Scoptur's Law: Thoughts about case planning, strategy, preparation and presentation

Wisconsin State Bar article

2011-10-24T14:48:00.000-07:00

I was recently interviewed for an article on trial consultants for the Wisconsin State Bar online magazine. I have pasted the article for you below.

Assessing litigation outcomes: Trial consultants divulge forecasting and communication techniques

Trial consultants help litigators improve their chances of success in the courtroom with tools to help forecast juror perceptions and communicate more effectively. In this article, learn how they do it from two seasoned litigation consultants.

By Joe Forward, Legal Writer, State Bar of Wisconsin

Oct. 16, 2011 – Trial consultants give lawyers advice on many aspects of litigation, including jury selection, case presentation, and trial strategy. But what is the wisdom these consultants impart?

Milwaukee attorney Paul Scoptur of Aiken & Scoptur S.C. is a civil trial lawyer and trial consultant who assists litigators across the U.S. and Canada. He says trial consultants can help lawyers unearth the various thorns of a case, and forecast jury behavior.

For instance, trial consultants like Scoptur use information from mock trials and focus groups to uncover juror bias, perceptions, and opinions in a particular venue. This type of forecasting can give litigators insights when developing trial strategy, noting the particular pieces of a case that resonate with jurors.

“You don’t want to find out what 12 people think about your case on the first day of trial,” said Scoptur, who also teaches pretrial and trial skills at Marquette University Law School. “That’s a little late.”

These activities can also help attorneys leverage settlement negotiations if there’s data to forecast a potential jury’s decision at trial, and give lawyers clues on what communication strategies to use at trial, says litigation consultant Alan Tuerkheimer of Zagnoli McEvoy Foley LLC in Chicago.

“Some litigators just want to see the raw data from a focus group or mock trial to get a sense of damages that are possible,” said Tuerkheimer. “This might serve as a reality check.”

Tuerkheimer and Scoptur are members of the American Society of Trial Consultants (ASTC), an association of professionals with education and training in fields like psychology, communications, sociology, and law. A big part of what they do centers on assessing juror perceptions.

Focus groups and mock trials

A focus group is a sort of “market research” tool used to acquire information on the perceptions of potential jurors. Consultants conduct focus groups to assess opinions about certain issues or scenarios that correspond to the facts of case.
Scoptur says focus groups and mock trials help litigators learn what he terms “juror-proof”– the proof that is important for jurors to see and hear before they decide in favor of a party to the case.

“The juror-proof we learn from these focus groups can be surprising,” Scoptur said. “Unlike lawyer-proof, which gets you past summary judgment, juror-proof helps lawyers identify facts or aspects jurors view as important, which drive deliberations.”
Focus groups and mock trials can highlight aspects of a case that lawyers view as unimportant or irrelevant, but may be important and relevant from the juror’s perspective.

Scoptur reminds attorneys that jurors view facts differently than lawyers. “Without a test run (or two) to identify juror-proof, litigators may miss important juror perceptions or themes that can impact trial strategy,” Scoptur said. “It’s important to test drive your trial story.”

Not many Wisconsin lawyers use trial consultants or conduct focus groups, according to Scoptur. There may be a perception that consultants are too expensive, or unnecessary. But many consultants offer discrete services that are affordable, and they can offer very critical information, he says.

That includes information on jury selection. Scoptur and Tuerkheimer say lawyers often overlook the importance of voir dire, and doing so can be detrimental to the case in the long run.

Voir dire

Voir dire allows litigators to identify statutory, subjective, and objective juror bias. In Wisconsin, both sides can strike three potential jurors, and can challenge jurors for cause. Trial consultants help litigators root out bias unfavorable to the client’s case before trial.

“You can have the best case in the world, but if you have a bad jury you’re going to crash and burn,” Scoptur said. “In many cases, lawyers don’t ask the right questions to learn about particular jurors.”

He says it’s hard to overcome juror bias at trial. “If a lawyer doesn’t identify that bias early, it is unlikely he or she will change that person’s mind. And jurors will bring perceptions, biases, and attitudes to the deliberation table. We see that in focus groups all the time.”

Tuerkheimer, who has a Masters in Psychology, says many trial consultants are trained or educated on human behavior and response, and use jury research to extract information useful in voir dire.

He notes that a lawyer’s demeanor and style will greatly impact the lawyer’s ability to empanel a jury favorable to the case. Letting jurors talk, making them feel comfortable and asking the right questions, will bring more to light.
And, voir dire is the attorney’s best chance to make a good impression, to bond with jurors, he says.

“It’s important to develop the relationship at voir dire, because effective communication is crucial when the trial begins,” Tuerkheimer said. “If they like you, they are more likely to listen to your message, and absorb the information you want them to remember.”

To improve voir dire skills, Scoptur and Tuerkheimer urge lawyers to get continuing legal education on voir dire, talk to skilled lawyers, and watch lawyers in the courtroom. “Try to see what works and what doesn’t,” Scoptur said. “A good voir dire can make all the difference. And so can a bad one.”

Making the case

Trial consultants also teach lawyers effective strategies of communication based on the circumstances and the jury pool. They help litigators mold the jury’s perception of certain facts, especially in complex cases where jurors must digest massive amounts of information.

For instance, Scoptur says jurors will often remember what lawyers highlight first, the so-called spotlight effect. If the spotlight is on the plaintiff, the jurors tend to filter the facts through their perception of the plaintiff. “If I’m a plaintiff’s attorney, I want to throw a spotlight on the defendant.”

Consider Scoptur’s focus group on a breast cancer case. A lady goes to the doctor, the doctor feels a lump, but the doctor says she’s fine, and the lady goes home reassured. Of course, she has breast cancer. And now the focus group is asked to respond to the plaintiff’s actions.

“People come up with an idea in their mind of how this wouldn’t have happened to them,” Scoptur said. “It’s called defensive attribution. Every single person in the focus group said, ‘I would have gotten a second opinion.’ Well, that’s not necessarily true. But they construct a story on how this wouldn’t happen to them. And then, of course, they blame the plaintiff for not getting a second opinion.”
Scoptur says a result like this shows the plaintiff should focus the jury’s attention on the doctor first.

“If I begin by talking about the doctor who felt the lump, and should have ordered a biopsy, I am focusing on the bad conduct of the doctor,” Scoptur said. “Jurors generally filter evidence through what they hear first. So they’ll accept what reinforces the bad conduct of the doctor and reject what is contrary to it.”
Tuerkheimer says trial consulting all goes back to communication. “We try to help lawyers present a story with arguments and themes that resonate, and communicate it in the most effective way.”

That might include visuals to help jurors understand the message and other strategies to address juror diversity. “For instance, younger generations certainly absorb information differently than older ones. Lawyers must account for that when communicating the message.”

Related

● Want more insight from a trial consultant? Check out the State Bar of Wisconsin PINNACLE Business Counsel Institute, Nov. 31 - Dec.1, in Milwaukee. Bill Healy, a trial consultant at DecisionQuest in Chicago, will speak on the topic of “jury deliberations.”

● Want to observe a real trial, including jury deliberations? You can at the 22nd Annual Institute of Trial Practice (ABOTA). From opening statements to jury deliberations, you’ll get in-depth analysis on various aspects of trial practice. The program is Friday, Nov. 4 from 8 a.m. to 5:45 p.m. at the Olympia Resort in Oconomowoc. Tuition is $229. Earn 9.5 CLE credits. Click here to view the schedule and/or to register.

● Want more information on focus groups? Check out trial consultant Paul Scoptur’s article, “What are Focus Groups Anyway?” in Massachusetts Lawyers Weekly (starting on page 2), which mentions the top 10 reasons lawyers don’t do focus groups, and why they should:

● Want to improve your voir dire skills? Check out Litigation Consultant Alan Tuerkheimer’s Wisconsin Lawyer articles on the subject: “Persuading Jurors During Voir Dire” and “Politics in Civil Jury Selection.”

Walker set out to trample citizen's rights in Wisconsin

2011-10-01T09:36:00.000-07:00

WAKE UP CITIZENS OF WISCONSIN- DEATH OF CIVIL JUSTICE IS NEAR AS GOVERNOR PLACES IT ON THE GUILLOTINE

I have felt it coming ever since he was elected Governor of Wisconsin in November 2010. It began with tremors, that led to outrage (voiced prominently by Unions), which has led to an all out assault by him against the citizens of Wisconsin.

Under the guise of “tort-reform” and “job creation”, he has, and continues to, demolish accountability and responsibility for those businesses, corporations, and reckless individuals that injure others. But, he has traveled the state and found that employers and workers want a sense of certainty. However, the only thing certain is that he is out to undermine our civil justice system and prevent persons injured in Wisconsin from seeking compensation they rightfully deserve.

He has already made it incredibly costly (and near impossible) to pursue doctors and nursing homes that negligently or intentionally injure patients. These people now have little to no recourse for the injuries they sustain due to such carelessness because somehow, his “protections” create jobs.

He has put a severe cap on punitive damages. The award of such damages is to punish the person/company that committed the wrong and to show that tortfeasor that such conduct is reprehensible and should never happen again. Now, because “screw accountability” is his motto, said individuals or corporations may merely receive a slap on the wrist even though their actions killed a person, and the individual or corporation knew their actions could result in death.

Now he attempts to pass legislation, which again hurts all citizens. But hey, hurting citizens is fine with him as long as he can later say, “I created jobs.” These proposals are LRB 2670, LRB 2890, LRB 2939, LRB 2966 and LRB 2838.

He wants to provide immunity from lawsuits to manufacturers and sellers of medical devices/drugs if: their product received approval from the FDA (ever heard of recalls or false tests?); in a failure to warn case, the labeling was made available to the consumer, the person who prescribed the drug/device, and the labeling was in compliance with established FDA standards; and no defect in design if it undergoes a strenuous (like a tough work out?) FDA approval process.

Again, this is in the name of “tort reform” (which really means “Hey, companies, come to Wisconsin- you can produce products that kill my citizens but I, the Governor, have made it so no one will sue you and you can keep on killing) and “job creation” (which is a fancy term of art meaning screw accountability, lets make money and it does not matter at whose expense).

So WAKE UP WISCONSIN, and oppose these proposals. “Tort reform” and “job creation” are just terms a sneaky politician uses to lure you in to favoring his goals and forever abdicating your ability to obtain civil justice for an injury you sustain at no fault of your own.

Lawyer recounts his jury service

2011-07-18T07:38:00.000-07:00

I came across this very interesting article written by a civil litigator in Minneapolis. He recounts his experience serving on a jury in a personal injury case. It affirms many of the things we see in focus groups, especially jurors bringing their life experiences into the decision making process. I think you will find it interesting.

Role reversal: A lawyer's jury service

Hundreds of us quietly gathered in the massive waiting room on the basement level of the Hennepin County Government Center. Holding our jury summonses in one hand and constantly checking our smart phones in the other, we listened as a veteran court employee told us how to fulfill our civic duty. After she finished, I raised my hand.

“If I’m on a panel and I get stricken, am I released from service? Can I go?”

“Sorry, but no,” she responded, “you come back down here and the process starts all over again.”

That was exactly what I didn’t want to hear. Since I’m a lawyer, I knew I would never be left on a jury. So, for the next two weeks, I would bounce back and forth between the courtrooms upstairs and the jury waiting room downstairs.

Ten minutes later, I found myself in the 19th floor courtroom of Judge Marilyn Rosenbaum, sitting with 11 other Hennepin County residents, answering questions from the judge and the defense attorney about my job, my experience with injuries and car accidents, and my attitudes toward insurance companies. After a break, the judge read the names of the four people who had been released from service. I was sure this would be the first of many strikes for me, the first go-round on the carousel, from courtroom to jury waiting room, over the next two weeks.

Being excused from the jury was a virtual certainty. Not only had I disclosed that I was a lawyer, but when the judge mentioned that this was a civil case, I said that I did civil litigation. When it became clear that this was an injury case, I said that I had worked on cases where plaintiffs had alleged injuries. The jurors’ attitudes about insurance came up, and I said that my father was a retired insurance company attorney. I even said that I had a case pending in front of Judge Rosenbaum, to which she responded “I wondered when you were going to bring that up.”

After a break, it came time to tell the potential jurors who had been excused by the plaintiff and defendant. The court pointed to the taxi driver who had recently been in a car accident, the information technology specialist who had a few nagging sports injuries, the retired mother of six who had recently undergone knee surgery, and the machinist who said almost nothing during voir dire. I was going to serve on the jury. I was flabbergasted.

