Tips for Attorneys
Judges don’t like it when us attorneys can’t stop bickering. They are irritated by having to deal with our exchanges of snipes, digs and downright insults.
Last month after a trial ended, two jurors followed me down to the courthouse lobby. They wanted to talk about what happened. Both commented on how impressed they were that the attorneys acted in a civil manner. Sure we disagreed with each other and objected and there were tense moments. But we were not overly disrespectful like the lawyers they saw on television. They appreciated that. I thought this was an interesting comment because I could not stand the lead defense attorney. Every time he opened his mouth I could feel my teeth clench.
I’m not saying we shouldn’t fight when we need to. Our job as lawyers is not to make a judge happy. But there is merit to the old proverb that we should pick our battles wisely.
Here are some strategies on how to avoid being drawn into petty fights before judge or jury:
- Learn how to maintain a calm yoga like façade
- Master the art of not rolling eyes
- Bite tongue
- Be physically still – don’t ruffle papers, drum with pen, or slam iPad on table
- Don’t use counsel’s first name
- Slow down when speaking
- Slow down when breathing
- Do not interrupt
- Don’t try to defend everything
- Don’t try to justify everything
- Have faith in the truth
- Wait your turn
- When the other side takes your turn wait for your next turn
- You don’t need to be overly polite
- Don’t be rude
- Be respectful even when wronged
- Carefully limit and pick your fighting moments and then maximize them
- If you hear yourself whining: “but your honor” over and over again – stop it.
- When you lose your temper and start fighting anyway – forgive yourself and move on
Photo: South Lake Union totem
Title: Keep your head to the sky. By Maurice White 1973
Speak in Sun Valley at Idaho Trial Lawyer Convention in the morning. Then on a panel in the afternoon. Leave at 3:30. This means I cannot fly direct to LAX because that plane is gone. Instead have to fly back to Seattle to then fly to LAX. Arrive at 10:45 p.m. Taxi to The Line Hotel. Arrive at 11:30 p.m.
There’s a reason for the name of this hotel. There is a line wrapped around it. Slide through crowd of young people. Hotel lobby is pitch dark and throbbing with people and music. I don’t mean the club area to the side of the building. Or the bar past the front desk. I mean the actual lobby. As soon as I walk inside am surround by clubbers. Which if I hadn’t gotten off an airplane I might have been more pleased with. But I am a grump.
Wait for front desk to check a woman’s purse so she can dance unencumbered. They give her a bag tag. My turn finally. Pretend smile. Check in process occurs via sign language and reading each other’s lips. It is too loud to speak. Go up to 5th floor. Open door. Very hip. Stripped to concrete walls. Lots of outlets for electronics. Low slung furniture. Bathroom vanity hits me mid thigh. Really tall people would have to bend over double to turn on the faucet. I am 20 years too old for this hotel. Okay. Maybe 30. Ceiling to floor window fronts Wilshire Blvd. The main street. Look outside. Can see and hear everyone in the line and every car cruising the strip. There is also a joint in the road that makes an extra special crunch sound every time a car passes over.
Consider going downstairs to change rooms. But am too irritated. The cacophony of sound bounces off the unforgiving gray cell walls. I look up the white noise station on Pandora. Waterfall. No. Rainforest. No. Settle on Springtime showers. Turn it on via little portable speaker. It can’t drown anything out. Pull out iPhone ear buds. That doesn’t work. Pull out running ear buds that fit a little tighter. That doesn’t work. Turn up the white noise. Hello. Loud white noise is not white noise – it is just noise. This means that I stay up the entire night. The party road does tone down around 4 or so in the morning. But by then I’ve given up. They are going to get a bad review on Trip Advisor.
Next morning walk from the hotel to Southwestern Law School. 7 blocks away. It is already 75 degrees. The school is in a magnificent art deco building. Take the elevator up. Am speaking to the National Police Accountability Project. Spend a delightful three hour morning presenting on voir dire, opening and case themes. Afterwards one of the attendees asks for a sample complaint. I write complaints like opening statements. Filled with details and structured the way that makes the most sense to me. So here it is. Complaint FINAL
Photo: At Southwestern Law School getting ready to speak to NPAP
The movie gift that just keeps giving – is the showdown between Tom Cruise and Jack Nicholson in A Few Good Men. That moment on the witness stand when Jack defiantly declares his magnificence. Gets up to leave. And Tom says – sit back down. And Jack has to. Because he’s in court.
