June 27th, 2008
Is waterboarding torture, or is it now art?
And why, exactly, are 50 lawyers wanted for this exhibit?
“We felt like lawyers would yield an interesting result as they are most qualified to impartially describe the experience”
According to the press release at the web site linked below, the waterboarding will take place for all of 5 seconds. Somehow, I don’t think 5 seconds is what the CIA has in mind when they do it.
The details are here in New York Magazine blog.
June 27th, 2008
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:
Synopsis of the case at my firm’s website
June 26th, 2008
I’ve been scanning some of the 2,000 posts that accumulated in my RSS feed reader while on trial and these jumped out of interest:
So that’s how tort “reform” gets done (Justinian Lane @ TortDeform): regarding the very wide disparity in money spent by big business and consumer groups for lobbying efforts. Coverage of a NYT article on the subject at TortBurger;
New York Chief Justice Judith Kaye to be leaving? (Scott Greenfield @ Simple Justice);
Clifford Shoemaker gets sanctioned (Seidel@ Neurodiversity). He is the attorney that issued an extraordinarily abusive subpoena to Kathleen Seidel, and she fought back and won. The court wasn’t kind to him. (Previously here: Abuse of Process: Blogger, Unrelated to Action, Hit With Subpoena; and Subponea on Blogger Seidel Quashed; Attorney Shoemaker May Be Sanctioned);
George Carlin is dead. He didn’t pass away (Randazza @ The Legal Satyricon);
The first ever thong lawsuit? (Day @ Day on Torts);
New York’s medical disciplinary system makes the news (Scheurman @ TortsProf);
In voir dire, does a bumper sticker tell you anything? (Reed @ Deliberations);
So that’s what happened in the world of personal injury law while I was on trial (Schuelke, Personal Injury Law Round-Up, #67)
So that’s what happened in the world of law while I was on trial (Blawg Review #165 at French-law.net)
What impact do medical malpractice caps have? (Miller @ Maryland Injury Law);
And that is one hell of a hailstorm (Coffield @ Health Care Law Blog)
June 26th, 2008
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:
June 25th, 2008
An issue has arisen in recent years about the taxability of personal injury settlements when a confidentiality agreement is reached. Generally, such settlements are not taxable pursuant to IRS section 104(a)(2). But the issue reared its head due to a settlement involving Dennis Rodman back in Amos v. Commissioner of Internal Revenue when Rodman kicked Amos, a camerman, in the groin during a Chicago Bulls game. (Amos-v-Commissioner.pdf)
Prior to suit they reached a $200,000 settlement. But part of that settlement included a confidentiality clause. So the IRS brought an action claiming that part of the settlement was taxable. And the Tax Court agreed, ruling in 2003 that while the proceeds for the personal injury portion were not taxable, that any part of the money that was in exchange for the confidentiality agreement would be. The court wrote that “if a settlement agreement lacks express language stating what the amount paid pursuant to that agreement was to settle, the intent of the payor is critical to that determination.” In the end, the court ruled that Amos was to be taxed on $80,000 of the settlement.
And so that opened up any personal injury settlement that includes a confidentiality clause to potential scrutiny. So what’s a lawyer to do? (Question courtesy of Drug and Device Blog.)
While others have suggested placing a number, perhaps $1, in the agreement on the value of the confidentiality agreement — part of the “express agreement stating what the amount paid pursuant to that agreement was to settle” — I think an issue still lurks. It seems quite possible — and I say this without much in the way of knowledge of tax law — that the IRS would want to go to the merits and look at the actual injuries and compare that to the amount received if they believed a great disparity existed between injuries and recovery. It seems that a $5,000 injury that resulted in a $100,000 settlement, for example, would raise eyebrows regardless of what the legal papers claim.
But the problem really exists if it is simply the defendant that seeks the agreement, as has traditionally been the case. The defendant doesn’t want to be seen as a mark to other potential litigants.
The internet age and issues of privacy and identity theft, however, shift that dynamic. Would a plaintiff receiving a large award really want the information public? Likely not. In fact, at my firm’s web site where I discuss case resolutions I have stripped out the names of my clients for just this reason. Those recoveries are no one’s business but the parties themselves.
And so the solution for an attorney to explore with the settling client — I’m not a tax lawyer and this is not tax advice, disclaimer, disclaimer, yada, yada, yada — is actually somewhat simple: Both sides are seeking that confidentiality agreement. The consideration for the confidentiality agreement is the mutual promise for confidentiality. Plaintiff, simply put, doesn’t wish to alert potential thieves and hustlers that such funds exist. This is a real issue.
(Addendum: The preceding “simple” analysis may well be wrong, as the IRS might still say it has value and tax it.)
Along these same lines, an attorney should be wary of signing any agreement that says the funds are being paid to dispose of a claim was dubious, frivolous, meritless or any such other claptrap. Incredibly, I have seen releases written that way. (“But that’s our standard release, everyone signs them!”) Signing such a document could be seen as an admission that the amount paid was for something other than personal injury, and therefore subject the client to taxation.
(Second Addendum): The safest course of action may be to take back a Hold Harmless agreement from the defendant. That is to say, if they wish to have the confidentiality agreement, then they must also agree to defend and indemnify the plaintiff if the IRS comes calling, and claiming that there was value in the confidentiality agreement.
And yes, I did have fun doing an image search for Dennis Rodman.
See also: More On Taxation of Confidentiality Agreements (Drug and Device)