The case was straightforward. The plaintiff—a former certified nursing assistant—was stopped at a stop sign in Minneapolis when she was rear-ended by the defendant. She claimed that the collision caused relatively minor back and neck injuries. She also alleged that the accident caused a rotator cuff tear or, at a minimum, aggravated a preexisting tear that had become asymptomatic. She charged that, because of the accident, she needed to undergo shoulder surgery. Her lawyer asked the jury for an award that would pay for missed work, medical bills and pain and suffering, mostly due to the shoulder trauma.

The defendant admitted that the collision was her fault. But she was still sympathetic, since her behavior at the scene had been exemplary and she was riding with her young student-mentee at the time. The defendant’s lawyer pointed out that the plaintiff’s rear bumper suffered only the tiniest crack. While he conceded that the plaintiff had some neck and back pain as a result, he also showed that the plaintiff did not complain about shoulder pain until considerable time had passed. The defendant’s lawyer was also critical of the plaintiff’s doctor’s opinion that the collision caused the plaintiff’s rotator cuff injury. After all, an MRI showed that the tear to her rotator cuff was present a year before the incident. And the defendant’s expert testified that repeated lifting (the very kind that nursing assistants do to help their patients), not sudden events, causes rotator tears.

In other words, it was a run-of-the-mill injury case. Not a complex fraud case or a thrilling John Grisham-style courtroom drama. But to a litigator like me, the interaction among jury members was fascinating, and the lessons learned would apply equally to bigger, more complicated cases.
Camaraderie & Deliberations

The trial lasted two days. Not a lot of time, you would think, for jury members to form bonds. But I found that there is a certain built-in camaraderie to serving on a jury. Also, there is a lot of waiting around in the courthouse hallway during a trial. During these breaks, the jurors talked about what it’s like to raise twin boys, how hard it is to get a ticket to Target Field, whether digital photography is better than “old school” film, whether public sector workers in Wisconsin should retain their collective bargaining rights, and which color of finger nail polish looks best. In short, it didn’t take long for the jury to become a tight-knit group.

Once deliberations started, things got really interesting. My fellow jurors immediately elected me—“the lawyer”—as foreperson. They called me “the lawyer” because no one remembered my name. Although it had been mentioned once or twice during voir dire, I wasn’t offended. I couldn’t remember any of the other jurors’ names, either. This, it turns out, is one of the odd things about being on a jury: Jurors are friends and strangers at the same time.

I thought it made sense to start our deliberations by trying to separate the plaintiff’s back and neck injuries from her alleged shoulder injury. But several of the jurors wondered why we would use this approach. “The lawyers said her back and neck injuries were not at issue,” one of my fellow jurors said. “To me, that means they’re not part of the trial. We aren’t supposed to award her anything for back and neck injuries.”

I was pretty sure this was wrong. While it was true that the lawyers had said the back and neck injuries were “not at issue,” that was a phrase that I could recall uttering in court, too. When I said it, I meant that both sides agreed on a certain fact or point of law. I did not mean that the fact or point of law was not material to the case.

No other juror interpreted the lawyers’ statements my way, and when we checked, we found that the jury instructions were silent on the issue. So, we wrote the judge a question. Turns out, “the lawyer” was right. The judge instructed us to consider any injury from the collision, whether it was an injury to the plaintiff’s back, to her neck, to her shoulder, or elsewhere. The lesson for attorneys: explain to the jury exactly what you mean. Don’t assume they understand your shorthand terms, like “not at issue.”

There were several things that struck me about the deliberations that followed. First, the jurors took their job seriously. More than a handful of times, I heard comments about “making sure we get this right.”

Second, jurors were intensely curious about facts that had been hinted at, but not fully developed. For example, there was a single sentence of testimony about the plaintiff’s impressive weight loss since the accident. If she was heavy at the time of the accident, could that have contributed to her shoulder pain? There was no evidence presented at trial to help answer that question, but that didn’t stop the jurors from wondering.

Also, there was a brief mention during trial that the plaintiff had been clutching the driver’s wheel tightly at the time of the accident, which may have caused her rigid arm to dig into her shoulder socket at impact. Yet there was also testimony that she did not see the defendant’s car coming or anticipate the impact. We wondered: why would she have been gripping the wheel tightly if she wasn’t expecting an impact? Again, there was so little evidence presented on this point, all we could do is wonder.
Jurors’ Perspectives

Jurors were also curious about the legal process. They wanted to know whether the defense lawyer was being paid by the defendant or by an insurance company. They wanted to know how much money the plaintiff’s lawyer would get if his client won. They wanted to know why portions of videotaped depositions had been cut out. And they directed all of their questions to “the lawyer,” even though my usual answer was “I’m sorry, but I really don’t know.” This, more than anything, is why I would caution any litigator to strike lawyers who show up on a jury panel. In a legal setting, nonlawyers are bound to defer to an attorney.

Also striking was the extent to which jurors drew on their own experiences. One juror had a son who had torn his rotator cuff playing minor league baseball. This juror agreed with the defendants’ doctor about the usual cause of rotator cuff injuries. “Rotator cuff tears come from repeated use, not from one traumatic event,” he said.

Similarly, the jurors who had been in car accidents—including myself—saw the collision through that lens. “My accident was worse than hers, and I didn’t get hurt,” one juror said. Interestingly, during voir dire, the judge and lawyers had not asked the potential jurors about their experiences in car accidents in general. They only asked whether jurors had been involved in car accidents where someone was injured. As it turns out, it would have been equally enlightening to hear about the jurors’ experiences in car accidents where no one was injured. After all, a juror who has a car accident where everyone comes away unscathed might be more likely to doubt the alleged injuries of a plaintiff, especially if the juror’s accident was more violent.

When it came to testing credibility, I was impressed that my fellow jurors looked mostly to whether a witness’s testimony matched the rest of the evidence. The jury did not focus on courtroom demeanor, or which witnesses they “liked.” For example, the plaintiff reported to one of her medical providers that the defendant was driving 30-35 miles per hour at the time of the collision. This was not consistent with the barely noticeable damage to her car, and made it appear as if the plaintiff stretched the truth when talking to a doctor. Understandably, this hurt the plaintiff’s credibility, even though all the jurors seemed to agree that she was composed and likeable on the witness stand.
Exhibits & Lawyers

The jurors were clearly not impressed by lawyers’ cross-examination techniques that merely exposed minor flaws in the witnesses’ testimony, without touching on issues that were vital to the case. For example, the defense attorney was in a huff that the plaintiff’s doctor apparently did not have all of the plaintiff’s medical records before he performed rotator cuff surgery on the plaintiff. But there was little evidence showing that this distorted his diagnosis of the plaintiff. Similarly, the plaintiff’s lawyer was appalled that the defendant’s doctor had written two reports, one of which attributed 25 percent of the plaintiff’s rotator cuff tear to the accident, and one of which said the tear had nothing to do with the accident. But when the doctor wrote the second report, he had the advantage of examining the plaintiff, while the first report was based only on medical records. The jury was satisfied that a doctor might modify his opinion, and was more concerned with what his opinion was at the time of trial than what it had been earlier.

One eye-opening aspect of deliberations was the importance of the exhibits that were with us in the jury room. I took on the task of going through the medical records one-by-one, reporting to the group any significant information. (Later, another juror double checked me.) More than the live testimony, this process allowed the jury to create a narrative and a time line that helped with deliberations. For example, our review of the medical records confirmed that the plaintiff had not complained of shoulder pain until long after the collision. It also showed that the plaintiff’s existing rotator cuff tear became no bigger as a result of the accident. Also, we saw that the plaintiff was involved in several accidents over the past 15 years, and visited a lot of providers about a host of medical issues—facts that had been mostly suppressed during the trial. I wondered why the plaintiff’s lawyer would have fought to keep these facts out of the live testimony, only to have them revealed to the jury through the exhibits.

Litigators and judges who struggle with the wording of special verdict forms and jury instructions will be gratified to hear that they, too, were significant. Nonlawyers are not typically as concerned about parsing language as lawyers are, but this group spent significant time trying to understand the meaning of key words. For example, the jury instructions stated that a person with a preexisting injury “is still entitled to recover damages for injuries directly caused by the accident.” We wondered what “directly caused” meant. Later, the instructions said that the plaintiff was entitled to recover “for any aggravation of that injury or condition.” That sealed it. An “injury” was “directly caused” by the accident if it resulted in an “aggravation” of a preexisting medical condition.
The Verdict

In the end, deliberations took about three hours. We probably could have arrived at a verdict sooner, but we didn’t rush because we wanted to “get it right.” We decided that the plaintiff had suffered from back and neck injuries for about four weeks following the accident, which prevented her from working as a nursing assistant during that time. We awarded her a small sum of money that we felt would adequately compensate her for the missed work time and the minor injuries. But we did not think that the low-speed accident had caused (or aggravated) her rotator cuff tear, so we did not award her damages related to her shoulder.

When it came time for the reading of the verdict, the other jurors were disappointed to learn that both of the parties had waived their right to appear. On TV, the parties are always standing in the courtroom when the verdict is dramatically read, and this is what the jury expected. But I wasn’t surprised. A former partner once told me that nothing good can come of appearing for the reading of the verdict. “If you lose, you have to pretend to be earnest when you congratulate the other side, and if you win, it’s unprofessional to scream and shout for joy. Either way, it’s uncomfortable. And if the jury holds it against you if you don’t show up, they can’t do anything about it, since they’ve already made their decision.”

The judge read our verdict to the empty courtroom, and asked each of us, one-by-one, to confirm that we agreed with the decision. When she asked if any of us had a question, I said “How often does a lawyer remain on the jury?” “In my 20 years on the bench, I think you’re the first civil litigator to sit on a civil jury,” she replied. Then she told us that we might get a call from the lawyers, and, if we did, it was up to us whether to talk with them.

Two hours later, the phone on my desk rang. It was the defendant’s lawyer. “Counselor, am I ever jealous of you! You had an experience that any lawyer would love to have,” he said. We talked for an hour.

The plaintiff’s lawyer never called.

The Wisconsin Supreme Court resorts to violence

2011-06-26T12:11:00.000-07:00

Anyone who has been following Wisconsin politics knows it has been, well, interesting. Marches on the Capitol, Senators leaving the state, midnight votes, there has been all kinds of things going on here in Wississippi. Now we have a Supreme Court judge allegedly putting a chokehold on another Supreme Court judge. His defense? He was defending himself, sort of like she flung her neck into his hands. At least its entertaining:-)

Supreme Court Justice Ann Walsh Bradley late Saturday accused fellow Justice David Prosser of putting her in a chokehold during a dispute in her office earlier this month.

"The facts are that I was demanding that he get out of my office and he put his hands around my neck in anger in a chokehold," Bradley told the Journal Sentinel.

Sources told the Journal Sentinel two very different stories Saturday about what occurred. Some confirmed Bradley's version. According to others, Bradley charged Prosser, who raised his hands to defend himself and made contact with her neck.

A joint investigation by Wisconsin Public Radio and the Wisconsin Center for Investigative Journalism first reported on the incident early Saturday, stating that Prosser "allegedly grabbed" Bradley around the neck.

Why you should never go to the hospital in July

2011-06-23T16:04:00.000-07:00

Came across this article, thought it would be of interest. I have personal experience with this with 2 of my kids.

Do not get sick in July. Why? You might die.

A recent study published by the Journal of General Internal Medicine reported a 10 percent spike in teaching hospital deaths during the month of July due to medical errors. We call this spike “The July Effect” and we attribute it to the influx of new interns and residents.

Typically, medical students graduate in June and begin their first year of residency training — internship — in July. This group of eager new interns invades the hospital to learn, care for patients, and make medical decisions. One problem. They don’t know what they’re doing.

Like most interns, I arrived with four years of medical school under my belt, an M.D. after my name, and virtually no practical knowledge of medicine. Although I wore the long white coat of a doctor, I kept my pockets packed with condensed medical manuals that we called our “peripheral brains” to make up for the lack of knowledge held in my actual brain. Thank God for these manuals. Otherwise I would have been part of “The July Effect.”

My first night on call. I walk down a dimly lit hallway toward my call room, the only sound the intermittent beeping of a heart monitor. Suddenly, a loud siren rings overhead. A nurse rushes out of a room right in front of me.

“Call a code!” she yells to a secretary. The nurse looks in my direction and asks, “You’re a resident, right? I need you to run this code!”

I look left, right, and behind me.

Gulp. She’s talking to me.

“OK,” I say, hoping that she hasn’t noticed that my voice has leaped an octave.

