered to make a binding decision which is often unchallengeable, as there is no record of the proceedings, trial transcript or basis for appellate review. The parties choose the arbitrator and arbitration forum, and the arbitrator or arbitrators are empowered to reach a final resolution of their dispute. The advantage of arbitration is that often a trained and experienced practitioner in the specific area involved can determine the dispute with much less cost and expense and delay, and even uncertainty involved in the litigation process. A speedy resolution is achieved and one that is final. The arbitrator conducts a hearing at which the parties generally will present witnesses, documents and evidence, although the strict rules of evidence are not generally followed. This can pose advantages and disadvantages. In addition, the finality of the decision and the inability to effectively challenge any errors that are allegedly committed can be a disadvantage as well as an advantage.
Often coupled with arbitration is high/low arbitration. By agreeing to a high/low notwithstanding whatever the arbitration award is, both parties minimize the risks. The parties generally agree in writing to a minimum and maximum arbitration award without disclosing this amount to the arbitrator. After the hearing, the decision of the arbitrator is binding but the parties agree that the amounts paid will be no greater nor less than the minimum or maximum amounts agreed to earlier.
In addition, there are other alternative dispute resolution mechanisms. There are mini-trials presided over by either qualified attorneys, retired judges or any other individual selected by the parties, where evidence is presented in a mini-trial format, and a non-binding verdict is generally rendered. The process can be used as a focus group to understand strengths and weaknesses in the case, and as an informational guide to the parties to yield subsequent settlement.
B. Structured Settlements
A structured settlement is simply a settlement where the defendant, instead of paying one lump sum, agrees to pay periodic payments to the plaintiff. A structured settlement can have many advantages. First, from the defendant’s point of view, because the present value of the settlement is significantly less than the total payments, the settlement can reduce the defendant’s costs. For this reason, however, it is always imperative that plaintiff’s counsel find out the cost of the annuity or other structured component of the settlement, so that plaintiff’s counsel can fairly and accurately advise his client as to the actual value of the settlement and further, accurately calculate the true value of the settlement for purposes of collecting the attorney’s contingent fee. The other advantages to the defendant is that a considerable sum of the money will still be held by the defendant and it gives additional flexibility in negotiations and settlement discussions.
The primary advantages of a structured settlement from the plaintiff’s perspective is that it guarantees regular payments over an extended period of time, and in that fashion provides security and protection from mismanagement, loss or waste of a large sum of money. In addition, the interest component of the deferred payments is tax free. Given the tax free status of structured payments, they can often provide a competitive rate of return while providing security and guaranteed payments. Of course, the financial strength and security of the company providing the annuity and the company guaranteeing the structured payments must be carefully assessed. An expert should be retained to give an opinion on both the value of the structured settlement, the internal rate of return and the financial strength and security of the obligor. The other advantage of a structured settlement from the plaintiff’s perspective is its flexibility to meet the individual needs of the plaintiff. For example, the deferred payments can be timed to coincide with children entering college, or other major financial events. Further, it can be used as a mechanism to provide survivorship benefits through guaranteed payments, in the event of the plaintiff’s death. Because the payments may be deferred over a substantial period of time, the total payments may be quite large, although it has to be made clear to the plaintiff what the actual present value of the structured settlement is notwithstanding the seemingly large total payout. The structured settlement is most desirable for an individual who might have problems managing large sums of money and who has long term financial needs. In addition to the deferred payments, of course the structured settlement has to provide an immediate lump sum payment to cover up front expenses, attorneys fees and medical liens and expenses. The major advantage of a structured settlement over other investment options is the tax free status of the interest component and the fact that payments can be guaranteed over a long period of time without risking loss of principal. Of course, the disadvantage is that they are fixed and if circumstances change or the client’s needs change, they generally cannot be restructured to accommodate these change in circumstances.
In a case involving permanent disability, a structured settlement can be designed which preserves the plaintiff’s eligibility for public and private benefits such as Social Security disability income and Medicare and Medicaid benefits through the use of a special needs or other appropriate trusts, so that collateral sources can still be utilized to pay expenses while the plaintiff may maintain the future benefits derived from the structured settlement to supplement these benefits.
C. Lien Considerations To Be Aware Of
When it comes time to settle the case, liens become a substantial issue affecting the net amount which the client will realize, which, of course, is generally all that the client is interested in. The Plaintiff has little incentive to authorize a settlement which will net him or her very little, and will merely put money in the hands of the medical providers and you, the attorney. Therefore, counsel’s knowledge of liens and ability to negotiate the same can often become the determinative factor in whether or not a case will even settle. Counsel must also have a full understanding of liens to avoid the very painful realization that after a settlement, counsel himself is exposed to liability for some unpaid medical bills that were not properly attended to at the time of settlement.