Mr. T, as you may recall , gave a rather similar performance in deposition last month. And then some. Because no judge was present.
I returned to my office. Waited awhile for the transcript. And during one of my afternoon runs with Nala, came up with a plan.
Mr. T is from Oregon though licensed in Washington. I decide to bring a motion to compel that is not your typical motion. Many areas of the law are quite form based. Not so with tort law. Too many variables. It’s fun that we can be creative and not complete paperwork by rote.
The motion asks the Court to put the burden on the defendant insurance company to produce Mr. T for another deposition at their expense and to require the production of his time records and any other missing file records before the lawsuit was brought. This type of motion requires that I show Mr. T’s conduct to have been evasive in the deposition. Here are three short examples :
- Q Why haven’t you done anything to prepare for today?
- LEID: Object to the form. Go ahead.
- A Because I’m a fact witness, and I don’t prepare for depositions when I’m a fact witness. You haven’t asked me to prepare for anything, and I’m not under an obligation to prepare anything.
- Q Okay. So you are just going by your memory?
- A No.
- LEID: Object to the form. Go ahead.
- A So if you ask me a question, I’ll do my best to answer it, if I recall it. If you show me a document, I’ll answer to the best of my ability about what the document is and my involvement in it.
- Q Do you intentionally not prepare when you’re called as a fact witness?
- A I don’t understand your question. I don’t know what you mean by that.
- Q Is there any mention of Mr. V and November 29 in there?
- A Okay, I just read the paragraph. The document speaks for itself. This paragraph is about Mr. R’s effort to secure a recorded statement.
- Q Why didn’t you include Mr. V’s —
- A You’re asking me to remember — You’re asking me to speculate as to why that wasn’t put in there in August of 2011. Is that your question? I have no idea.
- Q All right. And then on December 5, you wrote that Mr. S — You can read it if you want. Why don’t you read it.
- A Here’s what I would generally say: This is an exhibit; it speaks for itself. I don’t have a recollection of this. I’ve never found it effective to ask someone to discuss a document that’s an exhibit, that they’ve said is an accurate exhibit. I think it’s an incredible waste of time. And I don’t really want to sit here for three hours and have you go over documents like this, because you’re wasting time. I’m not going to elaborate on this because I cannot elaborate on it. It was four years ago. The document was produced by my office, okay.
- Q What I find to be an incredible waste of time is for me to come down here and hear that you didn’t even look at your file to prepare for your deposition. And then when I show you a document, you don’t even answer the questions because you find that to be a waste of time. So I think we’re at an impasse as to who is wasting whose time.
- LEID: Objection. Is that a question, Counsel?
- (BY MS. KOEHLER:) Did you not get your own file documents from your own counsel?
- A Go ahead and ask your next question.
- Q Were you given your file documents before today?
- LEID: Object to the form.
- A Go ahead and ask another question.
- Q That is my question.
- A I’m not going to answer that question.
- Q On what basis?
- A I’m just not going to answer it. You’re welcome to call the judge and have her require me to answer it, if you’d like.
And so, that’s exactly what I did by motion. And what the Judge Ordered.
The motion is attached here.CompelTMtn
The order is attached here. CompelTOrdr
Photo: Nala and the reason running helps with thinking things through.
Driving while high is now being used as a sword by the insurance companies of bad drivers who cause crashes.
Let’s say you live in a state where pot is legal. You get high on a Sunday evening with a group of friends in your own home. On Thursday, you are driving down a road and someone runs a red light. You had a green light. The bad driver tells the officer that you look high. The officer doesn’t see anything unusual but asks you to take a blood test. Carboxy-THC shows up. You are ticketed for driving under the influence. Until a prosecutor looks at the blood work and realizes there’s no case. At which point the charges are dropped.
This is not a fanciful scenario.
Once a person uses marijuana, THC (Tetrahydrocannibol) can stay in the blood stream for days if not longer. However not all THC is the same.
The pharmacology of marijuana is described in terms of three chemicals:
1) THC, which is metabolized into
2) 11-hydroxy-THC, which is the metabolized into
Only the first two chemicals – THC and 11-hydroxy-THC produce impairing effects on brain cognition. The third chemical form – carboxy-THC is not psychoactive and not associated with impairment.
