March 10th, 2015

The Fainting Lawyer and the Stress of the Courtroom Well

Hans Poppe, Louisville, KY

Almost two years ago I wrote of the lawyer who fainted dead away on the 10th day of a medical malpractice trial, where he was representing the patient. And the defendant doctor he’d sued then rushed forward to assist him. The story even had video.

The lawyer, Hans Poppe of Louisville, KY, was at the bench discussing the defendant’s motion for a mistrial when it happened. Poppe, it seemed, had inadvertently played an unedited version of a deposition that had a verboten discussion of medical malpractice liability insurance in it, instead of the edited version that excluded those questions.

That technoblunder resulted in a mistrial, and the insurance company, Kentuckiana Medical Reciprocal Risk Retention Group, then went after Poppe for the costs of the mistrial. The insurer sought a whopping 125K in costs and fees.

And now the issue has come to a conclusion, and hence this update.

In a decision dated February 13, 2015, Jefferson Circuit Court Judge Audra J. Eckerle supported Poppe and not the insurance company.

Why? First off, the insurance company provided no evidence that Poppe acted intentionally. How does one prove intent from mouse clicking the wrong file to play in the courtroom? By looking at both the actual evidence and mitigating circumstances.

And the judge saw that, upon realization that the wrong video had been played, and understanding the ramifications of it, she wrote that the Court saw:

“…the color pass from Poppe’s face when he realized what he had done. And, of course, it witnessed him faint when the fully gravity of his malfeasance hit him. His subsequent actions and apology seemed genuine. The Court accepts that, as well as the mitigating circumstances that Poppe has offered.”

What mitigating circumstances? This is the nuts and bolts of what it is to stand in the courtroom well, having waited years to get there, sorted through countless documents and potential exhibits, to walk the proverbial high wire without a net after enduring nights without sleep as you stress about the innumerable details of a trial:

Poppe’s misdeed occurred during the third week of a hotly disputed, highly contentious, multi-million dollar claim. Many lawyers battled. Discovery had consumed several years and several thousand documents. Witnesses and exhibits were legion. One error occurred. While it was colossal, it was singular. The Court cannot conclude, under the totality of the circumstances, that the conduct was anything other than a horrible mistake, brought on by fatigue, weariness, and exhaustion, and not by malice, egregiousness or bad faith.

That was it: one mistake. My reading of that is that Poppe’s own good reputation saved him. The matter had been contentious for sure — this was a trial after all — but he hadn’t done anything else to worry the judge.

Reputations matter. They may act, as they did here, as circumstantial evidence if that reputation was earned in front of the fact-finder.

She concluded:

Without question Poppe’s actions came at a cost to his opponents, and to himself, in a rather public and humiliating fashion. But Poppe did not impugn the integrity of the Court or undermine its authority.

The motion for sanctions was denied. And the case, by the way, settled.

June 4th, 2014

Order in the Court! (And a Judicial Brawl)

It isn’t often you hear about a judge engaging in fisticuffs with a lawyer appearing before him. Fights may happen in the legislatures of other countries, but it just doesn’t happen in an American courtroom with a jurist. Unless, I guess, that courtroom is in Florida where this happened.

As reported in Florida Today, in an incident in Brevard County, Judge John Murphy first said if he had a rock he would throw it at the lawyer and then it went quickly downhill from there, like kids on a playground:

Murphy and assistant public defender Andrew Weinstock exchanged words in a hearing Monday morning. The exchange escalated, and video records Murphy challenging Weinstock: “If you want to fight let’s go out back and I’ll just beat your ass.”

The men disappear off camera, to a hallway behind the judge’s seat, and loud banging and cursing can be heard. The judge emerges, out of breath, but the attorney does not.

The issue was a simple criminal matter where the judge wanted the public defender to waive the right to a speedy trial. He refused to waive and asked for a trial date.

Tempers flared with that very short interaction, the two of them charged to the back hallway, you can hear the words “Do you want to fuck with me?”, a scuffle takes place and the web blows up with stories about it. Just Google “Judge John Murphy and Andrew Weinstock.”

Here is the short video — I found a version without commercials:

https://www.youtube.com/watch?v=XWXCRnA35HU

Most websites that have covered the matter have excoriated Judge Murphy — who has now taken a leave of absence for anger management classes. This is rightfully so, as no judge should be challenging a lawyer to a fight, then leaving the bench with the person challenged, and then engaging in physical contact with him (and I think I’m safe with the pronoun “him.”)