Workers’ Compensation carriers, Medicare, Medicaid, hospitals, other institutional medical providers, private physicians and private health care providers, may all have a lien in your client’s third-party recovery. The attributes of each of these liens and the ability to negotiate the same are somewhat different. The practitioner should be fully aware of these differences.
Under Mass. G. L. Chapter 18, §5, Medicaid has a right to be reimbursed for payments made by it from a third-party recovery. Under this statute, when a claimant receives a payment from a liability insurer, Workers’ Compensation insurer, or other third-party, he is obligated to repay the Department of Public Welfare to the extent of the benefits provided by it, but only to the extent that the benefits are as a result of the injuries sustained in the accident. Generally, the recipient is also required to sign an assignment to the Commonwealth to the proceeds of his claim to the extent of the benefits provided by Medicaid. The attorney who is aware of such an assignment is probably obligated to pay Medicaid, whether or not he has also received a notice of lien. When dealing with Medicaid, unlike Medicare or other medical providers, there is no right to insist that Medicaid reduce its lien by its pro-rata share of attorneys’ fees and expenses. The Department of Public Welfare will entertain requests for such reductions. This lien, as with any other lien, should be addressed and negotiated prior to any finalized settlement. Once there is a final settlement, you lose your negotiating leverage. Namely, if the lien holder does not reduce its lien, the case will have to be tried and could be lost, thereby eliminating the lien holder’s ability to recoup any of its payments. Further, until it is clear what the lien holder will accept in compromise of its lien, the plaintiff cannot intelligently give consent to any settlement.
Medicare, which is the federal program, has a similar right to repayment from third-party recoveries. This right to reimbursement is enforceable, whether or not notice is given to third-parties. Further, third-parties who do not satisfy the lien, including attorneys, can be held liable to repay Medicare. Medicare will reduce its lien by the “procurement costs”, that is, attorneys’ fees and costs that the plaintiff spent to obtain the judgment or settlement.
Hospitals, private insurers, such as Blue Cross and Blue Shield, and HMO’s may assert a lien by virtue of Mass. G. L. Chapter 111, §70D and also, generally, by virtue of the contract they sign with the recipient. In order to perfect the lien under the statute, the third-party must receive notice with the specific information referred to the statute. Further, if you receive a lien notice from a hospital pursuant to the statute, you are entitled to request a “certified itemized statement of all charges” for the injured person. If the hospital does not send such a statement within ten (10) days, the lien is dissolved. However, even if the hospital does not perfect its lien, its ability to be paid directly from a third-party settlement is not affected. It does not negate the underlying debt or the client’s obligation to pay the same. For this reason, you are not necessarily doing your client any favor by ignoring these providers at the time of settlement. To the contrary, if this issue is not fully addressed with the client prior to settlement, and an informed decision made on how to deal with these unpaid medical bills, the attorney is likely to hear back from an unhappy client who is being pursued by these medical providers. Therefore, it is generally best to deal with any of these unpaid medical providers, whether they have perfected a lien or not, up front, and to negotiate with them while you have the leverage. If this is not done, at the very least make sure the client is fully informed, in writing, of his or her subsequent exposure and confirm in writing that, at his or her direction, you have not attempted to resolve these outstanding and unpaid bills or to pay the same from the settlement proceeds.
Note that the statute applies only to hospitals, HMO’s or other medical service corporations and not to private physicians. Generally, where there is a third-party claim and the client is unable to pay for current medical treatment of physicians, chiropractors, therapists, etc., or there is no health insurance to cover those bills, the doctor will obtain an assignment and put the attorney on notice of the same, or even have the attorney sign the same as well as the patient. Where the client, or perhaps even the attorney, has asked the doctor to, in effect, extend credit based on the prospect of a third-party recovery, it would not only be, perhaps, a legal liability but, certainly, counterproductive to one’s long term practice and reputation to fail to address the doctor’s bill when it comes time for settlement. This is so even if the doctor has not perfected a lien. However, one’s first duty is to the client. In the unusual case where the client demands disbursement of settlement proceeds without satisfying outstanding medical bills from the settlement proceeds, and there has been no legally enforceable promise or lien to pay the doctor, one must comply with the client’s directives. Again, this should be done only after the client is fully informed of the options and the client’s continuing exposure, and this direction is confirmed in writing.
If the Plaintiff is injured during the course of employment, Workers’ Compensation insurance carriers will have a lien against the “third-party” action. Mass. G. L. Chapter 152, §15. The statute provides for the Workers’ Compensation insurer to bear its proportionate share of the cost of recovery, including attorneys’ fees. Where the settlement involves a Workers’ Compensation lien, the settlement must be approved by either the Superior Court or the Department of Industrial Accidents. Generally, Workers’ Compensation insurers, having a good understanding of the risks of trial, particularly where liability is questionable, are willing to negotiate a reasonable compromise of their lien.
