Cracking Personal Injury Cases
Drafting key documents leading up to trial.
By Catherine Astl, CLA
July/August 2006 Issue
When
preparing for a personal injury civil jury trial, the paralegal can play
a pivotal role by asking important questions, getting the case ready and
drafting documents leading up to the trial. You must know how to draft
key documents including update, supplemental and expert interrogatories;
motions in limine; witness and exhibit lists; proposals for settlement;
jury instructions; and verdict forms. Preparing such documents can be a
challenge, but having all the information at hand and planning in
advance can give you the advantage you need when it comes time to help
your attorney get ready for a document-intensive trial.
Supplemental Written Discovery
Paralegals draft the vast majority of discovery documents. Depending on
the firm’s culture, paralegals might take it upon themselves to draft
discovery documents for their attorney’s review, or they might receive
an assignment from their attorney to draft a supplemental request to
obtain surveillance videotapes, for example. No matter who initiates the
discovery, you should calendar the deadline for discovery cut-off in
every case (usually specified in a trial order), and calendar time well
in advance of the deadline to discuss and draft supplemental discovery
with your attorney.
When
considering supplemental discovery, look at what has changed since the
initial disclosure. Is there any new information that is crucial to the
case? Updated discovery via interrogatories and requests for production
will help you answer this question. In most states, there are certain
standard interrogatories to help you find out new information: update,
supplemental, surveillance and expert interrogatories.
Update
and supplemental interrogatories consist of questions asking if anything
has changed since a party last answered interrogatories. Such items
could include treatment by a new doctor, having surgery, being fired
from a job because of the subject injury or taking new pain medication.
It’s especially important to determine whether any subsequent accidents
have occurred. If so, both sides need to determine whether the
subsequent accident exacerbated previous injuries or caused any new
injuries. In other words, which injuries can be attributed to the
subject accident and which can be blamed on another incident?
To
find out if the plaintiff was being watched, the plaintiff propounds
surveillance interrogatories. These questions should ask if there has
been surveillance, and if so, who did the work, when and whether there
was a report or videotape of the surveillance. The answers then can lead
to a deposition of the investigator and a request to obtain the actual
video or report.
Both
sides propound expert interrogatories, and they serve to answer
pertinent questions regarding each side’s expert witnesses. In addition
to requesting the basics of the expert’s educational background and
qualifications, these can be very intricate and detailed. For example,
the expert interrogatory might ask how many cases the expert has
reviewed for both plaintiffs and defendants, how many surgeries he or
she performs per month, how many accident reconstructions he or she has
completed in a certain jurisdiction, if his or her opinions ever have
been disqualified, how many depositions he or she has given, and so
forth. Questions also often are asked regarding how much compensation an
expert earns from the law firm or insurance company for which he or she
is testifying. This sometimes is a pertinent tool used to impeach an
expert. Juries take note if, for example, an expert earns 75 percent of
his or her income from one law firm or insurance company. Attorneys
should be armed and ready to point this out and portray the expert as a
hired gun.
Update, supplemental and expert interrogatories usually are sent 60 to
90 days prior to a trial date (or just prior to a discovery cut- off
deadline). This leaves enough time for a party to respond prior to trial
and for the requesting party to review the documents. Always check with
your attorney because he or she might want them propounded earlier or at
the last possible moment based on his or her particular trial
preparation habits, general work ethic and case preparation.
Motions In Limine
When
drafting a motion in limine, determine if there is anything harmful or
prejudicial that should be kept away from the jury’s eyes and ears. This
is the purpose of a motion in limine. For either side, there are
detrimental issues and facts that are irrelevant, prejudicial or are of
only nominal probative value and should not be proffered to a jury. One
such example is a hot issue today — the issue of a plaintiff’s
litigiousness. The plaintiff firm might file a motion in limine asking
the court to keep any information about prior claims or lawsuits from
being mentioned.
Here
is an example of how a motion in limine can be used in trial
preparation. The plaintiff moves for the entry of an order preventing
the defendant from offering testimony, making any reference to or
mention of the following matter for the following reason: “Any and all
prior claims for personal injuries, whether workers’ compensation or
otherwise, have no direct or indirect bearing on the instant case. The
fact of prior injuries or claims, or any documents pertaining to same,
only serves to cast the plaintiff in a negative light as a litigious
person, and any nominal probative value is far outweighed by the
resultant prejudice to plaintiff.”