In a recent case, a van driver blew past a yield sign into an intersection. At the same time, a car driven by a young man (Hopkins) with two passengers was already in the intersection. Hopkins was on the arterial and had the right of way. The van t-boned the car of friends. Our client was one of the passengers in the car. She was critically injured.
When the lawsuit was filed, the van driver’s insurance company claimed that Hopkins was at fault for not reacting faster to the van having blown through the yield signed. They claimed that he had THC in his blood and was driving high. Hopkins said he had used marijuana a week before the crash and was not driving high.
Attached is the motion for summary judgment filed by Hopkins’ attorney. The plaintiff’s lawyers joined in the motion. The van driver’s lawyers opposed it. After a court hearing, the judge agreed that there was no evidence Hopkins was driving while high and that he was not at fault for the van having run the yield sign. Hopkins was dismissed from the case.
Motion for Summary Judgment: Hopkins’ MSJ
Photo: Animation still by Larry Tompkins, P.E.
Drunks in cars kill. But blame is also shared by the bars that choose to over serve intoxicated customers who get in their cars.
This is the story of three young friends who got in the way of two over served drunks in a car.
Excerpt from settlement demand:
The three friends were enjoying a quiet, laid back evening. The highlight was to stop by 7-11 and pick up some drinks, chips and candy. They were planning to eat the snacks while watching Cats & Dogs, a family movie. They left 7-11 and were headed northbound along the four foot paved shoulder of Shoultes Road. The group was well to the right of the fog line. Street lighting provided clear illumination.
AA and JJ were walking on the inside of the shoulder. SS was perched next to them on a small bike he had borrowed from another friend. SS was the closest to the travelled portion of the roadway.
One minute they were smiling and chatting. The next they were flying through the air. The friends had no time to run for cover. No time to react at all. The VW had accelerated, swerved and struck them from behind. The force was so tremendous that their shoes and clothing were ripped from their bodies.
SS was thrown towards the right shoulder. JJ was thrown to the left, landing in the center of the roadway. AA was vaulted up into the windshield and driven farther down the roadway before landing on the right shoulder. Their bodies came to rest 50 to a 100 feet apart from one another.
Witness PDL was watching the wildly swerving vehicle and at first thought it hit a tree limb. As her vehicle reached the scene, she saw the scattered bodies and debris. She began screaming and crying. Her driver Witness M stopped and jumped out of the car to halt traffic and protect the kids until help arrived. Witness PDL called 911 and stayed on the phone until aid arrived.
The first 911 call came in at 11:27 pm. Officer King showed up within one minute of being dispatched. He ran from one young man to the next. Trying to determine if anyone was alive. He found SS about 20 feet south of the bicycle he had been riding. SS was unresponsive, unconscious, but alive. His loved ones were not by his side. No one kissed him, whispered goodbye, or told him how beloved he was. Medics tried to resuscitate him to no avail. He died a few minutes after Officer King first checked on him. Alone. His head and upper body rested on the cold pavement. His legs lay off the side of the road in dirt. There he lay for over four hours, waiting for the Medical Examiner to arrive.
Text of demand – edited: SKMBT_C55214101608470
Photo: Bar surveillance video capture of the drunk having another drink
“Atticus told me to delete the adjectives and I’d have the facts.” – Chapter 7 of To Kill a Mockingbird
Her right leg was catastrophically smashed, causing excruciating and unrelenting pain. The limb felt like it was being stabbed a million times by a sharp knife. The sharp burning pain became absolutely unbearable to the point where she was forced to take vicodin. She was reluctant to take this narcotic drug, but her overwhelming distress left her no better option. Even so, when she finally managed to choke down the potentially addictive drug, it didn’t help alleviate her suffering. She was unable to get a restful, healing and nurturing sleep, because every time she turned over or made any movement, her severely injured and damaged leg would go into spasms of terrible pain that strongly radiated throughout her fatigued and shaking body. Fortunately, no bones were broken. It took almost six weeks before her badly stretched and tortured ligaments recovered enough for her to begin running again.
We learned the power of adjectives starting in about the second grade. These “describing words” add color to our communication .
In the legal profession, lawyers tend to be very good with language. We enjoy flexing our grammatical skills. Adjectives are high on the list of words that we like to use. So we use a lot of them.