D. What To Look For In Judicially Supervised Settlements
Please see Appendix A.
E. Drafting Effective Settlement Documents
Please see Appendix A
V. TRIAL OF THE CASE – THE PLAINTIFF’S PERSPECTIVE
A. Jury or Nonjury – Plaintiff Considerations
Pursuant to Mass.G.L.c. 231, §102C cases filed in the superior court should have a reasonable likelihood that the plaintiff will recover over $25,000. If there is not a showing that there is a likelihood of recovery in excess of $25,000 the case will be remanded to the district court. However, the district court is empowered to award any amount in damages which may be well in excess of $25,000.
If on the other hand, the plaintiff places the case in suit in the district court, the plaintiff needs to fully understand when and under what circumstances he may have waived a trial by jury. When the plaintiff submits his case to the district court, he will allege damages over or under $25,000. In either case, the plaintiff must file a timely claim to a jury trial pursuant to Mass.G.L.chapter. 231, §103. Under that statute, a plaintiff who commences a civil action in the district court may file with the district court a “claim to a jury trial in the superior court”, within thirty days of 1) commencement of the action or 2) service of the plaintiff a responsive pleading, or 3) within such further time as the court may allow. To be safe, this should generally be done with the complaint, either in the complaint itself or in a separate document filed with the district court, claiming trial by jury pursuant to Chapter 231, Sec. 103. The failure to request a trial by jury in the superior court will result in a finding that the plaintiff has waived a right to jury trial. This is so for cases alleging damages under or over $25,000.
However, depending on the amount alleged as damages, the defendant must make a choice. If the case is filed in the district court asserting damages over $25,000 the defendant must make a motion to remove the case to the superior court pursuant to Mass.G.L.chapter 231, §104. If said defendant does not timely make such a motion, the defendant has waived a right to jury trial in the superior court. However, in cases filed in the district court asserting damages less than $25,000 the case will be tried in the district court and if the defendant is aggrieved by the outcome the defendant may claim his right to trial by jury pursuant to Mass.G.L.chapter 231, §104 then.
If, because the plaintiff has not claimed a trial by jury in the superior court and has filed the case in the district court, or the defendant has not removed the case, the one and only trial will be before a district court judge. Whether the case is tried before a judge or jury is obviously critical and therefore the above procedural mechanisms must be fully comprehended. Further, whether or not the case will be tried once only in the district court or is subject to re-trial in the superior court before a jury, may effect a number of considerations. It obviously will effect the time and expense invested in the case. Accordingly, one may decide to videotape the testimony of the treating doctor as it will be necessary to present this testimony twice.
The procedures and rules regarding filing a case in the superior court in the first instance must also be considered. If the suit is originally filed in superior court and then transferred to the district court pursuant to Mass.G.L.chapter 231, §102C, any party to the transferred action aggrieved by the finding or decision of the district court may, as of right, have the case re-transferred to the superior court for re-trial. The request for re-transfer to the superior court must be filed with the clerk of the district court within ten days after the notice of the district court finding or decision. Any party who had claimed a trial by jury during the initial pleadings in the superior court prior to transfer to the district court will have preserved his or her jury trial right upon re-transfer to the superior court. Even if the case was filed with the superior court in the first instance, if the party did not claim trial by jury in the superior court, upon re-transfer from the district court to the superior court that party is not entitled to trial by jury and has waived that claim.
If the case is to be tried before a judge as opposed to a jury, obviously the case will be tried differently. District court judges have generally heard and decided hundreds of these cases and therefore that particular district court judge’s approach to these cases should be well known and can be discovered from talking with other attorneys, the clerk, and other sources. One should become familiar with the judge and his or her approach to these cases. Often at the pretrial conference the district court judge will tell you exactly what approach he takes in valuing total or partial disability. Some judges follow formulas similar to those applied by adjusters in valuing periods of partial or total disability as well as lost earning capacity and permanent loss of function. In trying the case to the judge a report by the treating doctor under Mass.G.L.chapter 233, §79G, may be just as effective, and will certainly save money, as live testimony from the doctor. The actual documents such as accident reports and medical records can be directly relied upon without the necessity of having a live witness interpret and explain this material. In addition, the district court judge might be agreeable to accepting a chalk or document which lays out the period of total and or partial disability, lays out all other special damages or itemizes all activities that have been effected by the plaintiff as a result of his or her injuries. These chalks can be very helpful in highlighting and summarizing the most pertinent elements of damages. They can be utilized to bolster and reinforce the plaintiff’s and medical providers own testimony regarding these symptoms and disabilities. The approach taken with district court judges should be one of objectivity and attempt to substantiate with documentation as much of the items of damages as possible. The district court judge has heard hundreds of these cases and the judge is much more likely to be persuaded by concrete, specific and succinct presentations than impassioned oratory which overdramatizes or overstates the case.