The truth is, I’ve just finished orientation, which included a course in Advanced Cardiac Life Support, but I have not spent a minute reviewing the manual. Confession: I’m not feeling all that confident.

I rushed with the nurse into the patient’s room. I see on the cardiac monitor that the patient is in ventricular fibrillation, the heart rhythm that immediately precedes death. Squeezing an oxygen mask, a nurse stands above the patient’s head. A second nurse runs medications into an IV.

“What should we do, doctor?”

My mind goes blank. I have absolutely no idea.

I pull out my “peripheral brain,” flip to the section on “ventricular fibrillation.” Aha! Got the treatment. Cardioversion - commonly called electric shocks.

[By cardioversion, I'm using a general term for restoring a heart to its correct rhythm. ]

“Get me the paddles!” I say, my voice rising.

The nurse shoves the paddles into my hands and sets the power to the appropriate level.

“Clear!” I yell, and place the paddles on the patient’s chest.

“STOP!” the nurse screams.

She grabs my hands and moves the paddles to a different spot on the patient’s chest.

One more second and I would have shocked his liver.

“Clear!” I yell again, and press the defibrillation button.

The patient jerks slightly and for an instant the heart monitor goes wild. Then it completely stops. We stand still, staring at the monitor for what seems like minutes, awaiting his new cardiac rhythm.

Beep… beep… beep.

Normal.

He’s saved.

I let out a breath of relief.

Within seconds, several residents enter the room and take over for me. I gladly step aside. I go back to my call room, both exhilarated that I’ve saved a patient’s life and freaking out that I nearly made a mistake would have cost it. I’ve learned my lesson. I pull out my heart book and study it cover-to-cover until dawn.

Everyone - even doctors, especially doctors - have to learn and train in order to become proficient. Interns start out as rookies, not seasoned veterans. Experience takes time.

So if you have to go to a hospital in July, treat the new interns with patience and respect.

Then check with your nurse to make sure they know what they’re doing.

Dont be afraid to ask if the lawsuit is frivolous

2011-06-04T14:00:00.000-07:00

Sometimes we are afraid of the answer. "Is this a frivolous lawsuit?" "Yes."
So what if the defendant thinks it is?
I have found in my experience, the defendant usually says no.
Here is a clip from a recent deposition where I asked the defendant doctor just that.

Please check out my website

2011-06-04T13:22:00.000-07:00

I have figured out how to add video content to my trial consulting website. Im sure it will go slow, but my aim is to add short video clips from presentations I have given that may be of interest. I also want to add deposition clips that show different deposition techniques that have worked for me.
You can access them from the home page by clicking the link "Video presentations."

So sit back, grab a handful of popcorn and let me know what you think.

I'm back

2011-03-19T16:29:00.000-07:00

So, I had the privilege to teach at Harvard last week at the Ultimate trial skills college. As usual, it was an incredible experience. Highlight? Participant did a closing from the point of view of a dog that was shot in a neighbor/neighbor dispute. Had me in tears.

Aren't conservatives against governmental intrusion and for state's rights?

2011-02-14T10:37:00.000-08:00

It has always baffled me that conservatives have pushed for Federal tort deform. It seems such a contradiction to the states rights belief that conservatives have. Sure, we all know the real reason behind Federal tort deform, but still...

Anyways, I came across this blog posting from William A. Jacobson, Associate Clinical Professor, Cornell Law School and I am passing this along to you.

If You Hate The Health Care Mandate, How Can You Love Federal Tort Reform?

Medical malpractice tort reform is one of those supposed remedies frequently mentioned as a cure to lowering health care costs.

Currently being debated is H.R. 5 (most recent mark up here) which would create a federal medical malpractice reform modeled on what has taken place in California, including caps on non-economic and punitive damages and attorneys fees.

Put aside whether you support tort reform and even whether it is effective. (If you want to know, I have very mixed feelings on the policy. On the one hand, I am disgusted with the culture of ambulance chasers, something I consider an insult to the people who actually do suffer from malpractice and deserve compensation; so I am very sympathetic for the need to do something. On the other hand, I am against arbitrary caps which deprive those who need the compensation most. There has to be a third way between the free-for-all we now have and inflexible caps.)

Professor Michael Dorf of Cornell Law School raises a point -- one I have thought about before but never written about -- that there is a potential inconsistency between those committed to a limited reach of the Commerce Clause when it comes to the federal health care mandate but not federal medical malpractice reform:

"But there's also an interesting intra-conservative fight potentially brewing here. Medical malpractice lawsuits, after all, seek damages in tort, an area of law over which states have traditionally exercised sovereignty. Folks like me, who think that Congress has broad latitude to regulate under the Commerce Clause, have no difficulty seeing the package of federal limits as constitutional, even if we don't think it's desirable policy. But what about all of those self-styled patriots in tri-corner hats who go on incessantly about how the federal government is a government of enumerated powers and worry about the modern Commerce Clause jurisprudence making the feds omnipotent? Shouldn't they be worried about this federal government takeover of state tort law? You betcha....

When push comes to shove, most elected officials are fair-weather federalists. They tend to invoke states' rights when they dislike the substance of federal policy and to forget about states' rights when they like the substance of federal policy. But at least in the short run, it will be interesting to watch the intra-conservative debate on these and other issues.

Is this a fair point?

If we are against the federal government forcing us to purchase health insurance, shouldn't we also be against the federal government telling us which state common law remedies we can pursue and on what terms? Isn't this a matter for the states?

As pointed out by Dorf, an article in Politico highlights two Republican Congressmen who are raising this very issue:

The House Judiciary Committee probably will be able to approve a medical malpractice reform bill next week, but Republicans are facing one concern from their own side: Don’t mess with Texas.

At the markup Wednesday, two committee Republicans - Ted Poe and Louie Gohmert - raised concerns that the bill might override states' own limits on medical liability lawsuits. They raised doubts that the federal government has the power to do that under the Commerce Clause, and they want to make sure the bill doesn't violate states' rights under the 10th Amendment.

Unlike the Democrats who oppose the bill - on the grounds that medical lawsuit limits are unfair to the victims of malpractice - Poe and Gohmert aren't opposed to the idea of tort reform. Poe just wants to make sure Texas gets to keep its own law, which caps "pain and suffering" damages at $250,000, and Gohmert wants to look out for all of the states.

“The question is: does the federal government have the authority under the Commerce Clause to override state law on liability caps? I believe that each individual state should allow the people of that state to decide – not the federal government,” Poe said in a statement after the markup.

I think there are distinctions which could be drawn between the mandate and tort reform, since tort reform does not require that one purchase a product. Most people who are against the mandate would acknowledge that the federal government can regulate the health care system, but that the mandate is a step too far.

On the other hand, regulating the tort system is not quite the same thing as regulating the health system, although there is a relationship between the two.

Bottom line. The mandate must go. There is no reason to give up on the clear-cut issue just because other issues are less clear.

Tort reform needs a careful airing of the constitutional issues before any vote; but at this point I'd be inclined to leave it to the states. If you don't like your state's tort system, do the same thing you would do if you didn't like its tax or other systems: Move.

(Please, no "consistency is the hobgobblin of little minds" comments).

Update: Thanks to commenter Showbiz111 for pointing out that I left the word "foolish" out of the quote in parentheses immediately above, and thereby did not do justice to Emerson's text:

"A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines. With consistency a great soul has simply nothing to do. He may as well concern himself with his shadow on the wall. Speak what you think now in hard words, and to-morrow speak what to-morrow thinks in hard words again, though it contradict every thing you said to-day. — 'Ah, so you shall be sure to be misunderstood.' — Is it so bad, then, to be misunderstood? Pythagoras was misunderstood, and Socrates, and Jesus, and Luther, and Copernicus, and Galileo, and Newton, and every pure and wise spirit that ever took flesh. To be great is to be misunderstood."

Hot coffee

2011-01-30T13:11:00.000-08:00

On another front, Hot Coffee, a short film produced by Susan Saladoff, was screened at the Sundance Film Festival and was picked up by HBO in an exclusive 2 year deal.
You can read about it at http://www.deadline.com/tag/hot-coffee-hbo/

The movie is a documentary which focuses on how corporations have used the memory of outlandish legal verdicts as a way to press for tort reforms and avoid jury trials through arbitration on cases that actually have merit.

Take a look at the links and pass them on.

As an example

2011-01-30T13:05:00.001-08:00

The new legislation creates special rules for special people. Get a load of this. The new special rules exempt doctors from criminal liability if they harm another by the negligent operation or handling of a dangerous weapon, explosives or fire as long as he/she is acting within the scope of his or her practice or employment. So now a doctor can escape accountability if they negligently blow up a patient or set one on fire. Nice.

In addition, a health care provider acting in the scope of his or her practice or employment who commits an act or omission of mere inefficiency, unsatisfactory conduct, or failure in good performance as the result of inability, incapacity, inadvertency, ordinary negligence, or good faith error in judgment or discretion, is immune from criminal liability. Incapacity, like being drunk or on drugs? That makes me feel real safe.

Destruction of Wisconsin's Tort Law

2011-01-30T12:53:00.000-08:00

Well, it's here. Our new Republican legislature has passed sweeping changes in our tort system under the illusion that it is a job creation bill. I'm not the smartest person in the world, but how does a limitation on damages in nursing home cases, Daubert, limitations on products cases, hiding state surveys and investigations and limiting people's access to a jury trial create jobs? It doesn't. But here we are, Texas north, with more destruction on the way.

I'm tired of the attacks on what we do, and I'm tired of the attacks on people who are hurt due to the neglect of others. Every act of negligence is due to someone breaking a safety rule, yet certain segments of our society believe that wrongdoers need special protection under the guise of stopping frivolous lawsuits. No one, even lawyers, like frivolous lawsuits. However, these deforms will limit access and justice to those who have meritorious claims and are deserving of getting justice.

The new issue of The Jury Expert is out

2010-09-22T17:10:00.000-07:00

Hi all, the new issue of The Jury Expert is out. Some interesting articles, including an article on the Millennium Generation, an age group that I consider to be "interesting" to say the least, and an article from the defense perspective of arguing damages.
Click on the link above and enjoy!

Just got back from Vancouver

2010-07-15T15:39:00.000-07:00

I was at the AAJ convention and gave a talk on "Using Medical Literature in the Back and Neck Case." We all have handled the whiplash case. We all have heard the "whiplash injuries heal", "pre existing condition", "pain is subjective" and the "impact was too low to have caused an injury" defense in automobile accident cases.

Well, these peer reviewed medical articles refute those defenses. Take a look at my presentation and give me a call if you have any questions.

Can Back & Neck Injuries Be Permanent or Do They All Heal After 18 Months?

Defense Medical Examiner Report Stating That Back & Neck Injuries Cannot Be Permanent

“ The patient’s clinical examination at this time is unremarkable and does not define any objective abnormalities which would correlate with this patient’s complaint.”

“ This patient has a soft tissue or muscle strain type of mechanism. Such conditions are purely subjective in nature and routinely heal over time. Such healing typically occurs in a period of several months and even offering the patient the broad benefit of the doubt, there would be no way that a muscular pain mechanism could be attributed to a traumatic event in excess of eighteen months.”

“ It’s my opinion that this patient’s pain syndrome beyond May 2007 would no longer be attributed to any soft tissue injuries that occurred as a result of the accident.”

Macnab, Ian, M. B., Ch.B., F.R.C.S., Symposium on Disease of the Intervertebral Disc., The "Whiplash Syndrome", Orthopedic Clinics of North America, Vol. 2 No. 2, July 1971.

 266 patients were followed up more than 2 years after claims resolved
 121 patients (45%) continued with neck or back symptoms
 Settlement of legal claims didn’t relieve symptoms in 45% of the patients

Hohl, Mason, MD.., Soft Tissue Injuries of the Neck in Automobile Accidents, The Journal of Bone and Joint Surgery, Vol. 56A, No. 8, December 1974.

