Yesterday’s post dealt with the dueling orthopedists. Today we resume with the defense case:

Saturday, June 21st. I’m making pancakes for my kids, some with the Turkewitz Family Secret Ingredient.* But I’m thinking about the defendants’ two experts on Monday. The brain refuses to shut down. My 8 year-old daughter comes up to me to make fart noises on my calf. I try hard not to think of summation comments I’ll make regarding yesterday’s witness.

Sunday, June 22nd — In the home office at night, I’m making revisions to my cross examination outlines and doing more research on precluding surprise testimony from a party. But my printer runs out of ink. Crap. OK, Abe Lincoln didn‘t have a printer at home nor did my dad, nor did any trial attorney that came between them. I’ll make do and go longhand.

Monday, June 23rd— To hell with longhand. Early morning run to Staples for ink cartridge. I’m not my dad, and I’m certainly not Lincoln.

I pull my two trial bags on the wheelie thing up the hill to the courthouse. The trial bags were my father’s. He gave them to me when he retired and I use them for good luck. The one pictured here is at least 50 years old, and still has T & T stenciled in gold on it from the time of Turkewitz & Tessel, a firm he started with the kid he sat next to at Brooklyn Law. If trial bags could talk they would rivet you with the stories they held. Dad calls me every night to find out what happened in court. I suggest, for the umpteenth time, that he come out of retirement and make a court appearance for me here and there. I offer to put him on my letterhead — Turkewitz & Father — and for the umpteenth time he declines.

Defendants’ first witness is another orthopedist, who did a defense medical exam on my client two years ago and says she was only mildly disabled. He claims she was doing well and could go back to work, and his exam is at odds not only with her treating orthopedist, but with subsequent defense medical exams two years later that call her “moderately” and “markedly” disabled. He has never seen the records or x-rays of her treating physician. Either he has deliberately diminished her disabilities for this suit or my client’s condition has worsened. That makes this witness a win-win for me.

Defendants’ second expert is a rehabilitation expert who testifies that the plaintiff can go back to work doing sedentary work. She can do this, he says, despite the fact that she sleeps poorly due to pain, and thus has problems during the day, that she has pain on sitting, may need a hip replacement in the future, needs to be retrained, moves slowly due to her arthritic hip, and is in her mid-60s. I’m sure there are plenty of companies out there itching to hire such a person, but this expert doesn‘t name any in his report. The expert does, however, appear in a wheelchair. Which might account for why he was brought in from Pennsylvania for the trial instead of using a local rehabilitation expert. Assuming one could be found.

At the end of the day the defendants ask the court that, if they chose not to produce their neurology expert — the one that said the client was “markedly disabled” — that they not get a very damaging missing witness charge. Under that charge, the jury is permitted to draw an inference that the testimony wouldn‘t be helpful to the side that was supposed to call him. I oppose it for obvious reasons, given that he is under their control, would be expected to produce him, and that his opinion differs from the defense orthopedist. The judge rules in favor of the defense. Nuts.

Next up — Summation and charge tomorrow. And…?
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* You’re reading the footnote to a law blog about a pancake recipe? Please don’t let the boss catch you.
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Addendum — The full series of posts:

• Trial Blog, Part 1 (Bronx Trial Assignment Part)

• Trial Blog, Part 2 (Jury Selection Starts)

• Trial Blog, Part 3 (We Finish Jury Selection)

• Trial Blog, Part 4 (The Trial Starts)

• Trial Blog, Part 5 (Dueling Orthopedists)

• Trial Blog, Part 6 (Defense Experts)

• Trial Blog, Part 7 (Summation and Verdict)

Synopsis of the case at my firm’s website

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With my first four witnesses now off the stand, we turn to the main orthopedic witnesses:

Thursday, June 19th. Arrive at court for 11:30 charge conference. Bad news. Yanks are playing a day game. I park in my usual lot 50 yards from the ball yard. I have no doubt the game will end when court does. My two trial bags on the wheelie are now accompanied by two exhibit bags slung over my shoulder for a medical illustration and a model of the spine, pelvis and hips.