By contrast, in the superior court jury trial, the case will be presented completely differently. Jurors do not routinely hear soft tissue injury cases and therefore carry little or no knowledge regarding these injuries, never mind a preconceived approach or formula to apply to these cases. Instead the amount they award for pain and suffering and other intangible losses is going to depend to a large extent on the presentation and credibility of your witnesses, the strengths of the medical testimony and your own persuasive abilities. Therefore, live testimony of a doctor, anatomical charts and other medical devices showing the mechanisms and extent of injury, persuasive presentations of the plaintiff’s pain and suffering through medical evidence, the plaintiff himself and other witnesses will be important. It is essential to personalize the plaintiff and get the jury to like and believe the plaintiff and the extent of his or her suffering. Concrete anecdotes with respect to how the plaintiff’s life has been effected are generally more effective than broad generalizations. Again, however, any over statement of the damages in the case will come back and haunt you. The defendant will be sure to exploit even the slightest exaggeration casting a net of suspicion over the entire testimony. Therefore, again, it is better to understate than overstate the claim. The credibility of you, your medical witnesses and the plaintiff is the medium that is ultimately going to sell the case or not. Even in a jury case, medical reports under Mass.G.L.chapter 233, §79G, should be obtained. Keep in mind that the statute requires written notice of intention to offer the itemized records or bills into evidence which must be served on all parties by certified mail not less than ten days before the introduction of same into evidence. The statute requires that copies of all such bills, records and reports be included with the written notice sent to the other parties. The records should be certified and must be certified when entered into evidence. While long sessions of reading documents to the jury should be avoided, key medical reports and findings can be read to the jury once they are in evidence. This is an effective way to bolster the plaintiff’s testimony and that of the live medical witnesses.
B. The Use of Expert Witnesses To Prove The Legitimacy of the Soft Tissue Injury
Experts now play a prominent role in the trial of virtually every case, and certainly this is true in soft tissue injury cases. There may be medical experts, chiropractors, accident reconstructionists, biomechanical engineers, vocational experts and economists just to name a few. It is imperative that these experts be properly prepared and that their examination and presentation be persuasive.
Where the expert is testifying based on a science or subject matter that has not yet been generally accepted in the scientific community, the decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 125 (1993), should be kept in mind. Under Federal Rule of Evidence 702, “general acceptance” of the scientific theory upon which the testimony is based is not determinative to admissibility. Rather, the trial judge must assure that the underlying theory is reliable based on a number of factors including whether the theory or technique has been tested, subject to peer review and publication, the existence of standards, as well as its acceptance within the scientific community. Massachusetts state courts follow the “Daubert” approach. See, In Theresa Canavan’s Case, 432 Mass. 304, 733 N.E.2d 1042 (2000); Commonwealth v. Canigan, 419 Mass. 15, 641 N.E. 2d 1342 (1994).
When presenting an expert, one must keep in mind the facts or data that the expert can properly rely on in rendering an opinion. Generally an expert may base his opinion on facts personally observed by him, evidence already admitted in the proceeding or which the parties represent will be admitted, and, in Massachusetts, facts or data not in evidence, including hearsay, if the facts and data would be admissible in evidence. See, Department of Youth Services v. A Juvenile, 396 Mass. 516 (1986). In Federal Court, however, the fact or data need not be admissible in evidence if of a type reasonably relied upon by experts in the field in forming an opinion. See, Federal Rule of Evidence 703.
Because the direct examination of any expert tends to follow a somewhat conventional pattern, particularly with respect to medical experts, a direct examination of plaintiff’s medical expert can be outlined as follows:
1. Background and Training
c. Medical licenses
d. Clinical experience
e. Teaching and consulting experience
f. Areas of research
h. Professional associations
i. Hospital affiliations
2. Area of Specialty
a. Describe specialty generally
b. Describe diagnostic capabilities of that specialty, particularly as it relates to the plaintiff’s type
c. Describe other diagnostic tools that are available (e.g., X-Ray, CAT scan, EMS, EEG, MRI, SPECT
d. Describe significance of positive or negative findings
3. Knowledge of the Plaintiff
a. Emphasize treating plaintiff
b. Emphasize number and length of visits
a. History taken
b. Why history is important
c. Relevance of history to causation, diagnosis, prognosis, etc.
5. Examination of Plaintiff
a. Nature of examination
b. Subsequent evaluations
c. Tests performed
6. Records by Other Providers reviewed for evaluation
a. Go through the records chronologically
b. Explain significant findings
7. Opinion regarding Diagnosis (“Do you have an opinion, Doctor, with a reasonable degree of medical certainty as to diagnosis?”). The doctor should give the answer, the basis of the opinion, and anticipate and address why the defendant’s medical expert’s opinion on diagnosis is not correct.