But in our quest to persuade with adjectives, we run the risk of appearing overly melodramatic. The melody and rhythm of what we are saying, is drowned out by disharmony. The audience has difficulty finding its way through our tune. And eventually resorts to ignoring the babble. This process in turn subverts our perceived credibility with both judges and juries.
Here are some thoughts on using adjectives:
- Less is (usually) more
- Save strong ones for moments where emphasis is actually needed
- Don’t use the same one repeatedly within a short time span
- Don’t rely upon them to explain what is going on
- Avoid stringing them together
- Don’t assume they are helping to make your point
- Stop thinking that you can manipulate the audience’s emotions through the use of adjectives
- Practice self restraint in employing them
- Try to hear (from others’ perspectives) what you are saying
- Try to read (from others’ perspectives) what you are writing
- Respect the delicacy involved in using them
- Make sure they have the right tenor
Photo: By Alysha – My melodramatic mother in her pink piggy slippers and slogan shirt.
Part 2: Deposition of treating providers in a medical negligence case resulting in bilateral leg amputations.
This next deposition excerpt series is summed up as: The Doctor Versus The Nurses.
Being evasive in a deposition does not play well in front of a jury. The witness here believes he is scoring brownie points by not answering the questions. The best way to deal with an evasive witness is to let them evade to their heart’s content.
Again, this does not work so well if the lawyer asking questions sticks strictly to an outline. If an evasive answer is given and you simply ask the same question again and again you become part of the problem. You will draw the customary objection: asked and answered. The witness will begin to simply repeat the same evasive answer to the same question. Until someone gives up.
In this excerpt, the doctor uses a word that will ultimately become perhaps the single most important word in the liability case. The word is not a medical term. It is a word of common usage. It will impact credibility. And will create a hole for the defense that will be impossible to dig out from. The word is: significant.
15 Did you review the nursing notes?
16 A We typically do not review the nursing notes.
17 Q If the nurses note abnormalities, how do you get that
19 A If they think it’s significant, they report it to us.
20 Q If there is a significant abnormality, do they have a
21 duty to report it to you?
22 MS. EK: Objection. Calls for a legal
24 A I cannot speak for them.
25 MS. GRIFFITH: Join.
1 Q (BY MS. KOEHLER) Do you expect nurses to report any
2 abnormal condition or symptom to you?
3 A If it’s significant.
4 Q How do they know if it’s significant or not?
5 A It’s their job. I can’t speak for them.
6 Q Is a – is it a significant finding if lower extremities
7 are mottled?
8 MS. EK: Objection. Incomplete hypothetical.
9 MS. GRIFFITH: Join.
10 A Depends.
11 Q (BY MS. KOEHLER) Were you aware – made aware by any
12 nurse at 8:30 p.m. – no; sorry – 8:30 would be a.m. on
13 October 27 that Ms. Spriggs’ lower extremities were
15 A No.
16 Q Would that have been a significant finding?
17 MS. EK: Objection. Incomplete hypothetical.
18 A Yeah. I can’t speak for the nurses.
19 Q (BY MS. KOEHLER) If you don’t know whether having
20 mottled extremities is significant, how would a nurse
21 know that?
22 MS. EK: Objection. Argumentative.
23 A Sorry. I don’t get that question.
24 Q (BY MS. KOEHLER) Why is it . . . Why is having mottled
25 legs not a significant finding?
1 A Who said it’s not significant?
2 Q Is it significant?
3 MS. EK: Objection. Incomplete hypothetical.
4 A I can’t – I can’t tell what the nurses saw or wrote.
5 Q (BY MS. KOEHLER) If legs are mottled, is that a
6 significant finding?
7 A I cannot speak for the nurses. You are asking a
8 hypothetical question.
9 Q I’m asking you as a doctor. If you saw —
10 A As a doctor —
11 Q As a doctor, if you saw mottled legs, would you find that
12 to be significant?
13 A Sometimes patients have skin changes that, you know,
14 would come and go, so this would make it insignificant.
15 If it’s persistent, it would make it significant.
16 Q Would it be significant if the change to the mottled legs
17 25 minutes later was that they were now cool and mottled?
18 A It – it doesn’t make much difference, the fact that it’s
20 Q Cold and mottled is no different than just being mottled?
21 A Again, you know, depends on the patient temperature, the
22 circumstances. This is very hypothetical. Many patients
23 have cold extremities with different diseases.