Likewise, a defendant might motion to keep out past accident or incident
history, past criminal history or involvement in other lawsuits, citing
prejudice to the defendant’s case. Of course, a judge might deny such a
motion and allow testimony to come in if he or she thinks it’s relevant
to the instant case. However, many times, motions on such issues are
granted and the lawyers are ordered to stick to the relevant facts.
As a
paralegal, you can assist the attorney by researching and identifying
which issues might require a motion in limine and drafting these
motions. For example, if you meet with a client to review
interrogatories and that client reveals an extensive criminal history, a
memo to the attorney should identify this as a potential issue that
might require a motion in limine. It’s helpful to start taking notes
from the beginning of each case. If you identify a potentially harmful
issue, immediately make a note of it — perhaps in a separate computer
file called “motion in limine issues.” The biggest hurdle, in my
experience, is identifying every issue in every case that potentially
could be harmful. Starting from the beginning will help you make sure
all such issues are addressed.
Witness and Exhibit Lists
Once
you receive the trial order listing the trial date and all of the trial
deadlines, one of the most important tasks is to prepare a formal
witness and exhibit list. Paralegals are pros at sifting through files
to find all eyewitnesses, treating doctors, incident reports and
photographs, but even the most diligent paralegal can overlook some
things.
Pharmacy records. Be sure to obtain pharmacy records along with their
records custodians from before and after an accident. These records
could benefit the defense by showing that a plaintiff took some pain
medication prior to an accident. Or, the plaintiff could advance his or
her cause by showing that no medications for pain were needed prior to
an accident, but afterward, five prescriptions were filled every month.
Custodians of records. Don’t forget to obtain custodians of records from
repair establishments that prepared estimates for repairs or repaired a
defective product or vehicle. In one case, through discovery it was
found that a repair shop prepared an estimate for repairs on a display
shelf in a grocery store prior to the shelf falling on a patron. This
witness was invaluable in proving that the store knew of the defective
shelf and even obtained an estimate for its repair, but didn’t get it
repaired.
List
all individuals and facilities. When listing medical facilities,
exhaustively review every medical record from each facility to procure
every doctor, massage therapist, specialist, physical therapist,
chiropractor and nurse practitioner who treated the plaintiff, and list
each individual along with the facility’s name. In my experience working
for a plaintiff’s firm, we have gotten into some tight spots by listing
only a facility and not listing every individual provider treating a
plaintiff. In one case, we wanted to call a physical therapist to
testify at trial, but the defense argued that she was not on the witness
list. Technically, she was not on the list, but we thought we covered
ourselves with the standard catch-all clause “and/or records custodian
and/or any and all medical providers who rendered treatment to
plaintiff.” In the end, we were permitted to call the witness, but it
was such a close call that our policy from then on has been to ascertain
every single provider and separately list each person.
Proposals for Settlement
Many
times, prior to a trial, settlement negotiations kick into full gear
with both sides determining wheth-er to in-crease an offer or decrease
their monetary demands to reach a settlement. Proposals for settlement
are formal settlement proposals packed with certain implications.
Procedurally, in most state courts, only the notice of proposal for
settlement is filed with the court; however, the actual proposal for
settlement with the monetary offer typically isn’t filed with the court.
The intent of these documents is to protect a party making a fair and
reasonable offer from being forced to bear the costs of trial when the
case should have settled for the amount proposed.
Paralegals on both sides play a large role in preparing the actual
proposals for settlement documents and also greatly assist in
determining an amount to propose to the opposing party by thoroughly
reviewing and assessing a case file. Both plaintiff and defense firms
utilize their paralegals to summarize damages, injuries and liability
theories.
When
preparing settlement documents, be sure to update all medical bills and
lien amounts. If a client has been continually treated by a particular
doctor or has seen numerous medical providers, the bills you received at
the beginning of the case could be very different as the case
progresses. Obtaining updated subrogation lien amounts could be crucial
as well. Make sure all required information is up-to-date. There usually
can’t be a meaningful proposal for settlement without knowing exactly
what needs to be paid out of a gross settlement. For each case, you
typically will prepare a memorandum or summary of medicals, often called
“specials,” outlining total charges, payments made and balances owed.