8. Opinion regarding causation (this should be handled similarly to the opinion regarding diagnosis, i.e., an answer, basis of opinion, and anticipating and addressing any arguments to be raised by defense experts concerning causation).
9. Opinion regarding Disability
a. Describe impairments
b. Describe effect on work functioning and general functioning
10. Opinion regarding Prognosis (i.e., permanent and total disability, temporary, recommended future medical course, costs of the same, etc.).
Some general rules should be followed when examining the expert on direct. First, the examination must be understandable to the jury. It should be kept simple and as concise as possible. The expert must understand that, unless he is able to communicate his information to inexperienced and often unsophisticated jurors, it is wasted. Any words used by the expert that are more than two syllables should be explained to the jury. The expert should make liberal use of demonstrative aides to illustrate his testimony, such as photos, drawings, X-rays, anatomical models, charts and anything else that will make the injury understandable to the lay person. Make sure that you meet at length with the expert in advance of his testimony to develop a rapport and to work with him to make his testimony understandable to the jury. He should be fully informed so as to be able to anticipate and address the opposing party’s medical expert’s opinions. He must be prepared for cross-examination, be comfortable with you and what he can expect, and understand such things as the difference between “reasonable medical certainty” and scientific certainty.
Once you have spent the significant time and money involved in retaining and properly preparing your expert, make sure that you use the expert to your full advantage. Diagnosis and causation should not be the only issues addressed by the doctor. The doctor can also address disability, prognosis, future medical care, the cost of future medical care, the plaintiff’s past and present pain and suffering, as well as an opinion regarding future pain and suffering.
Cross-examination of the opposing party’s experts is also critical. This is generally where the less experienced attorney runs into difficulty. If certain basic rules are followed, however, the potential for hurting your case is certainly minimized, and the likelihood of the cross-examining performing its intended function, which is to obtain concessions bolstering your case and to discredit testimony harmful to your case, can be accomplished.
A good cross-examination at trial depends upon good pre-trial preparation. Expert Interrogatories must be propounded under Mass. Rule Civil Procedure 26(B)(4). In addition, an investigation of the expert’s prior writings and testimony should be undertaken. The expert’s prior writings may be obtained at a medical library. There are various avenues of obtaining an expert’s prior testimony (such as other attorneys and trial associations such as MATA, ATLA, etc.). In addition, it is essential to learn the medical subject matter. To have little or no knowledge of the medical subject matter is to go into cross-examination severely disadvantaged. As to each of the opposing party’s experts, it is useful to create a binder with the expert’s CV, prior relevant publications, prior relevant testimony, prior reports in this case, prior deposition testimony in this case, excerpts from any learned treatises that may be used to impeach the expert, and an outline of the cross-examination.
The first area for cross-examination is to obtain concessions. Get the expert to acknowledge as many positive points in your case as possible. For example, the doctor may have difficulty disagreeing with the majority of the information contained in your client’s medical records and will have to acknowledge these positive points. Using the opposing expert as a sounding board to reinforce positive evidence in your case will narrow the issues considerably, and reinforce this positive evidence before the jury. In addition, even the most partisan expert would concede that pain can be very real even though not objectively verified, as can other subjective symptoms, that subjective complaints and the patient’s history are relied on all the time in prescribing treatment, making diagnoses, even without positive objective proof of an injury, and that the expert has no reason to disbelieve certain findings made by plaintiff’s treating doctors, etc.
After positive concessions are obtained, the expert may then be cross-examined with the goal of discrediting those areas in dispute. The expert’s qualifications may be addressed, including his or her lack of certification or specialty in a particular area, lack of clinical, professional and educational training, etc. Then the expert may be impeached for any bias or interest. Often experts may have a long association with defense counsel. Most defense experts are hired for the sole purpose of giving an opinion to defense counsel in connection with a particular litigation. This should be emphasized and pointed out on cross-examination (and compared to the plaintiff doctors’ treating status). Show that providing expert testimony on behalf of this particular defense counsel, or for defendants in general, constitutes a significant part of the doctor’s practice. Emphasize that he never treated the plaintiff and, perhaps, never saw him or her or saw him or her only once on an isolated occasion. Point out the expert’s financial interests in this case and in testifying on behalf of defendants generally.