24 Q Well, you had known Ms. S from a month-and-a-half
1 A Correct.
2 Q You knew her medical condition.
3 A Correct.
4 Q She didn’t present with mottled extremities at the time?
5 A Not that I recall, no.
6 Q They’re not noted in any chart note in September.
7 A You mean in September?
8 Q Correct.
9 A No.
10 Q So in October, if the nurses were noting that she was
11 having some swelling and her lower extremities were
12 mottled, would that be significant?
13 MS. EK: Asked and answered.
14 Q (BY MS. KOEHLER) I’m asking specifically with respect to
16 A Swelling is part of the congestive heart failure.
17 Having, you know, skin changes can be part of the
18 disease, too.
19 Q So you don’t feel that those are significant findings?
20 MS. EK: Objection. Argumentative.
21 A I cannot speak for the nurses, what they saw and whether
22 it’s significant for them or not.
23 Q (BY MS. KOEHLER) But as a doctor, you would not be
24 concerned with HS, who you knew from a month
25 before, having mottled legs with swelling?
1 MS. EK: Object to the form and asked and
2 answered approximately six times now.
3 A We are always concerned about all our patients with any
5 Q (BY MS. KOEHLER) If the cool, swollen, mottled legs were
6 also painful, would that be a significant finding?
7 MS. EK: Objection. Improper and incomplete
9 A Patients with congestive heart failure tend – tend to
10 have leg swelling and leg pains.
11 Q (BY MS. KOEHLER) Cool and mottled?
12 A I did not see her the first day, so I cannot speak for
13 cold or mottled.
14 Q If the patient had swollen, cold, mottled, painful legs,
15 also with nonpalpable pedal pulses, would that be
16 significant to you?
17 MS. EK: Objection. Still incomplete and
18 improper hypothetical.
19 A I did not see Ms. S the first day, and I cannot
20 really comment on her examination. Part of the
21 congestive heart failure symptoms would be leg swelling,
22 you know, painful legs, you know, color changes.
1 (BY MS. KOEHLER) Were you advised at 8:30 a.m. on
2 October 27th by CP, LPN, that Ms. S’
3 lower extremities were mottled?
4 A No.
5 Q Were you advised at 8:55 a.m. by CA, RN, that
6 Ms. B had bilateral legs that were cool and mottled?
7 A No.
8 Q You were advised or . . . Let me ask this: Were you
9 advised specifically by MC at approximately
10 10:46 that Ms. S had plus one edema in the
11 bilateral lower legs and her pedal pulses were not
12 palpable and she had bilateral lower extremity pain
13 sensitive to touch and generalized achiness?
14 A I do not remember.
15 Q Were you advised at 16:52 on October 27th by RM
16 CAN, that there was mottling in Ms. Ss’
18 A No, not as much as I remember.
19 Q At 22 – the hour of 22 o’clock on October 27th, were you
20 notified by JR, RN, that bilateral legs were
21 cool and mottled?
22 A I do not recall that I was notified.
23 (Clarifying interruption by reporter.)
24 A I do not recall that I was notified about this.
The dilemma created by this testimony, is that nurses are trained professionals too. They may not have the same level of schooling as a doctor. But their care and decisions can have a profound impact on a patient’s health. Will the nurses back the doctor – admitting in essence that it is their fault he did not know of the patient’s clinical issues. Or will the nurses contract the doctor. Let’s find out.
9 Q When you did the shift assessment and found the patient
10 to have purple feet, no pulses from her knees down, did
11 you transmit that – well, first of all, did you find that
12 to be a significant finding?
13 MS. EK: Object to the form of the question. It
14 was mottled feet.
15 MS. KOEHLER: As what?
16 MS. EK: Mottled. You said purple feet.
17 Q (BY MS. KOEHLER) Were her feet purple?
18 A Mottled could be a variation of colors.
19 Q What color were her feet?
20 A That’s a subjective judgment.
21 Q In your subjective judgment, what color were her feet?
22 A Mottled. I don’t know how to describe in color any
23 better than that.
24 Q Well, you’ve used the words dusky. What does dusky mean?
25 A Dusky can mean gray. It can mean darker pigmentation.
1 Q So were her feet of a darker pigmentation?
2 A Yes, than the rest – compared to the rest of her body.
4 Q Would you describe them as being purple or not?
5 A I would describe them as mottled.
6 Q All right. What color was the knee area compared to the
7 feet area?
