January 28th, 2008
I’m back from a short vacation and I find once again how quickly blog postings can fill up an RSS reader and how many emails can accumulate.
Thankfully, Brooks Schuelke has a round-up of personal injury posts to get me started with the blogs. It’s times like this when round-ups of all sorts are invaluable for keeping up.
January 24th, 2008
January 24th, 2008
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.
January 22nd, 2008
Over at the Drug and Device Blog, Beck/Herrmann have a theory that they want tested with a scientific study:
It strikes us that the plaintiffs in pharmaceutical product liability cases are always striking the educated jurors.
They go on to state that if a health care professional, who they’d love to keep on the jury, survived the preliminary screening, then the plaintiff inevitably strikes that person. Their sense is that “plaintiffs typically prefer less-educated juries, and, in particular, routinely strike health care professionals from serving on juries in pharmaceutical and medical device product liability cases.”
While most of my experience is in the medical malpractice field, that is close enough for me to answer, and it comes from someone who has picked a few dozen medical malpractice juries in addition to picking juries and trying cases in many other personal injury matters.
So here is my take on jury selection, New York style. While the rules change from county to county, one of the “popular” methods is called the “struck method” used in New York County in which 30 jurors are questioned for an hour. Yes, a whole hour for 30 people. That gives you all of two minutes per person, inclusive of your canned spiel. The other side goes, then you step out of the room to strike people from the entire panel. Each side gets just three peremptory challenges, where no cause needs to be identified. The first six left after all challenges (for cause or not) become jurors, and the next two to four are alternates.
As you can clearly see, this is not exactly an atmosphere conducive to delving deep into backgrounds. When I get a doctor, nurse or other medical practitioner, I approach it like this:
While they answer you watch the body language to see if they are comfortable or not with the issue. Some are, some aren’t. (I asked the same question, by the way, to Dr. Rob “Flea” Lindeman in a recent interview.) Many medical workers see bad things at work and know that all is not peachy with their profession. Simply being in the profession doesn’t disqualify them.
If you have one that looks uncomfortable, you then compare that person to the blue collar guy sitting there with his arms folded across his chest scowling at you and the very idea of your complaining client, but claiming he can be fair. I’ll take the waffling doctor over the scowling steelworker every day of the week.
Jury selection isn’t really about selecting individuals you like, but trying to find the few people in the room trying to subvert the process due to their prejudices without telling you, and getting rid of them. Anne Reed and Scott Greenfield both addressed this issue recently in discussing the limitations of the science (or voodoo) of jury selection.
Beck/Herrmann over at Drug and Device seek out empirical evidence to support their thesis that plaintiffs simply bounce doctors or the educated without delving further, but it escapes me as to how such a test could even be created, because jurors are necessarily measured only against the person next to them. That guy with the scowl doesn’t appear in empirical data in any manner, shape or form.
My gold standard is The Turkewitz Beer Test: Whether I would be comfortable sitting down and having a beer with the person and talking. If the answer is no, I try to get rid of them. Human beings are far too complex to pigeonhole based solely on occupation or eduction.
See also from this blog:
January 18th, 2008
It was hard to miss the stories this week on a lawsuit about a forced rectal exam in an emergency room. The blogospheric responses to it were, in a word, extraordinary.
The story itself is certainly odd, but not complex: Brian Persaud walks into a New York hospital with a head injury over the brow that needs eight stitches, and the ER staff then forces him to have a rectal exam against his will. Words are exchanged, he physically lashes out, he’s sedated, apparently placed on a ventilator (?) and arrested. Charges were dismissed, but he sues the hospital, and in the process raises issues of ethics, informed consent, medical necessity and assault.
Now here’s the striking part, and it jumped out at me when I first saw the story at Kevin, M.D. Kevin’s easy to pick on because he has a great blog even though I often disagree with him, so when I challenge his opinion as being out to lunch, it comes with the caveat that I still routinely check his site for stories and opinions.
So here’s the part that jumped at me: He immediately called it a “frivolous lawsuit.” And not just him, but many, many others in the comments couldn’t wait to rush to judgment. Based solely on an article that first appeared in a NY Times blog.
The patient’s ability to give consent for the procedure is, of course, dependent on the actual facts. And given the commotion this must have caused — the man was, after all, restrained and arrested — you know there are many witnesses to the man’s ability to make rational consent decisions. But have those that leaped to the conclusion that the case is frivolous actually seen or heard any witnesses? Well, of course not. The opinion offered on the merits has nothing to do with the actual facts, but on the political bent of the people offering up their opinions. (Volokh has 114 comments already.)
This reminds me, to some degree, of the criminal trial surrounding New York subway gunman Bernhard Goetz when he shot four teens on a subway in 1984 that he said were threatening him. It reminds me of that because, when the trial was held, there were competing demonstrators outside the court. One side wanted to crucify him as a racist and the other side wanted to hail him as a hero. And they all had one thing in common: Not a single one of them was actually in the subway to see what happened, nor had the evidence even been fully presented in court.
The rectal exam case makes for an interesting legal Rorschach test, just as the Goetz case had.