After these “collateral” attacks, the particular opinion or opinions in dispute may be addressed. Often the defense expert will have inadequate understanding of the case and has not adequately prepared. Because he or she has generally not treated the plaintiff but only seen the plaintiff on an isolated, single occasion, the expert is personally unable to comment on the plaintiff’s condition either prior or subsequent to this isolated visit, including the acute stage, and will have no first-hand knowledge concerning the vast majority of plaintiff’s course of treatment. It may be that the expert has not reviewed all the medical records or seen actual X-rays or other diagnostic test results. In addition, often the medical expert will have no acquaintance or familiarity with the accident, the severity of the impact or trauma or the mechanics of the accident, all of which are important factors in determining whether, and the extent to which, the plaintiff was injured. In rendering opinions on disability, the doctor may have little or no knowledge of the plaintiff’s job requirements or the demands to which the plaintiff is exposed at work. Often the defense expert will have spent considerably more time conferring with defense counsel than examining either the plaintiff or his or her records. All of these areas are fertile ground for cross-examination.
In addition, the basis of the expert’s opinion can be discredited. Often the expert may have selected certain facts to rely on and discredited or ignored other facts, not necessarily based on some expert judgment; but rather, on his or her personal predilection or personal assessment of the plaintiff’s credibility (which is not the expert’s job; but rather, the jury’s). Such judgments should be exposed for what they are, not a matter of expert opinion; but rather, a matter of the expert’s assessment of the plaintiff’s credibility. The expert may concede that, if he hadn’t discredited or discarded certain facts, his opinion, in fact, would have been the same as plaintiff’s expert. Hypothetical questions can be utilized in this fashion to illustrate that the expert would have had an entirely different opinion had he not discarded or discredited certain facts present in the case. Furthermore, often the expert discounts or discredits facts arbitrarily or based on speculation. For example, the expert may summarily discount history or subjective complaints without either investigating the validity of the history or complaints, talking to others, reviewing the circumstances of the accident, etc.
Finally, the expert may be impeached by prior inconsistent statements made by him or her, either in writings in this particular case (such as a prior written report), in prior testimony given in the case (depositions), in prior publications addressing the general topic area. In addition, the witness may have given testimony in other proceedings inconsistent with his current testimony on the topic. Finally, in Massachusetts an expert can be impeached with a learned treatise. See, Comm. v. Snead. 413 Mass. 387 (1992).
There are several cardinal rules in any cross-examination. Always ask leading questions. Be brief,
ask simple questions, do not ask questions to which you do not know the answer, never permit the witness to explain, do not have the witness just repeat his direct testimony, and avoid the “one-too-many question”. These are Irving Unger’s “ten commandments” of cross-examination. Cross-examination must be focused on obtaining concessions or scoring points on two or three critical areas. Cross-examination should be based on a planned, predetermined line of attack with specific points to be made. It should go no further. Do not expect to either “destroy” the expert or have him prove your case. Be realistic. Start off and end on a strong point.
C. What You Must Do When Preparing Your Witnesses
Please see Appendix B.
D. Presentation of Evidence
The preparation and presentation of the plaintiff at trial can make or break the case. Jurors are to a large degree ultimately swayed by their emotional feelings for the plaintiff or against the defendant. They will find a reason not to award a plaintiff substantial damages whom they dislike. Accordingly, you must prepare your client to bring out his or her strengths and attributes that the jury can positively relate to. Jurors tend to be skeptical today of even the most objectively injured plaintiff. This natural skepticism and suspicion must be overcome, and it must be overcome through the credibility that you, as an attorney, convey and the positive strengths exuded by your client. You must personalize your client and get the jury to know and understand your client as well as you do.
The worst thing that you can do, or your client can do, is to attempt to overstate or oversell the case. This will immediately play into the jury’s natural distrust.
Let the plaintiff tell his or her story. The less prominent role counsel plays in presenting the witnesses, the more effective their testimony will generally be. Ask brief and simple questions and let the story tell itself. While the plaintiff must be informed about cross-examination, he or she should not volunteer information or argue with counsel, and should answer only the questions asked, and only those questions he or she fully understands. If the plaintiff understands the need to be honest and understands the theme and issues in the case, the plaintiff should be prepared for cross-examination.
Before the evidence is even presented, you, as plaintiff’s counsel, have the opportunity to sway the jury to your view of the case through the opening statement. There have been studies to show that, due to the effect of primacy, most of the jurors have made up their mind after the openings of counsel. The opening is obviously important in persuading the jury to your position.
The best openings tell a factual story. The lawyer presents the evidence as a storyteller would tell a story. Openings that do not tell a story but, rather, describe the technical nature of the case, the various witnesses that plaintiff expects to call in support of their case, the various stages of the proceedings, and respective roles of the players may be marginally informative, but are not persuasive.
The best openings are made without notes. The opening should be from the heart and convey to the jury the “theme” of the case. To the extent possible, it should personalize the plaintiff and depersonalize the defendant. The use of demonstrative aids with the court’s permission is encouraged.