8 A Less mottled.
9 Q How much less mottled?
10 A To – to a degree of severity?
11 Q Yes.
12 A I wouldn’t be able to make, you know, a quantification on
14 Q Were they visibly noticeably a different color than the
15 rest of the upper part of her body?
16 A Yes.
17 Q From the knees down?
18 A Yes.
19 Q With the feet the darkest?
20 A Yes.
21 Q So whatever shade it was, which you’re hesitant to put a
22 shade on it, it was – the darkest part were her feet?
23 A Correct.
24 MS. EK: Object to the form of the question.
1 Q (BY MS. KOEHLER) Am I right? The darkest part were her
3 A The darker part of her body were her feet.
4 Q All right. So back to my question. When you noticed
5 that her feet were – from her knees to her feet were
6 mottled and you went so far as to use a doppler to
7 confirm that there were no pulses, did you find that to
8 be a significant finding?
9 A Yes.
10 Q What does significant mean to you in nursing, you know,
11 in your – in your role as a nurse?
12 MS. EK: Objection. Vague.
13 A A significant finding is – to me is something that needs
14 to be reported or assessed more frequently.
15 Q (BY MS. KOEHLER) Did you report the finding of the no
16 pulses from the knees down and the mottling to a
17 physician as soon as you made note of that?
18 A Yes.
19 Q Who did you report it to?
20 A Dr. B and NP.
21 Q And NP was the P.A. on duty?
22 A She was at bedside.
23 Q She was at bedside? Now, Dr. B was not at the
24 hospital. Am I right?
25 A Correct.
1 Q So how did you contact him?
2 A He had contacted me once and I had contacted him. I
3 attempted to contact him twice through my shift. I had
4 reached and discussed with him once. I was unsuccessful
5 on my third attempt to contact him.
6 Q So what time periods did you attempt to contact him?
7 A He called me to get an update at 2300. I called him
8 shortly after that. I’d have to look at my charting
9 here. Shortly after that, around 2330, I contacted him.
10 Then at the end of my shift – I’d have to look at my
11 charting again – about 6:30, 6:45, I called him and was
12 not – I did not get a response.
13 Q Okay. When he contacted you at 11 o’clock p.m. and you
14 contacted him at 11:30 p.m., did you actually speak to
16 A Yes.
17 Q Each time?
18 A Yes.
19 Q Did you tell him that there were no pulses from the knees
20 down and that there was mottling with the darkest
21 mottling being at the feet?
22 A I had told him my findings and my assessment of no pulses
23 in her feet, no pedal pulses, no tibial pulses and the
25 Q Is there any doubt in your mind that you told him that
2 A No. I told him that information.
3 Q Is there . . . When you looked at your charting, did you
4 see notation – notes that you had those conversations
5 with Dr. B?
6 A There was a note that I – Dr. Bcalled for update.
7 Q And that’s when you would have transmitted that
9 A Correct.
10 Q What other information did you transmit to him beyond the
11 no pulses and the mottling?
12 A General – my general assessment, general like vital
13 signs, labs that had come back, discussed medications
14 patient was receiving.
15 Q Okay. When he learned of the no pulses and the mottling,
16 did he give you any special instructions with respect to
17 that item?
18 A No.
Is this a classic case of he said, she said. Or there more to this story.
To be continued…
Photo: Another timeline PPT slide by Duane Hoffmann
Am at a hospital. Sitting on one side of a long table in a cafeteria. With me is my partner Paul Whelan and paralegal Cheryl Baldwin. Paul has been handling medical negligence cases since I was in grade school. He is my Yoda. Cheryl screened this case and knows everything that I need to know. Between the two of them, I’m covered.
To my left at the end of the table in front of a video backdrop is the witness. He is not only the treating doctor. He is the Medical Director of the Hospitalist Program and Chairman of Internal Medicine at the hospital. Across the table are the defense lawyers, a risk manager and representative from the hospital.
My job is to ask questions that will pin the doctor down, expose his vulnerabilities, and figure out why he did what he did when treating our client.