 146 patients who had no pre-existing neck problems were followed up more than five years after soft tissue injury
 44 people had no claim for damages
 63 patients (43%) had residual problems because of soft tissue injury of the neck
 A significant % had symptoms well after their claims had been resolved

Norris and Watt, The Prognosis of Neck Injuries Resulting From Rear-End Vehicle Collisions, The Journal of Bone and Joint Surgery, Vol. 65-B, No. 5, November 1983

 61 patients were followed 2 years post-accident in 3 groups
 Group 1: pain complaints with normal exam
 Group 2: pain complaints, reduced ROM
 Group 3: pain complaints, reduced ROM and objective neurological loss
 56% of Group 1, 19% of Group 2 and 10% of Group 3 were pain free at the 2 year mark
 20% of patients in all groups with persistent neck pain lost time from work
 70% of patients in Group 3 and 25% in Group 1 with persistent neck pain said it interfered with hobbies and recreation

Deans, G.T., Magalliard, J.N., Kerr, M. and Rutherford, W.H., Neck sprain-a major cause of disability following car accidents, Injury: The British Journal of Accident Surgery (1987) Vol. 18/No. 1, 10-12

 137 patients with neck injury were followed up between 1 and 2 years post-accident
 36 (26.3%) still had pain with 31 (22.6%) having occasional pain and 5 (3.7%) experiencing severe continuous pain
 “The resulting pain (from soft-tissue injury of the neck) may continue for a long time and seriously disrupt the working and social activities of patients.”

Maimaris, C., Barnes M. R., Allen, M. J., 'Whiplash injuries' of the neck: a retrospective study, Injury: The British Journal of Accident Surgery (1988) Vol. 19/No. 5, 393-396

 102 patients were followed up 2 years post- accident for neck injury
 67 patients were asymptomatic while 35 patients (33%) continued to suffer disability
 In the asymptomatic patients, pain resolved within 2 months; pain persisting more than 2 months usually was chronic
 Many symptomatic patients continued to have pain after resolution of legal claims

Hodgson, S. P. and Grundy, M., Whiplash Injuries: Their Long-term Prognosis and Its Relationship to Compensation, Neuro-Orthopedics 7, 88-91 (1989)

 40 patients were followed 10 - 15 years post-accident for neck injuries
 31% had long term neck problems and only 10 out of 40 improved after resolution of their claims
 44% had to change work duties and 62.5% had to modify leisure activities
 12.5 years after injury, 66% had significant residual problems, even after resolution of legal claims

Conclusion:

 “ We would conclude that a whiplash injury has a significant likelihood of resulting in long-term symptoms which in the majority of cases may be physical in nature, and that the settlement of compensation is unlikely to affect the long-term outcome.’

Gargan, M. F., Bannister, G. C., Long-Term Prognosis of Soft-Tissue Injuries of the Neck, The Journal of Bone and Joint Surgery (1990), Vol. 72-B, No. 5, 901-903

 43 patients of Norris and Watt were followed 8 - 12 years after injury
 Only 12% had recovered completely: 28% had symptoms that affected daily activities and 12% had severe symptoms
 74% had neck pain at follow-up at a mean of 10.8 years
 Most patients reach their final condition within 2 years of injury
Hildingsson and Toolanan, Outcome after soft-tissue injury of the cervical spine, Acta Orthop Scand 1990:61 (4): 357 – 359

 93 patients were followed post-accident
 After 2 years, 42% of neck injury patients had recovered, 15% had minor discomfort and 43% had pain which interfered with their ability to work
 This means that 58% had long term neck pain on a chronic basis

Robinson, D.D., Cassar-Pullicino, V.N., Acute neck sprain after road traffic accident: a long-term clinical and radiological review, The Journal of Bone and Joint Surgery (1993), Vol. 24, No. 2, 79-82

 21 patients were followed 10 - 19 years after cervical injury
 86% had persistent neck symptoms
 There was no correlation between conclusion of legal claims and resolutions of symptoms

Parmar, H.V. and Raymakers, R., Neck injuries from rear impact road traffic accidents: prognosis in persons seeking compensation, Injury: The British Journal of Accident Surgery (1993) Vol. 24/No. 2, 75-78

 100 patients with neck injuries were followed between 8 months and 3 years post-accident
 45% were symptom free but 18% had significant pain and disability 3 years after injury
 Compensation neurosis is not likely to develop based on this study

Sturzenegger, M., Radanov, B., Di Stefano, G., The effect of accident mechanisms and initial findings on the long-term course of whiplash injury, JNeurol (1995) 242:443-449

 117 patients were followed after 1 year: 24% still had symptoms
 Factors that led to a worse prognosis were:
1 Rear end collision
2 Unprepared for collision
3 Rotated head position

Radanov, B., Sturzenegger, M., Di Stefano, G., Long-Term Outcome after Whiplash Injury: A 2-Year Follow-Up Considering Features of Injury Mechanism and Somatic, Radiologic, and Psychosocial Findings, Medicine September 1995 Vol. 74, No.5, 281-296

 117 patients in a system which did not provide compensation for non-economic losses were followed 2 years post-accident
 96 were asymptomatic and 21 (18%) continued to have symptoms
 Of the 21, 4 were at fault for the accident and 7 were in collisions described as trivial, meaning a minor event

 Conclusions:
1. The amount of damage and the speed of the cars bear little relationship to the injury sustained by the cervical spine
2. Previous attempts to correlate amount of damage and speed to clinical outcome have been shown to have little prognostic value
3. Those who were in rear-end collisions and unprepared for impact, with heads rotated fared worse over time

Pettersson K, Hildingsson C, Toolanen G, et al. Disc pathology after whiplash injury: a prospective magnetic resonance imaging and clinical investigation. Spine 1997;22(3):283-288

 39 patients were examined by MRI in order to assess initial soft tissue damage, the development of disc pathology and relationship of pathology to symptoms
 2 years after injury, 17 (44%) had either daily or intermittent symptoms, including headache, neck pain, memory and concentration problems
 12 had neurologic deficit on exam

SPINE: State of the Art Reviews 1993: Cervical Flexion-Extension/Whiplash Injuries; Vol.7, No. 3

Do All Plaintiffs Have Pre-Existing Conditions or Just the Ones I Represent?

The defense medical examiner says the pre-existing condition is the cause of the impairment, not the motor vehicle collision

“ The plaintiff’s degenerative cervical and lumbar spine arthritis and her degenerative hip arthritis pre-existed her motor vehicle accident. They have progressed since that time, as would be expected given the natural history of degenerative arthritis.”

Boden, Scott D., MD.., et al., Abnormal Magnetic Resonance Scan of the Lumbar Spine in Asymptomatic Subjects, Journal of Bone and Joint Surgery, March, 1990, Vol. 72-A, No.3 403-408

 MRI performed on 67 patients who had no history of back pain
 20% of those less than 60 years old had a herniated disk
 57% of those 60 years and older had abnormal scans, including disk degeneration, bulging and herniation

 CONCLUSION: A substantial percentage of asymptomatic individuals exhibited abnormal findings on MRI, including degenerative disk disease, bulging and herniation
 35% of those between 20 and 39 years old had bulging or degenerative disks

Jensen, Maureen C., MD.., et al., Magnetic Resonance Imaging of the Lumbar Spine in People Without Back Pain, New England Journal of Medicine, Vol. 331, No. 2, July, 1994, 69-73

 MRI was performed on 98 asymptomatic individuals
 64 % of these asymptomatic individuals had abnormal disk pathology
 52% had a bulge at at least one level, 27% had a protrusion and 1% had an extrusion
 38% had an abnormality of more than one disk

 CONCLUSION: On MRI, a majority of individuals without history of back pain have significant back pathology, including bulging and protrusion

Wood, Kirkham B., MD.., et al., Magnetic Resonance Imaging of the Thoracic Spine: Evaluation of Asymptomatic Individuals, Journal of Bone and Joint Surgery, November, 1995, Vol. 77-A, No.11, 1631-1638

 90 individuals were examined by MRI: 60 had no history of any thoracic or lumbar pain, 30 had history of low back pain only
 73% (66 people) of the asymptomatic group had positive findings, including 33 with herniation (37%), 48 with bulging disk (53%) and 52 with an annular tear (58%)

 Conclusion: This study documents that there is a high prevalence of abnormal disk pathology, including disk herniation and deformation of the spinal cord, when asymptomatic individuals are examined by MRI; further, there was no association between age and prevalence of disk herniation

Boos, Norbert, MD.., 1995 Volvo Award in Clinical Sciences, The Diagnostic Accuracy of Magnetic Resonance Imaging, Work Perception, and Psychosocial Factors in Identifying Symptomatic Disc Herniations, Spine 1996; 20(24): 2613-2625

 The objective of this study was to determine the frequency of disk herniation in asymptomatic individuals
 46 patients with prior discectomy were compared with 46 age, sex and risk factor matched asymptomatic individuals
 76% of the asymptomatic persons had herniation
 51% had bulging and 85% in all had degeneration

 CONCLUSION: In risk factor matched groups, 76% of asymptomatic individuals had disk herniation, which was a much higher incidence than expected. This is evidence that pre-existing DJD may not be symptomatic in a large majority of those persons with DJD and therefore not causal of post collision disability

Since Pain is Subjective, It Must Not Be Real

The Defense Medical Examiner Finds No Objective Signs of Injury And The Patient’s Symptoms Are Purely Subjective In Nature

 “ The patient’s clinical exam is unremarkable and does not define any objective abnormalities which would correlate with this patient’s complaint.”
 “Soft tissue conditions are purely subjective in nature and routinely heal over time.”
 “Such healing typically occurs in a period of several months and even giving the plaintiff the benefit of the doubt, there would be no way that a muscular pain mechanism could be attributed to a traumatic event in excess of eighteen months.”
Scarry E. “The Body In Pain” 1985

 “To have great pain is to have certainty; to hear that another person has great pain is to have doubt.”

Guides to the Evaluation of Permanent Impairment 6th Edition, American Medical Association 2008, Ch. 3 "Pain Related Impairment", pg. 32
Definition:

The International Association for the Study of Pain defines pain as an unpleasant sensory and emotional experience with actual or potential tissue damage that is described in terms of such damage

The following concepts are embodied in these definitions:

1. Pain is subjective

2. Its presence cannot be readily validated or objectively measured

3. Pain can exist without tissue damage

4. There is no biologic measure that correlates highly with a persons’ complaints of pain

Guides to the Evaluation of Permanent Impairment 4th Edition, American Medical Association 1995, Ch. 15 "Pain"

 Pain is endemic in the population of the USA
 Knowledge, understanding, diagnosis and treatment of chronic pain is rudimentary at best
 Pain encompasses a multifaceted concept that transcends the traditional medical model of disease
 Pain is subjective and its presence cannot be validated or measured objectively
 A 1987 Social Security Administration report said that it is impossible to understand the pain suffered by another individual
 The federal government recognizes the impact of pain: The DHHS has concluded that chronic pain is not a psychiatric disorder
When considering pain, the following assumptions must be considered:
1. Pain cannot be evaluated by strict laboratory standards
2. Chronic pain cannot be measured or detected on the basis of the classic tissue orientated disease model
3. Pain compromises the quality of life of many individuals

18 Q. You would agree that a person who is experiencing
19 the pain is in the best position to know what
20 they're experiencing?
21 A. Certainly.
22 Q. You've had pain before?
23 A. I've got it right now. I was digging post holes
24 this morning.
25 Q. And pain is real, isn't it
1 A. It is.
2 Q. And although you call it subjective, it's really not
3 subjective to the person experiencing the pain, is
4 it?
5 A. It is. Well, if they have it, it is not, correct.

23 Q. And in terms of how much pain an individual's
24 experiencing, again, they're in the best position to
25 know?
1 A. Absolutely.
2 Q. How frequent the pain is, they're in the best
3 position to know?
4 A. Yes.
5 Q. How long they've had pain, they're in the best
6 position to know?
7 A. Yes.
8 Q. When they have pain, meaning what they're doing,
9 what exacerbates the pain, what causes the pain,
10 they're in the best position to know?
11 A. Yes, sir.
12 Q. You would agree that pain can exist without tissue
13 damage?
14 A. Certainly it can.
18 Q. And you would agree it's impossible to understand
19 the pain that another person is experiencing?
20 A. It is.