But since Judge Murphy is such easy pickings for criticism, I’d like to focus on the conduct of the lawyer.

The problem isn’t with any legal argument that he made on behalf of his client. The rule of thumb is simple: Make your argument and then listen to the judge’s ruling. If you expect to lose, it is your job to make sure that it’s all on the record for an appellate court later on.

But what you can’t do, as the lawyer did here, is be belligerent and cutting off the judge when he says “sit down.” This doesn’t help the client. Not. One. Bit. And helping the client is the only reason he is standing in the courtroom well in the first place.

One of the first things a lawyer learns about life in the well of the courtroom is that when the judge speaks, you shut your mouth and listen. Because the judge is in charge, whether you like it or not.

What’s more, when the judge uttered the now-(in)famous words, “If you want to fight let’s go out back and I’ll just beat your ass,” the lawyer charges to the door to go “out back” before the judge is even finished with his rhetorical comment. It was like he was eager to go fight with the judge, either with words or otherwise.

Or at least I presume the judge’s comment was mere rhetorical nonsense based on the tone used, and not a real threat. But whether rhetorical or not, the lawyer’s job is to decline the offer, stay put in the courtroom, and protect the record for the client.

I’ve seen plenty of angry judges in the past, though perhaps not as many as my brethren in the criminal defense bar who carry the baggage of bad apples with them. And I’ve seen plenty of angry lawyers yelling at each other in depositions and in courthouses.

My own tactic for screaming lawyers, which I’ve used several times, is to respond by simply saying, “You’re screaming.” This usually pisses them off and they get louder. Eventually they cool down when they realize they are the only ones engaged that way and making asses of themselves.

When threatened, I have simply ignored the threat and continued doing what I was doing as if it never happened. (Unless the threat relates to a response to this blog, in which case I publish it).

If a judge is out of line, it is not the job of the lawyer to fight, but to make sure it is placed on the record.

The lawyer’s job when faced with a difficult circumstance is to hand the other person the rope with which to hang themselves. And protect the record.

This lawyer fouled up. Because it isn’t about him. It’s about the client. And the record. Which most definitely is not made in the hallway behind the bench.

Elsewhere:

Judicial thuggery: FL judge assaults public defender (A Public Defender)

The Heat of the Well (Simple Justice)

Florida Judge Allegedly Threatens Public Defender, Challenges Him To A Fight, And Then Attacks Him Outside Courtroom (Jonathan Turley)

Judge Beats Up Public Defender (Above the Law)

January 30th, 2014

But I Didn’t Write That Stuff on My Website!

Have you passed off your ethics and reputation to someone else lately?

The orthopedist was on the witness stand last week. He was well credentialed as defendant’s expert: top schools, top training, top position.

And then came plaintiff’s cross examination. The issue was the relationship between disc bulges and disc herniations. The doctor said there was a difference. And that bulges were the result of degeneration, otherwise known as the aging process.

(Some doctors are (in)famous for calling everything degeneration, because, you know, we start to degenerate when we are born.)

Then plaintiff’s attorney, Harlan Wittenstein, posed a general question to the doctor about bulges and herniations being the same. He denied it.

But Wittenstein, a seasoned trial attorney, just happened to have, oddly enough, a 24 x 36 blow up of the doctor’s web page where that assertion existed. He got it into evidence as a prior inconsistent statement. This was the website language:

A herniated disc, also called a bulging disc, ruptured disc or slipped disc, occurs when the inner core of the spinal disc pushes out through the outer layer of the disc.

…

Herniation describes an abnormality of the intervertebral disc that is also known as a “slipped,” “ruptured” or “bulging” disc.

The doctor kept saying, and I paraphrase here since I don’t have the transcript, ‘I see that its in my website, but its not true. I didn’t write it. Someone else writes the content.’

You know what happens when you outsource your marketing? Your ethics and reputation get outsourced also. And this applies to everyone, not just lawyers.

October 9th, 2013

When Normal Isn’t Normal (License for Sale?)

This is the story of a doctor who decided that “normal” isn’t what he learned over decades of practice, but what an insurance carrier tells him is normal. If you earn your bread in the well of the courtroom, this may be something you hadn’t considered before.