I use words that I have never used before. Like rhabdomyolisis which I pronounce correctly only because listened to it on http://www.howjsay.com/. I mispronounce words like pedal pulse and ischemia. The defense lawyers smirk a little.
This doesn’t bother me.
One of the joys of being a trial lawyer who handles every imaginable kind of case – is the never ending challenge of learning something new. Am not worried about making a fool of myself. My preparation for this day has involved more hours of studying the records and medicine than the deposition will actually take. Plus am an intense listener.
This is my practice tip. When examining any witness: your next question should flow from what their answer to the last question was.
Lawyers who stick to outlines are handicapped because they don’t place a premium on the art of listening. If you don’t listen, then you cannot engage in repartee. If you cannot engage in repartee, then you have less of a chance of being able to effectively examine a witness.
In this deposition excerpt, the doctor is on a mission to prove: 1) that he acted perfectly; and 2) that any fault belonged with his patient our client. This particular blame the victim defense theme goes like this: It was her fault for not moving to a more urban environment with better medical facilities.
Let’s see how this plays out.
4 Q (BY MS. KOEHLER) What was the plan of treatment that you
5 suggested to her?
6 A She ran out of some of her medications. We gave her the
7 medicine that she needed and we advised her to establish
8 care with a primary care physician and cardiologist.
9 Q Did you advise her that she should consider living in an
10 area with access to the type of specialists and
11 treatments she was likely to need which are not —
12 A Correct.
13 Q — available in Grays Harbor County?
14 A Correct.
15 Q Are you saying that Grays Harbor County does not have
16 sufficient medical care to take care of all people?
17 A We do not have many specialists. Correct.
18 Q Do you believe that the hospital was not prepared to take
19 care of a patient like HS?
20 MS. EK: Object to the form of the question.
21 MS. GRIFFITH: Join.
22 A Can you repeat the question.
23 (Pending question read by reporter.)
24 A The hospital was prepared.
25 Q (BY MS. KOEHLER) How was the hospital prepared to take
1 care of Ms. S if the community of medical providers
2 in Grays Harbor was not able to take care of Ms. S?
3 A I think if we do not take care of these patients, with
4 the distance away from, you know, specialty – you know,
5 specialties, you know, many of them will not make it. So
6 we’re always the bridge between – stabilizing them until
7 they get, you know, to the bigger hospitals.
8 Q So is it your advice that people with serious medical
9 conditions requiring specialty care not live in
10 Grays Harbor?
11 MS. EK: Objection. Overly broad.
12 A It’s a very broad question. In Mrs. S’s case, I
13 specifically advised her to be closer to the specialists
14 that she needs due to her age and, you know, her medical
16 Q (BY MS. KOEHLER) Is that something that you do often is
17 tell people that – with serious medical conditions that
18 they should not live in Grays Harbor?
19 A Not really. Sometimes out of concern for the patient’s
20 safety, if I feel that they need way more services, then
21 I advise them for their safety, which has been very, very
23 Q Can you think of one other case other than HS before HS that you advised someone
25 that they should not live in Grays Harbor?
1 A Yes.
2 Q How many?
3 A Just a few.
4 Q And what type of conditions?
5 A You know, one that I remember was a young patient in his
6 twenties with a heart transplant that I didn’t think, you
7 know, he would get the medical care he needs here.
8 Q Any – any other example that you have other than a heart
9 transplant and Ms. S?
10 A I can’t think of any.
The doctor has portrayed himself as an extremely caring but worried treater. HS’s condition is so severe that he has advised her to move out of town to access better care. Let’s see what happens when HS returns to the hospital one and a half months later. Just how well does the doctor’s concern ring true.
4 Q Okay. Once Ms. S was admitted to the hospital, how
5 long was it before she was seen by a medical doctor, not
6 a physician’s assistant?
7 A Okay. We are supposed to see patients within 24 hours of
8 admission. I first saw her at 7:00 a.m. So within less
9 than the duration.
10 Q You first saw her at 7:00 a.m. the next day?
11 A Correct.
12 Q What time was she admitted by Physicians’ Assistant
14 A I believe she was admitted around noon the first day.
15 Q And it was an average – average to busy day for you?
16 A Correct.
17 Q And you had seen her before?
18 A Correct.
19 Q But you didn’t have time to see her first in the seven
20 hours that you were still at the hospital?