A Review and Methodologic Critique of the Literature Refuting Whiplash Syndrome
Michael D. Freeman DC, PhD, Arthur Croft DC, MS, et al
Spine Vol. 24, No. 1 1999
A Review and Methodologic Critique of the Literature Refuting Whiplash Syndrome

 This article critiqued literature that attempts to refute the existence of whiplash injuries
 20 articles were evaluated for scientific credibility
 Flaws included:
 Inadequate sample size & study design
 Selection bias
 Unsupported conclusions
 Misquoted literature
 Misuse of terms

Lithuanian Study Concludes Whiplash Is Not Chronic, Based on a Sample of 202 People

 Inadequate sample size: 31 of 202 people, or 15%, were injured initially and as a result, exposed to the potential of chronic whiplash
 94% of those injured would have to be chronic to be significant
 At least 3000 people would have to be in the study in order to have sufficient statistical validity to discern a significant difference between the study group and the control group

Singapore Study of 22 Whiplash Patients Compared With 300 Australian Patients

 Study flawed because numbers were disparate and studies used different enrollment criteria and protocol
 Aussies had chronic whiplash vs. Chinese who had acute whiplash
 20 participants is an inadequate sample size
 Selection bias showed by comparing long term sufferers with those suffering from acute injury

Quebec Task Force on Whiplash-Associated Disorders

 Study concluded that whiplash injuries are short-lived & temporary, pain resulting from whiplash is not harmful, and whiplash prognosis is favorable
 Recovery was defined as “cessation of time-loss compensation”
 Studies that were cited as supporting cure actually supports permanency: Norris & Watt, Radanov & Hildingsson
Crash Test Studies : McConnell
 4 subjects were exposed to rear-end impacts at very low speed
 In a later study, 7 subjects were exposed to rear-end impacts at up to 6.8 MPH
 Conclusion:
 Injury to the low back is unlikely in low impact collision and any injury to the neck is mild and transient at best

Crash Test Studies : Szabo
 5 subjects were subjected to rear-end impacts at 10 MPH
 None had symptoms that lasted longer than 2 days
 A later study of 5 subjects at a speed of 9 MPH was done
 Conclusion: Collisions at 10 MPH or less are within human tolerance and injury is unlikely after a collision at or below 10 MPH
 5 subjects were subjected to rear-end impacts at 10 MPH
 None had symptoms that lasted longer than 2 days
 A later study of 5 subjects at a speed of 9 MPH was done
 Conclusion: Collisions at 10 MPH or less are within human tolerance and injury is unlikely after a collision at or below 10 MPH

Crash Test Studies : Castro

 17 rear impact subjects with an average speed of 7.1 MPH

 The “limit of harmlessness” for rear end impacts is between 6.2 and 9.4 MPH

Errors: Inadequate Study Size

 These studies contained an inadequate number of volunteers
 Example: If a coin is tossed 3 times and comes up heads, is it going to come up heads if tossed 100 times?
 To describe the range of injury in the general population, thousands of subjects need to be included in the crash tests
Errors: Nonrepresentative Study Sample and Crash Conditions
 Subjects include the authors of the studies, employees, friends and other associates of the authors
 Almost all of the subjects were male and none had pre-existing conditions
 The study subjects were healthy males, prepared for impact and perfectly situated in the seat at the time of impact
Biomechanical Studies: Allen
 The forces in a low impact collision are less than those of “plopping down in a chair” or “stepping off of a curb”
 As a result, low and no-damage collisions are unlikely to cause injury

Error: Unsupported Conclusions

 Plopping in a chair and stepping off a curb are not comparable with the movement of the body in a rear-end collision
 The majority of acceleration in a rear-end collision is in a front to back direction
 Whiplash trauma produces a peak accelerative force that is more than 150 times greater than that produced by plopping in a chair

Error: Inappropriate Study Design

 Common movements that do not usually cause injury were compared to whiplash trauma that results in 2.9 million injuries each year
 Neither whiplash injuries nor the mechanism of whiplash injuries were studied

Type of Error by Number and % of Studies

 Nonrepresentative Crash Conditions: 12 (60%)
 Inadequate Sample Size: 12 (60%)
 Nonrepresentative Study Sample: 10 (50%)
 Inappropriate Study Design: 9 (45%)
 Unsubstantiated Claims: 3 (15%)
 Unsupported Conclusions: 5 (25%)
 Misquoted Literature: 1 (5%)
 Improper Use of Terminology: 1 (5%)
 Misleading Illustration: 1 (5%)
 50% of the studies had 3-4 errors each

There Is No Basis For the Following Conclusions

 Acute whiplash injuries do not lead to chronic pain
 Chronic pain due to whiplash is usually psychogenic
 Whiplash injuries are unlikely to result in chronic pain in counties that do not have compensation for injury
 No damage rear impact collisions are unlikely to cause injury
 Whiplash trauma is comparable to movements of daily livings

There Is No Basis For the Following Conclusions

 There is insufficient force to the TMJ during whiplash trauma to cause injury
 TMJ injuries are not associated with whiplash
 There is a direct relationship between amount of damage and likelihood of chronic pain
 Pain caused by whiplash is caused/worsened by treatment and diagnosis
 The risk of chronic neck pain among whiplash patients is the same as the prevalence in the general population

Human Tolerance Levels
A/K/A: Injury Thresholds

Freeman, et al:Significant Spinal Injuries Resulting From Low-Level Accelerations: A Case Series of Roller Coaster Injuries, Arch Phys Med Rehab November 2005;86:2126-30

 Theory: injury to neck can’t occur below a peak head acceleration “injury threshold”
 These are derived from experiments involving human volunteers and cadavers
 Authors measured peak head acceleration on roller coaster riders
 Conclusion:peak head acceleration is a poor indicator of the injuriousness of the event
 Instead, there is no established minimum threshold of spinal injury
 Greatest factor? Individual susceptibility to injury
 “Significant spinal injury can result from low-level accelerations”

Croft and Freeman, Correlating Crash Severity With Injury Risk, Injury Severity and Long Term Symptoms in Low Velocity Motor Vehicle Collisions, Med Sci Monit, 2005 Oct; 11(10): RA 316-21

 Authors looked thru multiple databases for peer reviewed studies comparing injury risk, injury severity or duration of symptoms with structural damage to cars in crashes < 25 MPH
 This was because insurers take position that if PD < $1000, claimant can’t be hurt (MIST)
 Conclusion: substantial number of injuries are reported in crashes without significant PD
 Thus, PD is not a predictor of injury risk or symptom duration
 Head restraint, awareness of crash, sex, prior injury are better predictors of short and long term injury
 “Property damage is an unreliable predictor of injury risk or outcome in low velocity cases”

SAE J885 Revised December 2003

 “Factors involved in the determination of human tolerance levels are…beyond the state of the art in biomechanics except perhaps for a few academic situations”
 Difficulties in establishing human tolerance levels:
 The specific degree of injury severity that should serve as the tolerance level
 Large differences exist in the tolerances of different people
 Tolerance levels are sensitive to modest changes in the direction, shape and stiffness of the loading source

PAUL J. SCOPTUR
2600 N. Mayfair Road
#1030
MILWAUKEE WI 53226
414-225-0260
www.aikenandscoptur.com
www.paulscoptur.com

Mount Carmel Nursing Home and nursing home abuse

2010-07-05T13:08:00.000-07:00

Mount Carmel is a nursing home here in Milwaukee. Recently, it was hit with 35 state and federal regulation violations, already topping the 40 it was hit with in 2009. It has been hit with 6 lawsuits in the last 6 months, including one case where a resident was charted as being in the facility for 10 hours when in fact, he had left the facility and had been arrested for prowling.

Mount Carmel is owned by Kindred Healthcare, a large corporation known for its chronically under staffing at its facilities. There is only one reason, of course, for under staffing, and that is to save and make more money. Profits over people.

As a lawyer, I have handled many nursing home cases for families and this is a common theme. Attorneys find that many nursing homes are understaffed and the staff that works there is underpaid. In one case, I questioned a former CNA who left the facility. I asked where she went to work after the nursing home and she said McDonalds. I asked why and she said it paid better! So McDonalds, a fast food place, pays better than a facility that promises to take care of our parents and grandparents!

What happens when a nursing home is understaffed? Nursing home abuse. Falls, broken hips, broken bones, pressure sores, all these things occur when the nursing home chooses not to hire and pay enough staff to take care of the needs of its residents.

Keep on the lookout for nursing home abuse and hold those companies, like Kindred Healthcare and Mount Carmel, responsible for choosing profits over people.

Just bought a iPhone 4

2010-07-01T15:07:00.000-07:00

I admit, I'm a tecno geek. I bought the iPhone when it came out, upgraded when the G3S came out. I didn't stand in line, but the day after the new iPhone 4 came out, I couldn't wait any longer. Was in and out in 30 minutes.

Now that I have played with it, I have been thinking, how can I use this in my practice?

Well, there is a great voice dictation app that comes with the phone, and Dragon has an app as well. So I can dictate, email it to my secretary and she can type up the dictation and send it out, with me being on the beach on Maui! Well, not really, but I have thought about that.

But I am curious about the video recording aspect of the phone. It is HD. You can zoom.
I am going to use it to record a depo in the near future, just prop it up and let it rip.

I'll let you know how it works, but from this techno geek's view, no reason why it shouldn't.

Have a safe and happy 4th!

Is it discoverable?

2010-06-17T21:16:00.000-07:00

I have been consulting with a client on a case. The issue of the day is whether he can get the 1099's of the defense medical examiner. He has subpoenaed them, defense lawyer has filed a motion for a protective order, quashing the subpoena as burdensome, oppressive, yada yada.

So I am interested, what is your experience in getting financial information on defense retained experts?

From my view, it goes to bias. How much a defense retained expert makes goes to bias, plain and simple.

I would be interested in your experiences as to getting this information, especially 1099's.

Drop me a line. If you need any briefs on this, let me know, I have a few that have helped me quite a bit.

Well, let the games begin!

2010-05-19T17:26:00.000-07:00

There is a very thought provoking article in this month's The Jury Expert on the Reptile.
Rather than tipping you off one way or another, click on the link and read the article, commentary and comments other readers have posted.

I am very interested in your thoughts!

Google legal scholar is here!

2010-04-03T11:52:00.000-07:00

Every day we are asked to “find” something – I’ve found the Google
search engine to be a great research tool.

And now Google has online the beta version of its long-awaited Legal
Scholar, which allows you to search for case citations.

Don’t give up your WestLaw or Lexis subscription, but do check it out.

1) Go to Google, and click on “Other,” then select “Scholar” from the
drop-down list.

2) Select “Legal Opinions and Journals” and then enter a cite, let’s say
Dillon v. Legg.

3) You’ll notice that you can ask for both California and Federal cases,
you can specify a time frame (example: 1995 to present) and you can
indicate whether you want to see any article that includes the citation
or only those that include a summary of the case.

4) If you’re into Boolean logic searches, Scholar features Google’s
advanced searching capability, i.e., Boolean logic in disguise. Legal
Scholar is pretty neat, and it’s free!

Let me know how it works for you.

March issue of The Jury Expert

2010-03-21T08:55:00.001-07:00

Click on the link to see the new edition of The Jury Expert. There is a great article on witness preparation by Katherine James, among other good stuff. And best of all, it's free!

Rules

2010-03-13T11:01:00.000-08:00

I just returned from doing focus groups in Louisiana for a client on a case where an employee, with a company vehicle, got drunk and caused a fatal collision. Case is all about the drunk driver, right? Not. We needed to make the case against the company for hiring the driver, not against the drunk driver, as there was a punitive damages claim.
So day 1, good presentation by both lawyers, but its more about the drunk driver than the company that hired him. Day 2, we re-frame the case and start out with the rules, how the company violated their hiring rules, that these rules are safety rules, how breaking them endangers all users of the road and how the employer chose not to follow its own rules.

We saw a big change in compensatory damages, with the focus group in effect giving de facto punitive damages, and then a huge punitive damage award as well.

Moral? Juries don't like rule breakers. We need to establish the rules in depositions so we can use them at trial.

Article on discovery

2010-03-07T12:23:00.000-08:00

Phillip Miller and I recently had an article published in Trial titled "Four Rules for Discovery." Please take the time to read it. In the event that you don't have it, you can find it on my website, www.paulscoptur.com.

Spring is near!

Getting the defendant to admit his conduct is reckless

2010-02-28T08:23:00.000-08:00

Here is a short video clip from a deposition of the owner of a trucking company. We claimed he put an unsafe truck on the road, killing our client. If you set it up right, they will admit their conduct is reckless and an intentional disregard of the rights of others. Pretty good stuff and it gets you to punitive damages.

Using Standards and Rules

2010-02-20T14:49:00.000-08:00

From a participant at the recent AAJ Depositions College:

Wanted to tell you that the miller mousetrap is one of the best things I've learned in the last 30 years.

I used it on a nurse yesterday who was testifying on behalf of her employer, an orthopedist, I had her testify that not following nurses protocols in a hospital (against the hospital nurses) would be below the standard of care, would be careless and would be reckless.

Thanks a lot. I owe you a drink.

In my next post I will post a video of the technique, if I figure out how to do it!

Can jurors be interviewed post verdict?

