March 24th, 2010

Can Jury Consider All Damages, if Only Some Meet the No-Fault Threshold?

Today’s case solves a quirk in New York’s No-Fault law regarding the “serious injury” threshold that must be met in order to bring a lawsuit. That threshold was established in the ’70s in order to cut back on the number of personal injury cases that resulted from car accidents.

So here’s the question: If the threshold is met under one category of injury, can other categories of injuries be considered by the jury? For example, if the jury finds the threshold has been met with a fracture of the finger (#4 below) but that the back injuries didn’t qualify as a “Significant limitation of use of a body function or system” (# 8 below), can the back injuries be considered by the jury in assessing damages?

These are the categories that the legislature says define “serious injury” under New York’s miserable No-Fault law:

A personal injury that results in death;
Dismemberment;
A significant disfigurement;
A fracture;
The loss of a fetus;
Permanent loss of use of a body organ, member, function or system;
Permanent consequential limitation of use of a body organ or member;
Significant limitation of use of a body function or system; or
A medically determined injury or impairment of a non- permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment”.

This issue arose in Rubin v. SMS Taxi, decided yesterday by the Appellate Division (First Department). Defendant had moved for summary judgment claiming that the plaintiff didn’t meet the No-Fault threshold. The lower court granted the motion for all injuries except for the significant disfigurement that the plaintiff suffered. The court then denied plaintiff’s motion for clarification or reconsideration,wherein he wanted to know if, having met threshold in one category, he could proceed to argue all the injuries.

And the First Department reversed with respect to the motion to clarify, and held unambiguously that

“once a jury determines plaintiff has met the threshold for serious injury, the jury may award damages for all of plaintiff’s injuries causally related to the accident, even those not meeting the serious injury threshold.”

In its decision, the court also cited to a Second Department case (Marte v. New York City Transit Auth.) as support.

Without question, it’s an important principle to remember for all practitioners: You only need to prove one of the categories falls within the serious injury threshold to then proceed for an assessment for all of the injuries that were causally related to the accident.

April 22nd, 2009

Susan Boyle’s Voice, and the Lessons for Trial Attorneys

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

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

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

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

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

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

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

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

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

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

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

Links to this post:

susan boyle in the eye of the beholder
susan boyle 3450613461_c067eb4ee2_m you’ve seen it, right? tens of millions of people have. it’s the video of plain, middle-aged susan boyle, stunning the “britain’s got talent” judges and then the world with her lovely voice. …

posted by Anne Reed @ April 23, 2009 11:11 PM

March 13th, 2009

The Cross-Examination of Jim Cramer

Around the country, Jon Stewart is winning plaudits for his devastating debate with Jim Cramer on The Daily Show, after a week of ripping CNBC up, down and sideways for their utter failure to see the Great Recession coming on, while claiming to be the experts of the financial world. Stewart is winning those plaudits (and perhaps an Emmy?) not just for the interview, but for a week-long skewering of financial talking heads who pretend to know the future of the markets.

But what I saw was not just good journalism — with the fake journalist giving a crushing lesson to the media on how it is supposed to be done — but a devastating cross-examination.

Stewart used the time-honored “prior inconsistent statement” to repeatedly compare Cramer’s statements today with ones he’s made in years gone by. In the courtroom, we usually do the confrontation with deposition transcripts, first nailing down the testimony today and then whipping out the old transcript to read. In the case of medical-blogger Flea, it was done with a prior inconsistent statement from his blog.

Stewart did it with video, and it was nothing less than brilliant. The sharp, twisting knife of a comedian will no doubt have a profound effect on the way business news gets reported on television in the future. While he was dead serious last night, it was certainly his prior comedic torching of Cramer and CNBC that set the stage.

When Stewart gets his Emmy for it, it will be well-earned.

P.T. Barnum Was Wrong On Sarah Palin

The Sarah Palin debacle contains a lesson for trial lawyers. It’s a lesson on playing a trial straight, without shtick. And a lesson that runs contrary to what legendary showman P.T. Barnum was alleged to have said:

Nobody ever went broke underestimating the intelligence of the American people.

Today a New York Times / CBS pol shows that the public doesn’t believe Sarah Palin is ready for the job. According to this NYT story (Growing Doubts on Palin Take a Toll, Poll Finds):

All told, 59 percent of voters surveyed said Ms. Palin was not prepared for the job, up nine percentage points since the beginning of the month. Nearly a third of voters polled said the vice-presidential selection would be a major factor influencing their vote for president, and those voters broadly favor Senator Barack Obama, the Democratic nominee.

And according to this CBS story:

A third of voters saying the vice presidential nominees will factor in their vote, and here the Democrats have the edge: While 74 percent say Democratic vice presidential nominee Joe Biden is prepared to be vice president, just 35 percent say GOP counterpart Sarah Palin is prepared for the job.

The lesson to draw from this mess? Argue the evidence. Jurors will feel insulted if you do otherwise. (Of course, this doesn’t necessarily explain how and why voters did what they did in other elections.)

The quote, by the way, most likely wasn’t Barnum’s, but belonged to H. L. Mencken. If you decide you want to believe what you read on the Internet.

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.