What, exactly, is “normal?” When it comes to medicine and testing someone’s range of motion, there are standards. If you test 1,000 people who are in the sweet part of life — not an infant or octogenarian — you will come up with numbers.

Some people, of course, are flexible and test higher. Some are not — either naturally or due to injury — and test lower. But that doesn’t change what normal is, and that is an important metric because, if you want to evaluate an injury, you need a yardstick to measure by.

But what does a doctor do if the insurance carrier that hired him to do a medical legal exam tells him to use different numbers to define a normal range of motion? You may think the answer is obvious — that the doctor would firmly tell the insurance company to go shit in a hat and that his license to practice medicine isn’t for sale like that.

My experience last month at trial, however, found an altogether different answer. Now it’s a rare day for me to use one of my own transcripts, but I spent a good part of the summer investigating and ripping into phony testimony, quickie medical exams, and phony signatures. I’ve also covered insurance company directives on how to leave out of the reports things that may be beneficial to the plaintiff.

Today, I explore a completely different method of chicanery.

The case was a multiple vehicle collision and “Krystal Doe” had shoulder, neck and back injuries. The doctor I was examining had done a medical-legal exam for the defense. And he confessed, when confronted, with having used the insurance carrier “normals” instead of his own knowledge, training and experience.

The defense, ironically, was that the plaintiff was exaggerating. There was exaggeration for sure, but it seemed to be coming from the medical expert that the defense had hired.

In order to see if this is a worthwhile course to pursue in other cases, of course, you need to first find a bunch of reports that the doctor has authored in other cases. Pre-trial investigation into the expert, with calls/solicitations to other practitioners in your area, is required, unless your firm is huge. If you have a local listserv, then sharing info on expert docs is a great use of it. Or, if there is a company around that sends representatives to attend these exams as witnesses (such as the ones I used for this investigation), they may be able to help locate reports.

First, the set-up to lock the doctor into his position about the importance of normal (I’ve yanked the names out and cleaned up the text):

Q: I think you testified that you wanted to find out what the patient has and then compare that to whats normal, right?

A: Yes.

Q: Because loss of range of motion of a limb, it’s a relative thing. It’s all relative to what’s normal, right?

A: Yes.

Q: And normal would be, unless you’re elderly or a small child I guess, normal would be the same for everybody, right? Normal is a standard?

A: No. No. Well, it is a standard, but it’s not the same for everyone.

Q: Would it be the same for a 25-year old and a 35-year old, people who are right in the sweet spot of life, so to speak?

A: Yes.

And with that, you can now first establish what his opinion is of “normal” for this individual that happens to be your client:

Q: What is cervical extension?

A: Putting your head back.

Q: Looking up at the ceiling, like that?

A: Yes.

Q: And what’s normal?

A: Thirty-five degrees.

Q: And what was it for Krystal Doe in this matter?

A: Twenty.

Q: So the difference between 20 and 35 degrees, that would be her loss, right?

A: If it’s valid.

Q: Now of course if normal was actually higher, then the injury would actually be more extreme. If it was, for example, 60 degrees, the difference between 20 and 60 is a lot more significant than between 20 and 35, right?

A: Yes.

Then return to reinforce the concept that “normal” doesn’t really change:

Q: And you as a physician, who does these medical-legal exams, you always use the same range of motion for all of the people who you’re examining. Again, assuming they’re within the sweet spot of life, you know, in their 20’s and 30’s, right?

A: There are standards.

Q: And one of the standards is that — you’re telling the members of the jury — is that 35 degrees is normal; is that right?

A: It’s one of the accepted norms, yes.

Q. Now we’re talking about range of motion of the cervical spine, otherwise known as the neck, right?

A: Yes.

Q: And extension you say normal is 35 degrees, right?

A: Yes.

Q: And you did your examination of this claimant, Krystal Doe, on March 5, 2010?

A: Yes.

Q: Okay. I assume that there hasn’t been a difference in what normal is from 2010 to 2012?

A: I assume that.

Then confront with his “opinion” in another case that he did a medical-legal exam for:

Q: Did you examine a patient known as Thomas Roe, on May 21, 2012?

A: I have no recollection.

[Hand him report]

Q: Was that your opinion, when you examined Thomas Roe, that normal was 60 degrees?

A: Yes.

Q: And it’s different for Krystal Doe, correct?

A: Yes.

Q: And Thomas Roe, he was only 34 years old at the time, and Krystal Doe, she was 26 years old at the time, correct?