2010-02-16T17:16:00.000-08:00

Some judges allow it, some don't. Here is an article that argues that it is a First Amendment right to do post trial interviews of jurors.

Lawyers May Have First Amendment Right to Interview Jurors
Marcia Coyle
The National Law Journal
February 11, 2010

Attorneys may have a First Amendment right to interview jurors in trials in which they did not participate if their purpose is to educate a segment of the bar, according to a federal appellate court.

Calling it a "novel" issue, a panel of the 10th U.S. Circuit Court of Appeals said it was "uncomfortable" addressing the question in the first instance. Instead, the three-judge panel on Feb. 3 ordered a district court to vacate its terse ruling rejecting a request by the Oklahoma Employment Lawyers Association and to reconsider the request in a "meaningful exercise of its discretion."

The employment lawyers' group sought to contact jurors three years after their service in Clyma v. Sunoco Co., a job bias suit brought under the Americans with Disabilities Act. The association told the district court that it wanted access to the jurors "for the purpose of providing educational information to members of the bar regarding jury dynamics in employment law cases." It argued that it had a First Amendment right of access to the jurors.

A rule in the U.S. District Court for the Northern District of Oklahoma states: "At no time, including after a case has been completed, may attorneys approach or speak to jurors regarding the case unless authorized by the Court, upon written motion."

The three-judge panel, led by Senior Judge Bobby Baldock, said the association's alleged First Amendment right "surely does not match the media's right to access information for the purpose of informing the political thought and behavior of the general public."

However, the panel added, "OELA's request for such access in order to prepare a program to educate a segment of the bar, despite countervailing concerns related to juror privacy and the administration of justice, may not be entirely devoid of First Amendment implications."

The panel said this issue of first impression "certainly requires the district court to exercise some discretion in ruling upon OELA's application and therein lies the fundamental problem in this case." By denying the association's request without any substantive explanation, the panel could not find the district court exercised any meaningful discretion and that failure, it said, constituted an abuse of discretion.

Because the underlying job bias case settled after a verdict in favor of the plaintiff, no one opposed the association's request to contact the jurors. The 10th Circuit appointed two lawyers -- former 10th Circuit clerks -- as amicus curiae to address the First Amendment issue and a standing question.

James Lebeck, an associate with Vinson & Elkins in Houston, and John Partridge, an associate with Gibson Dunn & Crutcher in Denver, said the district court's order was "an impermissibly broad prior restraint on protected expressive activity."

The fact that the association was not involved in the underlying litigation was a distinction that mattered under the circuit's precedent, they said, "because it diminishes the government's interest in shielding jurors from contact. Because it had no role in the underlying litigation, OELA has little, if any, incentive to upset the jury's verdict."

Joining Judge Baldock in sending the association's request back to the district court were Judges Jerome Holmes and Eugene Siler of the 6th Circuit, sitting by designation.

It has been a while.

2010-02-04T18:24:00.000-08:00

Sorry about the gap in posts, life is busy. As I write this, I am on the Garden Isle of Maui, just finished attending the AAJ conference here. I spoke on "Storytelling in Opening Statement" and if anyone wants the presentation, just send me an email and I am happy to share it with you.
Surveillance was an issue in a trial I just settled. I am interested in your thoughts on how effective it is. Please add your comments below.

It's Jury expert Time!

2010-02-04T18:21:00.000-08:00

There is a new edition of The Jury Expert, check out all the articles, including commentary by yours truly!

Merry Christmas, Happy Hanukkah, Happy New Year

2009-12-22T16:13:00.000-08:00

This says it all. Check out the video.

I'm still here

2009-12-22T15:57:00.000-08:00

I admit it's been awhile. Work, travel, life. But I'm back. So, what do we want to talk about?
I was reently interviewed by The Wisconsin Law Journal about lawyers who do house calls. An odd topic, until I connected the dots. There is a lawyer here in Milwaukee who has spent a lot of money on TV ads, touting that he does house calls. Like, what's the big deal? I have been doing them for 31 years. But it must be a big deal, as why would he spend so much money on that issue?
My guess is some advertising mogul did a bunch of focus groups and found this was a hot button with potential clients. In our Internet age, we are used to having things "delivered" to us at our homes. Why not legal services?
I have copied the article below, I would appreciate your thoughts.

Attorneys making house calls

by Jane Pribek

December 14, 2009

Clients aren’t counseled at the brick-and-mortar office of southwestern Minnesota firm Pluto Legal PLLC, although that building serves as the workplace for three staff members and attorney Lisa K. Pluto when she’s not working from her home.

Pluto is an estate planning and elder law attorney who travels to all her clients, making her a “house call attorney.”

“[I] meet with clients all over the state of Minnesota. We have clients from Luverne to Ely and everywhere in between,” she says. “We meet with them in the comfort of their own homes, at care facilities, at their advisor’s office or wherever they prefer.”

Pluto says there are many advantages to client house calls.

Near the top of her list is that it’s been a huge boost for her bottom line.

“It was the business model — sort of — of a previous firm I worked for,” she says. “They had about five offices all over the state. We decided that cost was not worth it and it was easier to just make house calls.

“Since we started three years ago, I have been booked out at least four weeks in advance.”

Pluto had concerns that clients wouldn’t be comfortable with the fact that her only traditional “land office” is at least 200 miles away. But no one has had a problem with it. Making herself accessible by giving out her cell number has helped in that regard.

She says, “My clients appreciate me coming to them. Many would not get the opportunity to do the planning if we didn’t make house calls.”

Steven B. Goff is a plaintiffs’ personal injury lawyer who’s been making house calls for 30 years — although some clients want to come to his office, and he’s fine with that.

Goff, of Bye, Goff & Rohde Ltd. in River Falls, says that early on in his practice a mentor told him, “If you’re not good enough to meet with clients on their turf, you’re not good enough to take their case.”

“It shows clients that they have a lawyer who cares enough to come to them,” he says. “You get that back with the level of cooperation, for example when you need them to get you documents or respond to interrogatories. I’ve found that long term, it makes the relationship better.”

Making a comeback

Plaintiffs’ attorney Paul J. Scoptur, of Aiken & Scoptur SC, (http://plaintiffslaw.com/) has 31 years’ experience as a house call attorney.

House calls are nothing new, but they’re making a comeback in popularity, he says.

Scoptur learned about their value as a new lawyer, when a prospective client in East Troy told him he had an appointment with another lawyer on Monday, but if Scoptur could get to him sooner he’d consider changing his mind.

Scoptur left his Milwaukee office immediately and signed the client.

It’s simple, from his perspective: “We’re in a service profession.”

JD Haas, a Bloomington, Minn.-based lawyer, says his bankruptcy clients are especially impressed that he’s willing to come to them.

House calls are not unusual for cases involving the catastrophically injured, but they’re rare for clients seeking debt relief.

Haas says he’s happy to make the trip: It gives him an idea of clients’ actual day-to-day circumstances and it shows a level of respect and dignity they might not get elsewhere.

The downside

House calls might not work if you’re in a law firm that’s driven solely by the bottom line, because they can be expensive.

Pluto, Scoptur, Haas and Goff don’t bill their clients for mileage or directly charge for the visit, although Pluto’s car is a company car and all costs associated with it are expensed to her firm.

Sometimes a house call won’t produce any revenue, acknowledges Pluto.

“But I always look at it as positive marketing. Sometimes I may drive 100 miles to tell someone they don’t need to hire us. If they had a good experience, they may tell two friends, who tell two friends — it’s like the Breck commercial from the 1980s,” she says.

You also need to be willing to spend a lot of time in the car.

While Pluto enjoys the variety of destinations and puts her time behind the wheel to productive use returning calls, some people definitely wouldn’t like all that driving.

And she noted the unpredictable driving conditions from November to April in the upper Midwest — although she’s rarely had to cancel a meeting due to inclement conditions.

One last issue to consider is safety.

Goff says attorneys from his firm typically visit in pairs if it’s a first-time visit, while Scoptur notes there are neighborhoods in Milwaukee that should probably be avoided after dark.

Boys will be boys

2009-11-25T12:48:00.000-08:00

Well, another interesting day here in Wisconsin. Two of the biggest advertisers in the personal injury field here in Milwaukee are facing up against each other in court. The reason? Apparently Avis, that being the firm of Cannon & Dunphy, has been sued by Hertz, that being Habush, Habush & Rottier. The reason? Seems like the Cannon firm bought the key search words "Habush" & "Rottier" on Google, so that whenever someone types in either of those search terms when looking for a lawyer, the Cannon firm's website link pops up first. At first Bill Cannon denied knowledge of the whole thing, then later, according to the Associated Press, he acknowledged paying for the keywords but denied any wrongdoing, saying it was following a legal business strategy.
Legal, maybe.
But as I said when interviewed about the lawsuit, “If someone is looking for me, I’d hope I’d be near the top of the list. If you can’t have your own name, what can you have?”

Another useful tool from Google

2009-11-24T15:45:00.000-08:00

Google is now offering FREE access to a huge amount of U.S. law through Google Scholar.

Why is this a big deal? Because historically law firms have had to pay incredibly high rates to gain access to online case law via services such as WestLaw and Lexis. Many law firms pay thousands of dollars each year for legal research through these services, dollars hopefully that can be saved in the near future.

Google Scholar is a freely-accessible Web search engine that indexes the full text of scholarly literature. The beta version was launched in late 2004, and now the Google Scholar index includes most peer-reviewed online journals from many of the world's scholarly publishers.

Here's the official Google Blog post, "Finding the laws that govern us," regarding their new service.

http://googleblog.blogspot.com/2009/11/finding-laws-that-govern-us.html

Go to the Google Scholar home page and select the radio button for Legal opinions and journals. You can search by the names of the parties in a particular case or the type of decision. Not only will Google Scholar return the results for a specific case you are looking into, it will offer links to associated cases for your further research.

While Google's current offerings don't match all the features of Lexis yet, it is only a matter of time until we can accomplish all we need to do for FREE.

And that's the way it should be – information wants to be free.

The New Jury Expert is out

2009-11-21T12:32:00.000-08:00

The American Society of Trial Consultants has a great publication called The Jury Expert. The new edition is out, check it out!

Very Off- Topic

2009-10-26T18:24:00.000-07:00

I flew back from Las Vegas today, did a presentation at the AAJ Mega Seminar on Overcoming Juror Bias, Rules of the Road and Damages. Anyways, its a long flight. I recently downloaded all of the new, remastered Beatles songs and put them on my iPod. First of all, the new sound is incredible. Clear, crisp, sounds great.

However, the point of this post is that Ringo Starr, aka Richard Starkey, is the best drummer in rock history. Not flashy like Keith Moon, not gonzo like John Henry "Bonzo" Bonham, but listening to these remasters, it is clear that he was the backbone of all the great Beatles songs, he knew just what each song needed.

As George Harrison said, Ringo had "the best backbeat in the business."

Take a listen. Now back to the law business.

Anatomy of a medical malpractice verdict

2009-10-01T16:58:00.000-07:00

I came across an interesting law review article with this title. It is written by 3 trial consultants and discusses a lot of the psychology that jurors bring to the table. It is 70 Mont. L. Rev. 57. I can't attach it or a link to the blog, but if you want a copy, sent me an email and I will send it to you.

The Jury Expert

2009-09-30T16:26:00.000-07:00

The American Society of Trial Consultants, under the direction of editor Rita Handrich, has an outstanding publication: The Jury Expert. Each issue is full of interesting articles that benefits trial lawyers and consultants alike. Check out the current issue at http://www.astcweb.org/public/publication/.

There is an article on Civil Case Mediations: Observations and Conclusions, with commentary by yours truly.

Let Rita know what you think. She can be contacted at rhandrich@keenetrial.com.
(Rita loves positive reinforcements:-)

Words

2009-09-27T14:05:00.000-07:00

Words. It’s what we use to communicate. Meaning comes from various sources, but words are what we use every day to communicate with each other. However, it’s not what you say, it’s what people hear.

Frank Luntz is a Republican consultant. He was instrumental in developing the Contract with America that Newt Gingress made famous. He has written a book, Words That Work, which is essential reading for any lawyer.

His key point is simple: It’s not what you say, it’s what people hear. And as a lawyer, that is a key concept in communications. I recently was picking a jury in a brain injury case. I asked one of my standard questions, dealing with money. “ At the end of this case, I will be required to ask you for money for my client. How do you feel about that?”

A young man raised his hand. He said “ Let me make sure I understand. At the end of the case, you are going to ask us to give money to your client.” I said “yes.” He replied, “Well, I don’t have a lot of money.”