It is important to anticipate and address, even in the opening, the negative evidence which you expect the defendants to introduce. If you know that this evidence will be presented, it is much less powerful coming from your own mouth than coming for the first time from the defendants. Although you must anticipate and take the sting out of this negative evidence, your opening should concentrate on the strengths of your case. Never oversell or overstate the case. If you do, the case has only one direction in which it can go from there, downhill. By overselling the case initially, you will leave yourself wide open at the argument that you made representations to the jury that you could not fulfill. As a result, you and your cause will lose all credibility.
While it is important to address in the opening the strengths of the case, it is sometimes helpful and advisable not to disclose all your strengths in the opening. This is the converse of overselling the case. In other words, undersell the case. Then when you present the evidence, you have actually given the jury something a little extra beyond what you have promised. The jury will be impressed with your lack of exaggeration; rather, your restraint will add to your credibility.
In opening, as in the other stages of the proceedings, the jury must feel an emotional bond to the case and understand and sympathize with the plaintiff. Creating this emotional nexus with the jury is much more important than attempting to address all the technical and legal issues that the case may present.
E. How to Best Demonstrate the Impact of Injuries
Generally, expert medical testimony will be necessary to establish the diagnosis, causation, disability and prognosis. Your medical expert will be the starting point for conveying to the jury exactly what injuries the plaintiff has suffered as a result of the accident. The symptoms that the plaintiff has and will endure as a result of these injuries, the extent to which these symptoms will interfere, or prevent, plaintiff’s ability to work, and the pain and suffering, both mental and physical, that the plaintiff has, and will continue to endure, as a result of his injuries can all be addressed by your medical expert. In addition to the expert’s testimony in this area, a report addressing these issues, which can be taken by the jury into the jury room as an exhibit, should be introduced pursuant to Mass. G.L. chapter 233, §79G.
In order to convey to the jury the impact that this accident has had on the plaintiff, you as the plaintiff’s attorney must have intimate knowledge of the plaintiff both before and after the accident. You should know the plaintiff’s educational, vocational, familial and employment background, and the impact that the injury has had in each of these areas. You should be armed with anecdotal experiences that can be conveyed to the jury which illustrate in human terms the impact which this injury has had on the plaintiff’s everyday functioning.
Jurors do not like “whiners” and inevitably there is the risk that, no matter how genuine the plaintiff’s injuries, when the plaintiff himself or herself describes these injuries and their impact on the plaintiff’s life, the plaintiff comes off as a “whiner” and will not gain the jury’s sympathy. It is, therefore, generally more effective to have other witnesses, including the plaintiff’s family, co-workers, therapist, care givers, or physicians testify to the impact which this injury has had on the plaintiff’s functioning. Again, this can be done through anecdotes which convey to the jury the humiliation and embarrassment as well as physical limitations that the plaintiff has had to endure.
In establishing damages, demonstrative evidence should be used liberally. Chalks, photos, X-rays, anatomical models, day-in-the-life films and other visual aids should all be considered.
Remind the client to prepare a daily diary of medical treatment, pain and disability so that, when it comes time to convey this information to the jury, it can be reconstructed. A calendar with overlays can often be used as a demonstrative aid chronicling the plaintiff’s course of treatment.
In Massachusetts, plaintiffs cannot argue “numbers” for an award of pain and suffering. Superior Court Rule 7.
In Massachusetts, as in most states, the defendant is liable if his negligence aggravates a pre-existing injury or disease or if his negligent conduct directly causes a second injury (for example, falling due to a weakened knee injured in an accident). The defendant is also liable for any complications or problems resulting from the plaintiff’s subsequent medical treatment necessitated due to his injuries, even complications from negligent medical treatment.
