ASSORTMENT OF NOTES & IDEAS

I was reviewing a stack of material I had put aside to read when I had time and having done so, thought I’d share some of them,  even though they are not organized in any particular order. Here they are:

  • In order to motivate good eye contact, make a practice in talking with other people, to make a specific effort to note the color of their eyes. This enhances optimum eye contact.
  • We often forget the power of silence. As lawyers we have a tendency to be uncomfortable with pauses or silence and fill them with words.  However, when we are encouraging someone to share information with us,  silence can create pressure on the other person to fill the blank  and reveal more information. Use silence as a tool.
  • It’s an obvious, but often forgotten fact, that the the best way to learn something is to teach it. In order to teach it you have to learn it.
  • Alan Alda wrote a book If I understood you, would I have this look on my face? Some of the things he noted included:

(1)   In connection with a television program he hosted, he interviewed people             including scientists about their work. He decided to study the subject that he was going to be talking to the scientist about to prepare for the interview. However, he says he learned that that was a bad idea because “After a while, I saw that I was having trouble talking with them whenever I thought I knew more than I really did about their work. I was boxing in the scientist with questions that were based upon false assumptions. I took a bold step and stop reading the scientist’s research papers before I met with them. I would come in armed only with curiosity and my own natural ignorance.” Lawyers should learn that lesson with regard to both direct and cross examination of experts. While it is important to know the subject too many lawyers make the same mistake Alda did and the result is a boring and often ineffective examination

(2)  Experiments were done regarding people who had suffered a loss of connection between the right and left brain hemispheres either due to surgery or to trauma. The two half’s were operating independently and were unable to communicate with each other like a normal brain. What the scientists discovered, however, was that if the left hemisphere had no clue as to the answer to a question or information about a subject it would nevertheless guess, prevaricate, rationalize and look for a cause and effect. In every case it would come up with an answer that it thought satisfied the circumstances. Our thought process regarding decision-making  follows the same pattern. That is, even when the decision is made at a subconscious level and the rational mind does not realize why it was made, the rational mind will always come up with a reason. That’s why survey’s and even focus group studies  for reasons can be misleading.

(3)  Alda discovered that scientists and people in the scientific field make the same mistake many trial lawyers make.. That is they use shorthand, abbreviation or acronyms. They do it  either because they want to show off about how smart they are or they make the mistake of assuming that everybody understands the meaning.Too often lawyers who have spent a great deal of time learning a scientific subject follow the same pattern with the jury. The jurors, however don’t understand and become confused by this kind of shorthand communication. We need to always avoid this mistake in our communications.

  • Donald McRae wrote a book The great trials of Clarence Darrow.Some of the things noted in the book are worth our considering:

(1)  In the Los Angeles bribery trial against Darrow, he told the jury in final argument: “I am on trial because I have been a lover of the poor, a friend of the oppressed, because I’ve stood by labor all these years, and have brought down upon my head the wrath of the criminal interest in this country. Whether guilty or innocent of the crime charged in the indictment, that is the reason I am here. I have committed one crime, one crime which cannot be forgiven. I have stood for the week and the poor. I have stood for the men who toil… If you should convict me, there will be people to applaud the act. But, if in your judgment and your wisdom and your humanity you believe me innocent, and return a verdict of not guilty in this case, I know that from thousands and tens of thousands and yea, perhaps millions of the weak and the poor and helpless throughout the world will come give thanks to this jury for saving my liberty and my name.”

(2) In his plea to save the life of Leopold and Loeb his argument lasted over two days.It was almost 4 o’clock on the second day when Darrell reached his conclusion: ” I am pleading for the future, I am pleading for a time when hatred and cruelty will not control the hearts of men, when we can learn by reason and judgment and understanding and faith that all life is worth saving, and that mercy is the highest attribute of man.” They escaped the death penalty.

(3)  He notes that Darrow did not write out his actual argument to the jury, but he would work on individual passages around which he would create a pattern of words that often were to take two days to deliver and all without notes.

(4)  His opponent in the famous Scopes trial was William Jennings Bryan. Brian’s famous speech which he gave hundreds of times across the country, the “Cross of Gold” speech was on behalf of those opposed to making gold the standard rather than silver. It was chiefly responsible for his being nominated three times to run unsuccessfully for the US president. The memorable conclusion was delivered with a biblical crescendo: “We will answer demands for a gold standard by saying to them: you shall not press down upon the brow of labor this crown of thorns; you shall not crucify mankind upon a cross of gold.”

(5)  Darrow had a difficult  time starting his law practice. He had said in a speech: “for a while, I was practicing law and playing poker on the side and I almost starved. But then, I started playing poker and practicing law on the side and I made enough money to go to Chicago and open an office.”

(6)  Regarding jury demographics, Darrow was once asked about leaving Irish Catholics on the jury involving capital punishment. His response was: “I never met an Irish Catholic yet who didn’t think that someday he might be in trouble himself.”Darrow’s mantra was, once the jury had been selected, that: “the case is won or lost now. The rest is window dressing.”

I saved a memo from the Internet about advice to presidential candidates for their debates with their opponents.It seems to me that some of the advice was applicable to trial lawyers as well. Here are a few:

(1)  Develop a list of three things you MUST say in the debate. Use it as a checklist before each answer to see if you can fit it into your answer.