21 MS. EK: Object to the form of the question.
22 A I did not need to see her. She was admitted by
23 MC (the physician’s assistant).
24 Q (BY MS. KOEHLER) That wasn’t my question. So on October
25 the 27th, even though you had seen her a month-and-a-half
1 before and you were at the hospital for seven hours, you
2 did not find it necessary for you personally to go visit
4 A I did see her.
5 Q On the 27th?
6 A Is 27th the first day?
7 Q Correct.
8 A I saw her the 28th.
9 Q Okay. But I’m talking about the 27th. Before you left
10 home that night at 7 o’clock in the evening. You’d
11 already seen her once a month-and-a-half before.
12 A Correct.
13 Q You knew she was admitted.
14 A Correct.
15 Q You were at the hospital for seven hours.
16 A Correct.
17 Q It wasn’t a terribly busy day. It was either average to
18 busy average.
19 A Correct.
20 Q But you didn’t have time to go see her?
21 MS. EK: Objection. Misstates.
22 A She was admitted by MC.
23 Q (BY MS. KOEHLER) Did you have time to see her if you
24 wanted to see her on the 27th?
25 A I did not get that question. Sorry.
1 Q On the 27th, if you wanted to pop in and see her, did you
2 have time to do that?
3 A I cannot remember the day.
The doctor has created a major inconsistency. On the one hand he was so concerned about HS that he advised her to move somewhere else to get better specialty care. On the other hand, when she came back to the hospital a month and a half later, he was fine with her being examined and admitted by a non-doctor physician’s assistant.
To be continued.
Photo: First timeline PPT slide – by Duane Hoffman.
Now that marijuana has been decriminalized in Washington state, issues are going to arise about driving under the influence. Unlike alcohol which only transiently stays in the body and can be detected with various tests, the detection of marijuana is a bit more complicated.
In this case, a van driver plowed through a stop sign into an intersection without touching his brakes. He smashed into a small car coming from his right. That car had the right of way. It had no stop or yield sign. It was travelling within the speed limit.
During the lawsuit, the defense tried to turn the tables by blaming the plaintiff car passenger for causing the crash.
Even though the car driver did nothing wrong while driving, the defense claimed he reacted too slowly. They argued that he should have predicted that the van would blow the stop sign and that he should have taken evasive action. They banked their argument on the finding in his system of a byproduct of marijuana known as carboxy-THC.
At the scene, the police saw no signs of intoxication of the car driver. Forensic toxicologists determined there was a little carboxy-THC in the car driver’s body. Carboxy-THC stays in the blood stream for quite a while, even if you are not using marijuana. The car driver said he didn’t use pot before the crash.
The defense said the plaintiff was at fault because she got into the car with a driver who was under the influence.
My partners Paul Stritmatter, Garth Jones and I, along with co-counsel, proactively brought a motion for summary judgment against the claim that the plaintiff was comparatively at fault.
This defense was ultimately thrown out of court. Here is the brief: Pl’s Motion for Partial Summary Judgment.
Photo: Trial Exhibit from the case
Defense attorneys go to legal seminars too. One technique they have been learning is how to take advantage of liberal discovery rules. Increasingly we find them invading where they have no business being.
We can passively let them dig unnecessary holes in our clients’ lives. Or we can push back when they cross lines.
Here is the sequence of what happens:
1. Defense issues obnoxious discovery request seeking something that is none of their business.
2. Plaintiff lawyer (hopefully) says – we are not going to answer that.
3. Defense lawyer calls for a discovery conference as a prelude to bringing a motion.
4. Defense lawyer files a motion to compel.
5. Plaintiff lawyer responds.
6. Defense files reply brief.
7. Court rules on the motion
One of the best strategies of how to engage in litigation warfare as a plaintiff attorney is this: prosecute the case. This means do everything you can not to be on the defensive. The sequence above shows the plaintiff defending the discovery issue. This can be switched around. File a motion for protective order instead of waiting for the defense to file a motion to compel. By being proactive, plaintiff gets to frame the issue for the court. And better yet – gets to file a reply brief. There’s some joy (not to mention technical advantage) in being able to have the last word.
Attached is a motion for protective order filed in an underinsured motorist lawsuit where the car insurer tried to get the disability insurance files of the plaintiff. Mtn for Protective Ordersample.
Photo: Two broken statues in a museum in Olympia Greece. They could have used a protective order.