F. Motions, Post-Trial Issues and Appeals
One of the most important issues to keep in mind when objecting to evidence or making any motion is to do so in a fashion that preserves your client’s appellate rights. For example, unless certain motions are made during the course of trial, a party will be unable to challenge the sufficiency of the evidence to support a verdict on appeal. These rules are often confusing but must be meticulously observed in order to preserve appellate rights. Mass.R.Civ.P. 50(a) provides that a party may move for a directed verdict at the close of the evidence offered by an opponent. The rule states that a party may also move for a directed verdict at the close of all of the evidence. Keep in mind that this rule is not limited to defendants. The rule may be utilized by a plaintiff with respect to a counterclaim by defendants or even a defendant’s affirmative defense. The motion is designed to challenge the sufficiency of the evidence to raise a question of fact for the trier of fact. It asserts that as a matter of law the evidence is insufficient. It is imperative for a party to remember that if a motion for directed verdict at the close of the opponent’s evidence is denied, the party’s objection to the sufficiency of the evidence is waived if that party then introduces additional evidence. In order to preserve the issue, the party must then reassert his motion for directed verdict at the close of all of the evidence in order to preserve post trial and appellate remedies challenging the sufficiency of the evidence as a matter of law. See, Soares v. Stop & Shop Companies, Inc., 453 N.E.2d 478 (1983). To adequately preserve the issue of the sufficiency of the evidence to go to the trier of fact, generally the party must move for directed verdict at the close of all of the evidence and further should file a post-trial motion for judgment notwithstanding the verdict. See, Slate v. Bethlehem Steel Corp., 22 Mass.App. Ct. 641, 645 496 N.E.2d 449, 453 (1986). If the losing party has not moved for a directed verdict at the close of all of the evidence, Mass.R.Civ.P. 53(b) precludes 1) granting to that party a motion for judgment notwithstanding the verdict and 2) appellate review of the sufficiency of the evidence to support the verdict. See, Hatton v. Meade, 23 Mass.App. Ct. 356, 502 N.E. 2d 552, 555 (1987). Mass.R.Civ.P. 50(a) also requires that a party moving for a directed verdict state the specific reasons therefor. If the party does not state the specific reasons, then the trial court or appellate court may treat the motion as a nullity and preclude the granting of a motion for judgment notwithstanding the verdict or appellate review of the sufficiency of the evidence to support the verdict. See, Shafnacker v. Raymond James and Assocs., 425 Mass.724, 683 N.E.2d 662, 668 (1997). Because the erroneous granting of a motion for directed verdict would necessitate a retrial, the appellate courts in Massachusetts have suggested that the more appropriate procedure at trial is to deny a motion for directed verdict and later, if warranted, grant a motion notwithstanding the verdict. This avoids the re-trial of a case in the event that a motion for directed verdict was improperly granted and is reversed on appeal. See, Feltch v. General Rental Company, 383 Mass. 603, 421 N.E.2d 67, 73 (1981). What happens if a party moves for directed verdict at the close of all of the evidence, but fails to file a motion for judgment notwithstanding the verdict? By moving for a directed verdict at the close of all of the evidence, the party preserves his right to seek appellate review of the sufficiency of the evidence to support the verdict and may also raise the same issue with the trial judge by filing a motion for a new trial. However, in such circumstances, neither the trial court nor the appeals court has the authority to grant judgment in that party’s favor even if it finds that the motion for directed verdict should have been granted. Instead, the only available option is to order a new trial. See, Satcher v. Honda Motor Company, 52 F.3rd, 1311, 1315 (5th Cir. 1995). A party is not required to file a motion for directed verdict in order to later file a motion for a new trial. Hatton v. Meade, 23 Mass.App. Ct. 356, 502 N.E.2d 552, 555 (1987). A party moving for a new trial must state the specific grounds for the motion. See, Mass.R.Civ.P. 7(b)(1) and Rule 26 of the Rules of the Superior Court. The standards for granting a motion for directed verdict or motion for judgment notwithstanding the verdict and for granting a new trial are different. When considering a motion for directed verdict or motion for judgment notwithstanding the verdict, the trial judge must resolve all rational inferences in favor of, and accept as true, all evidence favorable to the party opposing the motion. The judge may direct a verdict or grant judgment only when there is no evidence, more than a mere scintilla, upon which a verdict for the other party could rest. Brown v. Metropolitan Transit Authority, 345 Mass. 636, 189 N.E. 2d 214 (1963). However, the trial judge applies a different standard when deciding a motion for new trial. A trial judge may set aside a verdict if “in his judgment it is so greatly against the weight of the evidence to suggest that it was the product of bias, misapprehension or prejudice. The fact that the jury could have found for the losing party does not make their verdict against the weight of the evidence or inconsistent with substantial justice”. The trial judge may, and indeed should, judge credibility and weigh conflicting evidence. The trial judge should not accept as true all of the evidence favorable to the jury prevailing party, nor need he resolve all rational inferences in that party’s favor. The decision to grant or deny a new trial rests within the discretion of the trial judge and that decision will not be disturbed on appeal unless there was an abuse of discretion. See, Jamgochian v. Dierker, 425 Mass. 565, 681 N.E.1180, 1184 (1997). It is also important to raise any issues concerning the inadequacy or excessiveness of the damages initially with the trial court or the issue may be waived on appeal. “Questions concerning inadequate or excessive damages are initially within the discretion of the trial judge and should ordinarily be raised by bringing a motion for a new trial. Where there is a failure to do so, we are not required to consider this issue on this appeal. The issue is waived.” Shafer v. Steel, 431 Mass. 365, 727 N.E. 2d 1140 (2000). Similarly, in order to challenge the sufficiency of the evidence on appeal, ordinarily the party must bring a motion for a new trial challenging the weight of the evidence before the trial court, assuming of course that the party has not otherwise raised the issue by a motion for judgment notwithstanding the verdict.