You
also should include all lien amounts, a statement of how the incident or
accident occurred and any liability information. Liability information —
or who was at fault — can be gleaned from incident reports, accident
reports, witness statements, deposition testimony and discovery
responses. By organizing all of these pieces of information, you
eventually form a sharp snapshot of the case so the attorney can
determine a fair amount to propose, or determine if a proposal for
settlement from the opposing party is worth accepting. You also should
track the 30-day deadline for the opposing party to accept the offer.
If a
net verdict doesn’t exceed 75 percent of the defense’s offer or the
plaintiff receives in excess of 125 percent of the offer, paralegals
typically assist in preparing fees and costs to present to the court via
a motion to tax attorney’s fees and costs. This motion itemizes the
amount of time expended and outlines expenses involved in trying the
case from the date of the proposal for settlement. Also, keep in mind
that proposals generally are not permitted earlier than 90 days after
service of process upon a defendant, and in most jurisdictions, no
proposal can be served later than 45 days before the trial date.
The
rules of civil procedure in each respective jurisdiction dictate what is
permitted surrounding formal proposals for settlement. However, here is
a lesser-known fact that can be a helpful tactic in many jurisdictions:
A party can file more than one proposal for settlement. For instance, if
a defendant proposes $7,500 to a plaintiff and the plaintiff rejects it,
the defendant can file another proposal for $15,000. The defendant even
can file another one after that. Each proposal is separate and multiple
proposals might act as a springboard to settlement — the closer the
parties get to meeting in the middle regard ing monetary demands, the
more likely they are to settle the case.
Jury Instructions and Verdict Forms
If a
jury trial is required, you will need jury instructions and verdict
forms. Most firms have computer files of form jury instructions. Also,
all jurisdictions and states have standard or model jury instruction
books published by top legal publishers where you can find almost any
instruction you need. However, it’s still prudent to determine what you
need to include.
It’s
important to meet with your attorney to focus on the issues in the case
as the first step for preparing jury instructions for trial. Of course,
there are certain standard instructions used in every case, such as
“greater weight of the evidence defined,” “choosing a jury foreperson”
and “believability of witnesses.”
However, every case has nuances and specific issues, and spotlighting
those can help the jury consider what you want them to consider. For
example, if vicarious liability is an issue, you might want an
instruction specifically on that issue. Likewise, if you are relying on
a code or ordinance, you should add that code or ordinance to the
instructions to the jury. Basically, try to outline every issue or
question that a jury could consider and address it in the instructions.
If a case involves a dump truck, perhaps there are certain statutes
concerning operation of dump trucks. If a case involves a slip and fall
on a wet surface of a pool area, perhaps an instruction on the meaning
of “open and obvious” or “assumption of the risk” would be required.
Most
jurisdictions require attorneys to stipulate or agree to one complete
set of instructions. Scheduling a meeting between counsel on both sides
well in advance of the trial date alleviates any miscommunication or
left-out instructions, and serves as a catalyst to resolve any issues
counsel might have with the instructions. If counsel can’t agree, the
judge might hold a hearing and decide on a complete set of instructions
to give to the jury.
Many
courts today are implementing electronic methods of document submission.
Placing your jury instructions on disk, CD or even e-mailing them to
your attorney to access on a laptop at trial (if permitted) is effective
for making any last-minute changes necessary during trial.
The
jury uses a verdict form to decide liability and calculate damages.
Paralegals drafting such forms should be aware of every category of
damages the jury is asked to calculate. Be sure to address past losses,
future losses (medical bills, wage loss), any other economic damages and
any noneconomic damages, such as mental anguish and pain and suffering.
If punitive damages are allowed, make sure there is a space for
calculating them, with very clear instructions so the jury is less
likely to become confused. Addition ally, be sure that any consortium
claims are addressed with space for calculating economic damages, e.g.,
loss of a substantial portion of a savings account because of a spouse
being injured and unable to work, as well as noneconomic damages, such
as loss of the “society and comfort” of a spouse.
Unlocking Success
Knowing which key documents to prepare
leading up to a civil jury trial is crucial for personal injury
paralegals. Drafting these documents will be a great help to your
attorneys, keeping them organized, on track and ready for every stage of
the trial.
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