It was about what he heard, not what I said. He thought it was his money that was going to my client. I didn’t communicate very well to this juror.

There are some rules for effective communications with jurors.

Rule #1: KISS (keep it simple stupid)

Simplicity is good. Small words work better than large ones. We want to talk like lawyers, rather than people. John Kerry included this in one of his speeches while campaigning for President:

“A bold progressive internationalism that stands in stark contrast to the too often belligerent and myopic unilateralism of the Bush Administration.”

Huh?

Madison Avenue has mastered the use of words in advertising. The following are examples of KISS.

Mac vs Macintosh
Fed Ex vs Federal Express
IBM vs International Business Machines
KFC vs Kentucky Fried Chicken
DQ vs Dairy Queen

So how do we use this in our practice? Well, look at some terms we use.

Preponderance of the evidence. What does that mean to the average juror? Nothing. What does it really mean? More likely right than wrong.

The greater weight of the credible evidence. What does that mean to the average juror? Nothing. What does that really mean? More likely right than wrong.

Deviation from the standard of care. What does that really mean to the average juror? Nothing. What does it really mean? Not following the rules.

We need to use language that connects with jurors on an everyday level. Don’t be lawyer man and lawyer woman. Be every man and every woman.

OK, time for Rule #2: Use Short Sentences

Brevity is good. Sometimes we have a desire to do lawyer speak. Don’t. Think about some of the best slogans of our generation.

“Just Do It”
“I Like Ike”
“JFK, All The Way”
“It’s the real thing.”

These simple phrases say a lot. When we try to convey rules to the jury, we also need keep them brief. Remember, simple is good, complex is bad. One of the keys to cross examination is one fact, one question.
Remember My Cousin Vinny? Vinny crossed the eyewitness about what he saw. Bushes, trees, screens, he walks him through his view, using pictures. And asking one fact/question. Very effective. Our best tool on cross is asking one fact, one question. Watch the scene from the movie, it is very instructive. And funny.

Rule #3: Establish Credibility

I know it seems simple, but we need to create positive messages. So often we spend time tearing down the other side, we lose track of what is really important: establishing the credibility of our client. You can have the best case in the world, but if the jury doesn't like your client, if the jury doesn't believe you client is credible, you will lose. So, how do we do this?

We need to show several things. First of all, we need to show that the plaintiff is deserving. Deserving of the empathy of the jury. Don't seek sympathy, seek empathy. Sympathy is where the jury feels sorry for your client. Empathy is where the jury is motivated to help your client. And that help will only come if your client is deserving of their help.

Personal responsibility is still the dominant juror attitude. Usually the defense uses this against us. Turn the tables and make this your issue, not theirs. Show that your client accepts responsibility for their health. All the therapy visits, all the trips to the doctor. Show she accepts responsibility for the missed appointments because she had to piick up the kids from school. In a recent trial, the defense lawyer attacked my client for missing 6 weeks of therapy. It turns out that she was caring for her grandchildren during that time. She said she knew she needed therapy but her family came first. She accepted responsibility for missing the appointments and the jury understood why.

I have a hard and fast rule: I will not represent anyone who doesn't have a job. Paraplegics and quadraplegics have jobs and contribute to society in many ways. Certainly someone with a back injury can as well. It can be a part time job, it doesn't matter. But the plaintiff needs to have a job. That shows that the plaintiff is accepting responsibilty and is trying to help his family as best as he can. Again, it establishes the credibility of your client.

The case isn't about money for nothing. Instead, frame the case as money in exchange for health, The plaintiff has already paid with her health. Now it's time for both sides to pay.

Rule #4: Be Consistent

It's important to create a trial theme and stick with it. Jurors develop a trial story early on and based on what you give them. There is something called the Availability Bias. Information made available early frames how the evidence is received. You want the jury to create a favorable trial story, so you need to make the bad conduct of the defendant available to them first. It used to be that we would talk about the plaintiff first. Bad idea. Start with the bad conduct of the defendant, the choices he made and how those choices led to the harm. The Availability Bias is powerful. Use it to create a consistent story that is adopted by the jury.

Rule #5: Be Novel, Be Different.

Words frame our message. Death tax vs. estate tax. Gaming vs. gambling. The words we use are important. For example:
Its not chiropractic and massage therapy, its complementary medicine

Its not doctor shopping, its a second opinion
Its not an accident, its a collision

Its not compensation, its payment for health

Its not defenses, its excuses

Its not a soft tissue injury, its a non-surgical back/neck injury

Its not failures, its choices

Its not pain and suffering, its harms & losses

Use words to frame your case. Remember, its YOUR case, not the defendants case. Framing the case helps establish the trial story that you want the jury to adopt as theirs.

Rule #6: Sound and Texture Matter
There are certain rules regarding sound and texture that have to be kept in mind when communicating. Katherine James and Alan Blumenthal are actors and trial consultants in California. They help lawyers talk. Yes, that sounds odd, lawyers talk too much, but Katherine and Alan emphasize inflections. Rising and falling inflections at the end of a question. A lot of meaning can be delivered by a rising or falling inflection.
The Rule of Threes.This is a long recognized method of conveying sound and texture. It is used often in songs. I was driving today and happened upon a Kinks song (yes Im dating myself), All Day and All of the Night. Classic example of the rule of threes. The refrain was sung 3 times, several times.

In speech, we see it as well. "We came, we saw, we conquered." " By land, by sea and by air." And my favorites, "Yabba, Dabba, Doo" and "Snap, Crackle and Pop." Use words that convey texture and sound.

Rule #7: Make the Case Bigger

It's not this case where this rule was broken. It's bigger than this case. A broken safety rule can affect anyone, even a juror or her family. Make the case bigger than just your client so the jury feels they are deciding something important. Make the case bigger than just your client so the jury understands that breaking a safety rule can impact them next time. Focus on the industry, not the event. It’s about big medicine, big business, big nursing home chains. Framing the case around the industry makes jurors think it can happen to them. And they don't want to be next in line. The tentacles of danger can spread far and wide. Let the jurors know they can spread to them and their families and the only wasy to stop it from happening is to bring in a verdict for the plaintiff. Use words to create the frame for that concept.

Jobs

2009-09-18T14:00:00.000-07:00

We all have jobs. Whether it's work, being a parent, teaching Sunday School, coaching sports, we all have jobs. That's why I ask about jobs at depositions. One of my favorite deposition questions is "What qualifies you to do your job?" Most of the time, you will find that the person is at least marginally qualified to do the job that they are doing. But sometimes, they are not.
Check out the deposition clip of the safety director at a major manufacturer here in Wisconsin. My client, a delivery man, was hurt due to unsafe practices at the plant. This is one of Eric Oliver's favorite deposition clips. Watch the non-verbal aspects of the clip, they are almost better than the answers.
Remember, ask about jobs.

Stuff does happen after all.

2009-09-18T13:54:00.000-07:00

Last night, I thought I posted an entry, complete with video. Clearly it is no longer here. So, stuff does happen after all. Now, if I can only remember what I thought I had posted...

Stuff happens? I don't think so

2009-08-28T12:33:00.000-07:00

I did several focus groups this week and of course, there were the "stuff (shit) happens" jurors in the groups. In one group, the 57 year old conservative male, who by the way, when asked 3 people he admired jotted down George Bush, Rush Limbaugh and Sarah Palin, started out the deliberation by saying, "well, you know, I say this a polite way but sometimes, stuff happens." Another lady chimed in a few minutes later saying this shoulder dystocia injury was "God's will."
By the way, she could not be swayed to find the doctor negligent under any circumstances. I asked her "what if the doctor was drunk?" It was still "God's will."

Anyways, the "stuff happens" jurors were met by resistance from the most unlikely of sources: a 22 year old male who listed himself on the questionaire as "very conservative." Lately I have found that the 25 and under age group is generally not good for plaintiffs so I was a bit surprised when he challenged the "stuff happens" members of the focus group. He said "stuff doesn't just happen. Stuff happens when someone is negligent, stuff happens when someone isn't careful, stuff happens when someone isn't paying attention. Stuff just doesn't happen."

It was a stirring rebuttal, one that I will probably use in trial at some point.

Here is a short article titled "Accidents Just Don't Happen." I hope you enjoy it.

ACCIDENTS DON’T ‘JUST HAPPEN’

Whenever there’s an accident, whether the result is a fatality or a broken plate or anything in between, someone is sure to ask: "How did it happen?"
The answer should always be the same: "It didn’t happen; it was caused." And it’s almost always
possible to trace it back to somebody—or several somebodies—who fell down on their job
somewhere along the line. Either they did something they shouldn’t have done, or they failed to do something they should have done.

Let’s suppose, just to illustrate what I’m talking about, that you fall on the stairs at home and break a leg. That accident didn’t "just happen"; there was no evil spirit putting the hex on you or lurking in the shadows to trip you. No, there was at least one quite tangible cause.
The odds are that the fall was your own fault—that some act of yours (or failure to act) was to blame. Maybe you were in a hurry and took the stairs faster than usual—faster than was safe. Maybe you were carrying an awkward load that put you off balance and kept you from grabbing the railing to steady yourself. Maybe you forgot to turn on the light over the staircase. Maybe your eyesight has been playing tricks on you, but you’ve put off seeing an eye doctor and getting proper glasses. There are probably dozens of other "maybes" that boil down to your being the cause of your own fall.

On the other hand, maybe there was someone else involved: one of the children left a toy on the step, or whoever discovered the stair light burnt out failed to replace the bulb. There could even be a combination of causes: You were in a hurry and didn’t turn on the light, so you didn’t see the toy that someone else left there, against the rules.

Accidents on the job don’t "just happen," either. They are caused by the actions or inactions of one or more people.

Now for the good news. Just as people cause accidents to happen, they can prevent them from
happening. That’s the reason for the safe work practices we have established and the posted list of safety rules. It’s why we have regular training sessions to inform and remind you of ways to keep yourselves and your co-workers safe. It’s the reason we provide personal protective equipment that can help keep a potential hazard from causing actual harm.
But no work practices, rules, training, or equipment can prevent an accident from happening. You do that. You follow the lockout-tagout procedure; you leave machine guards in place; you tag and report a damaged tool or wire; you wear your safety glasses or bump cap.

Some of us have special responsibilities that have an effect on everyone’s safety. A maintenance
supervisor, for example, has to do his or her job correctly or mechanical failures could be followed by accidents. The safety committee chairperson must be sure to post any change in evacuation procedure.

And so on. But for the most part, your own safe behavior is your own greatest safeguard. Remember that when you’re tempted to take a shortcut or break the safety rule "just this once" or "just for a minute." That one minute could be exactly when the accident doesn’t "happen" but is caused.

SpongeBob?

2009-08-22T13:37:00.000-07:00

Well, tort reform has hit SpongeBob Squarepants. Saw this on TV the other day, yes, I watch cartoons. I have seen all the I Love Lucy reruns, so cartoons it is. Anyways, it appears as if the tort reformers are starting to poison the kindergarten class. Watch out for the next generation.

Actually, I have found in focus groups that the 25 and under group are not very plaintiff friendly. They tend to be the "stuff happens" juror, the one that finds any reason not to find for the plaintiff. I am not big on stereotypes when selecting jurors, but I am wary of that age group.
My daughter was on a jury when she was 19, PI case, car crash. She, as well as the others, found for the defendant. My daughter, her father a PI lawyer!

They are poisoning the next generation

2009-08-22T13:28:00.000-07:00

Depositions

2009-08-16T13:30:00.000-07:00

I love depositions. They can be so much fun. I just posted one of my favorite deposition clips. She was the Director of Nursing at a nursing home that I sued. I won't tell you the facts, I'm sure you will be able to figure it out when you watch the clip.

Lessons? First, stay on your path. You have a line of questioning you want to follow, don't let the witness knock you off your line.

Second, don't be afraid to ask about the standard of care. If you can establish the rule from the other side, it is very powerful. More powerful than if just your experts say what the rule is.

Third, video tape all depositions. Watch her body language, it is as valuable as the testimony she gives.

I hope you enjoy the clip and learn something from it!