The plaintiff’s treating orthopedist takes the stand. He’s seen her about 20 times. He’s my last witness. Out come the spine and the medical illustration that I commissioned from Anatomical Justice, shown here, displaying the before and after of plaintiff’s hip surgery. The doctor comes down off the witness stand for an anatomy lesson and tells the jury what happened to his patient’s body. I disappear into a place behind the jury and ask him to explain what the heck all those bones are, what happened in this accident, how the woman was put back together, and what her future holds. Nothing resembling legalese crosses my lips.

In a proper direct exam, the lawyer should barely be noticed. The entire focus must be on the witness. My cross exam style is, of course, quite different. A proper cross has the lawyer “testifying” and the witness simply agreeing, or disagreeing. Unless, of course, one decides to break those rules. Which I might do tomorrow for defendant’s orthopedist.

Defense tries in cross-exam to claim that her back injuries are pre-existing by using records from several years back. Their problem is that their own experts don’t agree in their reports that any of her complaints were pre-existing. They can’t. Those records were never given to them.

My case is now in. I relax a bit. Maybe I’ll even eat. Maybe.

I head back down the hill to the parking lot. The streets are filled with blue Yankee shirts. The strains of Sinatra singing New York, New York wafts out of the stadium, filling the Bronx air. The game has just ended. The 20-minute drive home will take an hour.

Friday, June 20th. We have only one witness again today, a defense orthopedist. His report discusses only the medical records from 2005 and his examination in March of 2008. He has not seen any pre-accident records. He has not seen any films from 2006 or 2007 regarding the plaintiff’s post traumatic arthritis of the hip. He has not seen the records of her current treating orthopedist for the past two years. Testimony should be quick. I do not anticipate the need to impeach him (too much), since he hasn’t seen the important records.

But it won’t be easy. Because there he is, standing in the courtroom by one of the big picture windows looking at films he has never seen before. Or rendered an opinion on before.

The jury comes in and he takes the stand and he starts to talk about all the records and x-rays that were not included in his report. I object. The judge lets him go anyway saying he can discuss things that are in evidence. It is now trial by ambush. There is no report to work from. There is no deposition of him (not permitted of experts in New York). And no way to know what will come out of his mouth. The jury can see my evident displeasure.

The defense has been created during trial. I will comment on this in summation. (The reader would do well to note here, however, that neither of the defense trial attorneys were responsible for the day-to-day work-up of the case. These postings are intended to give the day-to-day flavor of what a trial is about and the types of decisions that need to be made, not criticize opposing counsel, who were both quite experienced and able.)

The doctor testifies, contrary to her treating physician, that based on the films he saw by the big picture window that very morning that there is no post-traumatic arthritis. He says that, contrary to her treating physician, that a hip replacement will not be needed in the future. I need to modify my cross-exam.

I start by using him as my own expert. I’ll get some good stuff first before I impeach him. I pick up the skeletal model and, while I stand directly in front of him and the jury, walk him through the shattering of the acetabulum — that’s the socket part of the hip’s ball-and-socket joint — in the accident when the femur was rammed through it. With my hands on the model I pull the femur out of the socket and push it back to the place it was dislocated and ask him if he agrees on the mechanism of injury, and the risks ahead due to this trauma. I walk him through the two reductions of the dislocation and the repair of the fracture and the risks of post-traumatic arthritis. He asks for the spine I am holding and I assent to let him use it, contrary to common cross-examination principles. I’m breaking a rule because I am, at this point, using him as my own expert to describe the uncontested initial trauma.

I stop lobbing softballs to the witness about the nature of her initial trauma and surgery when it comes time to discuss her current condition. I cross him on the fact that the opinion of “moderate disability” that he gave in his report — that he now claimed in court was based in part on pre-existing issues — couldn’t possibly have been the basis of his opinion since he hadn’t seen those records when he wrote his report. He is forced to modify his opinion and claim that he was only talking in the abstract and not about this patient. I don’t think the jury is fooled, but I won’t know until the verdict.

I force him to concede she has current disability due to the hip fracture, that she can’t do her job because of it, and force him to concede she is limited in her ability to do household chores.

A courtroom observer, impartial, tells me that cross went well. Unfortunately, she isn’t on my jury.