A: I don’t know that offhand.

Q: Please feel free to … [gestures to report].

A: He was 34.

Now it has often been said that lawyers shouldn’t ask questions at trial that they don’t know the answer to. But that isn’t really true. In this case, the expert was dead in the water. (He was actually dead in the water before we started; he just didn’t know it yet. Now he does.)

So it’s OK to proceed when you don’t know what the answer is, because there isn’t any answer that can help him. So off we go looking for the excuse for why he is exaggerating the loss of range of motion by using different “normals”:

Q: So there should be no difference in the normal range of motion for an individual who’s 26 and another one who’s 34?

A: Actually, that’s not true. This examination was done for a company that uses a different standard for range of motion testing.

Q: Don’t you use your own opinions as to what normal range of motion is?

A: I do, but if I’m employed by them to do an examination, I have to use their standards.

Q: So you then will take a standard that you know isn’t accurate, and use it in a medical-legal context?

A: No.

Q: Is that your testimony?

A: No. That’s not my testimony. At the end of my report, all of these reports, I state clearly that the range of motion testing is based on the American Academy of Orthopedic Surgeon’s standards, but there are differences with body habitus, with age, with activities. I state that clearly, so it’s a very subjective exam, and the 60 degrees here conforms to what this carrier says is normal. That’s not what I think is normal.

Q: And you used it anyway?

A: I did.

Ouch. The insurance carrier is paying for the exam, so he uses the carrier’s definition of normal. The only thing to do now, is bang on the drum a bit so the jury understand what has just happened, and move on to other body parts that might also have differing “normal” ranges of motion:

Q: You examined the person the way it is that you were told to examine the person, not the way your medical experience told you to examine the person?

A: No. They didn’t tell me to examine the patient any differently. They told me what their norms were.

Q: By the way, for shoulder abduction, that’s where you bring the arm up and point up at the sky?

A: Right.

Q: For Thomas Roe, it was your opinion that normal abduction was 180 degrees?

A: No. The norm, yes; 180.

Q: And was it your opinion that for Krystal Roe it was 160 degrees, there was a difference?

A: Yes.

Q: And when you examined her, you found that she only had 80 degrees, right?

A: Right.

Q: And the difference between 80 and 160, is not as much as the difference between 80 and 180, right?

A: Right.

Q: And this diminished your findings with respect to Krystal Roe in examining her range of motion and forming your opinion, didn’t it?

A: It diminished my findings?

Q: It diminished it because your normal was different, it was only 160 instead of 180?

A: I think that is the norm, 160.

Q: Was it your opinion in examining Thomas Roe that it was 180?

A: That’s what this carrier used as their normal.

So, the long and short of it is, do the ground work before trial by obtaining other reports that the defense medical examiner has done, and you may be surprised that “normal” may be a fluctuating concept based upon what the insurance carrier tells the doctor is normal in order to minimize the actual loss of the claimant.

How such doctors sleep at night is beyond me, though I suppose his $7,000 fee probably helped.

September 23rd, 2013

Apple, Expectations and Trial Strategy

A week ago Apple unveiled its new iPhone 5s and some Apple-bashers had a field day criticizing it for only being incrementally better than the one released a year earlier, the iPhone 5.

And this morning Apple released blockbuster sales of over 9 million iPhones sold since the actual release three days ago.

Why the sharp difference between initial reviews and blockbuster sales. And why is this important to jury trials?

Because those that were bashing were comparing it to the model released just one year ago. But most folks buy two-year contracts when they get an iPhone. Thus, the target audience for the phones was those that bought phones two years or more ago, not the few who want to upgrade every year.

And since there is a huge difference between the one two years ago and the just released, it has tapped a substantial market.

This is all about figuring out where to set the comparison bar when deciding if something is good or bad.

If at trial you want to compare an injury to normal, you have to first figure out what that normal is and set that bar firmly in place.

Last week at trial, a defense expert decided to move the “normal” bar on the range of motion, so that when he showed plaintiff’s injuries to the jury, they didn’t look as bad as they actually were. (I hope to blog on that testimony in the future.)

Firmly forcing a witness to declare what normal is, and locking the person in who is going to give that opinion, is a critical and often overlooked piece of the puzzle that constitutes evidence. It is all about expectation and doing a proper comparison.

My two rupees on your trial tip for the day.