One of my favorite deposition moments

2009-08-16T13:14:00.000-07:00

Interesting revelation today

2009-08-14T14:29:00.000-07:00

I was a panelist today at a conference of defense lawyers here in Wisconsin. The topics included pre-trial and trial issues that both sides of the Bar encounter. One panelist, a defense lawyer, started talking about a case where the plaintiffs' lawyer said, in voir dire, that he would be asking for $5,000,000 at the end of the case. His question, for us plaintiff guys, was why did he do that?
I, being the quiet one, blurted out "anchoring." He looked puzzled, but moved on. Later, the discussion turned to a situation he recently had where the plaintiff didn't put in the medical bills. I asked what they were, he told me, they were under $2,000. he asked us plaintiff guys why he would do that, as he found it odd. I again blurted out "anchoring." I then related a story of how a friend of mine recently tried a case and didn't put in the medical bills, which were significant, but not eye opening significant. The jury returned a verdict of $22,000,000. he told me that he didn't put in the bills because he didn't want to anchor the verdict too low. Good move, Jim.
Anyways, defense lawyer, who has been around close to 40 years, turns to me and says "where can I find out more about this anchoring stuff?"
What's the point? The point is, I think those of you who come to AAJ programs, learn about juror bias, learn about juror attitudes, learn about the psychology of jurors and do focus groups, are way ahead of our defense brothers and sisters.
Have a good weekend.

Good book about persuasion

2009-08-13T09:08:00.000-07:00

I recently read this book and found it to be a fascinating explanation on how we can influence others to act. It is called:

Influence: The Psychology of Persuasion
by Robert B. Cialdini

Below is a review, which I concur with. Pick it up, its easy to read and the author describes some interesting studies and tests which support his conclusions.

Another interesting read, this time about the psychology of persuasion. Here is one reader’s review, which I agree with.
Cialdini believes that influence is a science. This idea attracted me. As a rhetorician, I have always thought of persuasion as more of an art. Cialdini, however, makes a first-rate case for the science point of view. But maybe most importantly, he makes his case in a well-written, intelligent, and entertaining manner. Not only is this an important book to read, it is a fun book to read too.

He introduces you to six principles of ethical persuasion: reciprocity, scarcity, liking, authority, social proof, and commitment/consistency. A chapter is devoted to each and you quickly see why Cialdini looks at influence as a science. Each principle is backed by social scientific testing and restesting. Each chapter is also filled with interesting examples that help you see how each principle can be applied. By the end of the book, I had little doubt that these are six important dimensions of human interaction.

I highly recommend this book to all professionals. It does not matter if you are a manager, sales person, pastor, or non-profit volunteer. The ideas in this book, once applied, will make it easier for you to accomplish your goals. In a video featuring the author, Professor Cialdini even goes so far as to promise that these principles can help you influence the most resistant of all audiences–your children.

With a claim like that, who wouldn’t be intrigued?

September 2nd teleseminar

2009-08-11T14:52:00.000-07:00

On Wednesday September 2nd, Phillip Miller and I will be doing a teleseminar for Trialsmith on using strategic case planning to maximize recovery in your cases. You can sign up at https://www.trialsmith.com/TS/index.cfm?showfullpage=1&event=showAppPage&pg=semwebCatalog&panel=showLive&seminarid=1682.

Why does strategic case planning work?

When we work with a trial team to prepare a strategic case plan, one of the primary reasons for success is the amount of focus that is brought to bear on the case. Our uninterrupted work sessions can last 2 days without interruptions of any kind. They are done away from your office. There are no appointments, depositions, phone conferences, or other distractions during our work sessions. We spend every minute of each day focusing on the one case that you have selected. At the end of a work session, we guarantee it will be the most intensive case preparation you have ever experienced, short of final trial prep.

Strategic Case Planning allows you to shape a trial story and case presentation that incorporates what we know about juror learning, juror bias, memory, and decision-making. It identifies the case critical points for your case, and the opposition case, and it serves as a guide to development of relevant visuals that are tightly integrated with both your case, and the case you are rebutting.

Strategic case planning is valuable at any point in litigation, but the sooner the case planning is conducted, the greater its potential benefit. Strategic case planning is most powerful as a tool if it is used before discovery, or at least before case critical depositions are taken. When done before discovery begins gives, you will expose how every aspect of the opposition’s case, along with juror biases and other negative non-evidentiary inferences, will be perceived by the fact-finders and shape deliberations. More importantly you will begin discovery with a detailed plan that allows you to rebut all the landmines that favor the opposition, and a plan of what you need to elicit from opposition witnesses that will give you evidence that you need to prevail. From that earliest point, to preparation of your own client, preparations of your experts, depositions of defendants and their experts, jury selection and case presentation, strategic case planning helps to shape and guide trial strategy and presentation.

By focused discovery that rebuts the landmines in a case, you can change the nature of the case and the opposition’s perception of their risks. This can provide a tactical advantage that can be decisively exploited during settlement. Numerous clients who have completed early case planning report that they are able to use what they learned in case planning to better hit their opponent’s weak points during discovery and maximize their client’s recovery in mediation.

Here are some of the specific benefits that early strategic case planning can provide for you and your clients.

1. Identify problems in the case early, so you will have time to fix them
Looking at a case through the lens of a plaintiff gives a different view than what the jury will hear and see, and things get missed. There are “blind spots” in our ability to anticipate what the opposition is doing/will do, and what the jury will think is true. Inevitably when “Blind spots” are discovered they involve evidence that is serious enough to affect case value and outcome. Late discovery of these problems provides no time to develop effective rebuttal proof. Instead, the attorney is limited to what he/she can argue and hope that the jury puts more weight on the argument than they do the evidence. One of the main benefits of doing strategic case planning early is that, by finding such blind spots, you have time to rebut the landmine created by the blind spot, and potentially expose blind spots of the opposition as we. Every time we do strategic case planning we are able to expose landmines and blind spots that were completely unanticipated and would be outcome determinative if un-rebutted.

2. Anticipates the questions jurors will ask during deliberations.
Any statement by an attorney that is not clearly supported by facts has little chance of survival during deliberations. Questions like: How do you know that? Why is that true? Why is that important? What does that have to do with this case? are integrated into the process of strategic case planning so that your evidence answers the questions the jurors want to ask, which is much different than shaping evidence to prove a prima facie case. Successfully anticipating and answering juror questions is the path to victory.

3. Creates discovery that is focused, efficient, and effective.
If strategic case planning is begun before discovery, you will gain insights about areas of inquiry that you never would have anticipated. The strategic case plan will clearly point to which witnesses your will need to depose. Those witnesses are often different that what you might have thought of if you had “made a list” because they are necessary to respond to case landmines and rebuttals that would not have been otherwise obvious. The plan will also show what experts you will or will not need, and provide guidance on how to potentially eliminate 1 or more experts through your rebuttal.

4. Prepares you for efficient, reliable focus group research.
Strategic case planning produces a detailed presentation plan for anyone who will be representing the opposition in focus group testing and mock trials. Too often focus groups hear a weaker, less persuasive presentation than they will from the opposition lawyers at trial, lessening the reliability of the information you receive. Focus group research that does not present the opposition case gives you little of value. Just as importantly, strategic case planning provides specific rebuttals to the opposition case that are honed, refined and reduced to writing. When the focus group exercise is conducted, the strength of those specific rebuttals can be measured-not just generalities.

5. Provides guidance on the graphics to be used
Strategic case planning forces the early identification of key points that constitute the rebuttal to landmines, and the case-in-chief. These key points, and the facts that support them, form the plan for the visual strategy in the case. Early in the case is it possible to see what the visual strategy willl look like, incorporate elements into the discovery, andx test early drafts of the visuals with focus groups.

Please join us on this teleseminar, it will benefit both you and your clients.

Memory and Marathons

2009-08-10T09:40:00.000-07:00

The Neurocritic has a fascinating summary of a recent paper investigating different types of memory in marathon runners. Why marathoners? Because completing a 26.2 mile race is an insanely arduous exercise, and leads to the massive release of stress hormones such as cortisol. Here are the scientists:

Indeed, cortisol levels recorded 30 min after completion of a marathon rival those reported in military training and interrogation (Taylor et al., 2007), rape victims being treated acutely (Resnick, Yehuda, Pitman, & Foy, 1995), severe burn injury patients (Norbury, Herndon, Branski, Chinkes, & Jeschke, 2008), and first-time parachute jumpers (Aloe et al., 1994).

But before we get back to the marathoners, a quick discussion of human memory. There are two distinct types of memory, which rely on different pathways in the brain. Explicit memory involves the recollection of discrete facts, events, names, faces, etc. It's a conscious process and is largely modulated by the hippocampus. (This was first discovered by studying patients with hippocampal lesions who turned into amnesiacs.) The second type of memory is implicit, largely unconscious and allows us to act based on previous experiences without taking the time to recall discrete memories. Think, for instance, of riding a bicycle. You have an implicit, procedural memory of the motor movements required to balance on two skinny wheels. As a result, you don't have to relearn the movements, or even consciously consider them, every time you go for a ride.

It has long been known that stress disrupts explicit memory, which is why it's not good to be too stressed when taking a test. The scientists hypothesized that finishing a marathon would wreak havoc on our explicit memory system, while leaving implicit memory largely intact. (There are probably good evolutionary reasons for this. It's not useful to forget how to throw a Pleistocene spear when being chased by a bear; if stress disrupted our procedural memory, we'd all be dead by now.)

The experiment itself was straightforward: 261 marathoners running in either the New York City Marathon or the Boston Marathon were given two different verbal memory tests, targeting the different memory pathways. 141 of the runners were tested within 30 min of finishing the race (when their cortex was still flush with cortisol) while the other 120 were tested 1-3 days before the race (this was the control group).

The end result? The group that had just finished the marathon showed a significant decline in explicit memory. They were less able to consciously recall a series of words that they had been shown only a few minutes earlier. However, after running 26.2 miles the marathoners actually showed a large improvement in implicit memory. In other words, the extreme stress and utter physical exhaustion sharpened their ability to act on information stored in their unconscious.

2009-08-09T13:33:00.000-07:00

Dead By Mistake

That was the "above the fold" headline on the front page of today's Albany Times-Union. It headlined a series of stories that detailed the 2,000,000 deaths that have occurred during the past 10 years as a result of preventable medical errors. Because this was a national investigative piece by Hearst newspapers, similar headlines appeared in all of its 14 daily papers, including the all-important San Francisco Chronicle (Speaker Pelosi's hometown paper). The articles are comprehensive, compelling and contain no anti-lawsuit, anti-lawyer or anti-consumer bias or inuendo. I believe that they are the most helpful national articles that ever been written about medical errors and their impact that have ever been written.

As part of the series, Hearst has even created a webpage www.deadbymistake.com

Check it out, very interesting.

2009-08-09T12:42:00.000-07:00

Ok, been a while. Busy summer, son's wedding, married a fellow PI lawyers' daughter. Anyways, I am trying to catch up and post meaningful things here. Just got back from speaking to the Colorado Trial Lawyers Association, yes, they haven't changed their name! I became a member, since I have spoken there so often.
I spoke on damages and Using the Rules in Opening. You can download my powerpoint presentations at www.paulscoptur.com. Free, to boot!

I have been doing quite a bit of consulting and focus groups lately, and one thing that seems a constant is that the youngest generation, the 25 and under group, are not very good for plaintiffs. I really don't generalize or stereotype as to jury selection, but I have consistently found that no matter the location, Idaho, Wisconsin, Colorado, this age group is not very plaintiff friendly as a whole.

I'm wondering what your experience is with this age juror?

For example, my 23 year old daughter, raised in a family of what I would consider to be more liberal than conservative, recently announced that she was leaning Republican. And she lives in Madison!

Anyways, when picking a jury, keep that in mind.

Social networking

2009-06-07T09:02:00.000-07:00

This is a big thing now. Facebook, MySpace, Twitter. But my question is how does this help the legal profession?
My daughter is the Marketing Director of a large law firm. She is a social networking genius. So, she gets the "old farts", like myself, to buy into the social networking thing. what happens? New clients come through the door.
Now, I'm not sure that it works for everyone, but I suspect there is something to this social networking thing. So, go to Facebook, set up an account and "friend" me!

Starting my blog

2009-06-06T14:01:00.000-07:00

Ok, I have too much time on my hands, so it's time to start a blog. Was at the American Society of Trial Consultants conference this week. I presented on focus groups and how they can be used to frame your case. Anyways, listened in on a few of the other speakers and came across David Matsumoto. David is an expert on microexpressions. That is the science of reading emotions from very quick facial expressions, often 1/30th of a second. It was fascinating!
There are seven basic human emotions: fear, sadness, contempt, disgust, happiness, surprise and anger. After 3 hours of training, I was able to ascertain these emotions with amazing accuracy!
Well, my first attempt netted about 30% but after the training, it approached 80%.
Anyways, check David out, it is pretty cool.