Category Archives: Inside The Well

 

September 24th, 2010

Walking the High Wire At Trial (Defendant pulls offer with jury out, but verdict not what they thought…)

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

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

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

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

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

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

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

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

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

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

 

June 8th, 2009

What It’s Like To Lose

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Links to this post:

POSTS WILL RESUME SHORTLY
It seems like I’ve been saying that alot. I’ve been busy. For some reason these past few months have been full of assignments, projects, and two line emails that require two hours of work. Court has been especially busy as well. …
posted by . @ June 13, 2009 5:01 PM

 

October 7th, 2008

Lawyer Caught Coaching Witness In the Courtroom (Ted Stevens Trial)

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

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

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

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

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

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

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

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

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

See also:

 

February 12th, 2008

How to Fool a Jury (Is It Insurance Fraud?)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

January 24th, 2008

Straying From Your Field of Practice

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

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

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

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

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

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

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

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

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

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

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

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