I go to sleep with a notepad by my bed for the bazillion thoughts that are running though my mind about the trial.

Query: Do hourly lawyers get to bill for the time that they obsess and think and strategize about a trial when they are home with the family?

Next Up: Two additional defense witnesses. Stay tuned.

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Addendum — The full series of posts:

• Trial Blog, Part 1 (Bronx Trial Assignment Part)

• Trial Blog, Part 2 (Jury Selection Starts)

• Trial Blog, Part 3 (We Finish Jury Selection)

• Trial Blog, Part 4 (The Trial Starts)

• Trial Blog, Part 5 (Dueling Orthopedists)

• Trial Blog, Part 6 (Defense Experts)

• • Trial Blog, Part 7 (Summation and Verdict)

Synopsis of the case at my firm’s website

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We finished jury selection Friday, and today we open…

Tuesday June 17th. The action against the host vehicle, the one the plaintiff was in, settles for the small policy limits. This is now a damages only trial against the car that hit my client from behind.

The judge gives an opening charge to the jury along with a small historical lesson about the Bronx. We open, and I tell her story, starting from the middle. Because the accident is not where her life started, but where it changed. I start with the change. Then weave back and forth between past and present.

The first witness is the driver of the car my client was in, who testifies about the plaintiff’s night before the accident, the totaling of his car on the highway and the extrication of my client from the car with the jaws of life.

The plaintiff’s daughter testifies about returning to New York to help her mother, the physical pain and emotional damage to her that she observed, and her rehabilitation.

Plaintiff testifies about her life before the accident, the accident and the problems she has faced.

The judge rules that a videotape we made that demonstrates the difficulties she had five months after the accident — some refer to these as Day-In-The-Life videos — will not be allowed into evidence. He says it is too prone to manipulation and that outweighs its probative value. I argue that these have been used for decades, and that he can’t exercise his discretion on this particular tape without actually looking at it. I lose the argument. Trying to see the glass as half-full, another lawyer tells me that the judge may simply be looking to cut down any appealable issues for the defendants. That is small consolation to me.

Leaving court, the Yankee fans are starting to arrive for tonight’s game, two blocks away.

So this is the basic summary of trial: Spend day in court. Prepare for next day at night. Obsess in free time.

The headline news is of gay marriages in California. I assume the legal blogosphere is generating a gazillion pixels on the subject. I haven’t checked my RSS feed reader in many days.

Wednesday, June 18th. My vocational economist takes the stand to discuss the loss to the plaintiff due to her difficulty/inability in doing household chores such as cleaning, shopping and cooking. He places a value on her time for these items. That which she can still do takes much longer. Her time is compensable, as is the value of finding someone to do these tasks. Defense crosses him on the fact that friends and neighbors help out. I sit there and wonder: And therefore the defendants are not responsible? She must go begging for help for the rest of her days? I drop some notes into my trial book for summation.

Since it’s a short day I drop into the courtroom next door and spend 20 minutes watching a friend trying a case with a brain injury. Much time is spent on establishing the issue of a car’s title. Not particularly exciting.

I head home and use the home office to prepare for Thursday, a pre-charge conference with the judge and my orthopedic witness.

At dinner I pick at my food and pretend to be engaged with my children while thoughts of cross-examinations, evidentiary issues, summations, jury charges and whatnot fill my brain. My wife is not fooled, having seen this routine many times before. I try to work right after dinner but a fierce thunderstorm forces me to shut down the computer and spend more time with the kids. And that is a good thing. For all of us. Storm passes, kids get tucked into bed, and I return to the home office. A better printer and a small copy machine would be nice to have.

Next up, the orthopedists take the stand.

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Addendum — The full series of posts:

• Trial Blog, Part 1 (Bronx Trial Assignment Part)

• Trial Blog, Part 2 (Jury Selection Starts)

• Trial Blog, Part 3 (We Finish Jury Selection)

• Trial Blog, Part 4 (The Trial Starts)

• Trial Blog, Part 5 (Dueling Orthopedists)

• Trial Blog, Part 6 (Defense Experts)

• Trial Blog, Part 7 (Summation and Verdict)

Synopsis of the case at my firm’s website.