(2)  While punches are good, counter punches are always better. Study what your opponent has been saying and be prepared with counter punches.

(3)  Always begin your answers with “yes” or “no” whenever possible. Answer the question first and then explain. By doing that you will appear to be both responsive and candid.

(4)  Never nod your head when the other candidate says negative things about you.

(5)  When you talk about the other candidate, look at the audience or the camera, not at your opponent. In addition, occasionally gesture dismissively toward your opponent.

(6)  avoid any defensive posture. Do not cross your hands in front of your crotch or cross your arms over your chest or cross your arms behind your back or put your hands in your pockets. Keep your hands apart so that people see you have no need to protect anything about yourself and that you are totally open.

Since were dealing with communication and persuasion we need to look for accurate information that helps us do our job for our clients as well as possible for us.

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DEPOSITION OF TREATING DOCTOR WHO REFUSES TO MEET WITH PLAINTIFF ATTORNEY

Some time ago plaintiff lawyers experienced a problem in Washington State when treating doctors  refused to meet with or discuss their patient’s case with plaintiff lawyer. Some insisted they would not meet at all and some would only meet if “their” lawyer was present. It made no difference if the doctor was provided all the legally required medical release documentation. In some cases it was a policy the majority medical malpractice carrier had adopted as a policy for it’s medical insured’s and in some cases it was risk management at hospitals or medical clinics who were behind the policy. The result was having to depose treating doctors without having talked to them informally.

The other day a colleague reported that her client’s treating doctor had adopted this position with her. I went over my past notes and I am providing a discovery outline preamble in such a case. My opinion is that a physician who takes this position is no friend of the patient or lawyer so I’m not concerned about “alienating” them. I want a good record at deposition for use at trial if I have to take the witness on and I want to be in a position to lay a foundation if it is the right way to deal with trial testimony. Plus, it might intimidate the physician into honest testimony.

PREAMBLE TO DEPOSTION OF TREATING DOCTOR WHO REFUSED TO
MEET WITH PATIENT’S LAWYER

A. DOCTOR – PATIENT RELATIONSHIP INVOLVED

1. (NAME) Is your patient?
2. When first became patient?
3. Still your patient as of today?

B. AMA CODE OF MEDICAL ETHICS

1. Do you agree that the medical profession is obligated to follow ethical standards which are primarily for the benefit of patients?
2. Do you agree that a physician has a responsibility to patients first and foremost?
3. Do you agree that the practice of medicine in the clinical relationship between patient and physician is fundamentally a moral activity?
4. Do you agree that the relationship between a patient and a physician is based upon trust?
5. Do you agree that the physician’s ethical obligation is to place the patient’s welfare above the physicians own self-interest?
6. Do you agree that patients have the right to be advised of any conflicts of interest their ` physician may have in respect to their care?
7. Do you agree with this principle of medical ethics: A physician shall, while caring for a patient, regard responsibility to the patient as paramount?”
8. Do you agree that medical evidence is critical in a variety of legal and administrative proceedings?
9. Do you agree that as professionals with specialized knowledge and experience, physicians have an obligation to assist in the administration of justice?
10. Do you agree that when a physician testifies about their patient’s care and treatment, they must hold the patient’s medical interest’s paramount by delivering honest testimony?

(NOTE: THESE ARE BASED UPON THE AMA CODE OF MEDICAL ETHICS:)

[1] The AMA’s Code of Medical Ethics offers ethical guidance for the medical profession and centers on the physician-patient relationship. It sets ethical guidance to how physicians should interact with patients. The AMA believes all physicians should uphold the ethical standards set forth in the Code. First developed in 1847, the Code is regularly updated through reports and opinions of the Council on Ethical and Judicial Affairs (CEJA). CEJA’s role is to analyze and address timely issues confronting physicians and the medical profession.

[1]  The medical profession has long subscribed to a body of ethical statements developed primarily for the benefit of the patient. As an American Medical Association are not laws, but standards of conduct that define the essentials of honorable behavior for the physician.

[1] member of this profession, a physician must recognize responsibility to patients first and foremost, as well as to society, to other health professionals, and to self. The following Principles adopted by the

[1] The practice of medicine, and its embodiment in the clinical encounter between a patient and a physician, is fundamentally a moral activity that arises from the imperative to care for patients and to alleviate suffering.

[1] The relationship between a patient and a physician is based on trust, which gives rise to physicians’ ethical responsibility to place patients’ welfare above the physician’s own self-interest

[1] Physicians can best contribute to a mutually respectful alliance with patients by serving as their patients’ advocates and by respecting patients’ rights. These include the right:  …

(h) To be advised of any conflicts of interest their physician may have in respect to their care.

[1] VIII. A physician shall, while caring for a patient, regard responsibility to the patient as paramount.

[1] Medical evidence is critical in a variety of legal and administrative proceedings. As citizens and as professionals with specialized knowledge and experience, physicians have an obligation to assist in the administration of justice

[1] Physicians who testify as fact witnesses in legal claims involving a patient they have treated must hold the patient’s medical interest’s paramount by: (e) Delivering honest testimony. This requires that they engage in continuous self-examination to ensure that their testimony represents the facts of the case.

C. REFUSAL TO MEET

1. You are aware I am the attorney for your patient?
2. On (TIME FRAME) I provided you with all legally and ethically required documents authorizing you to share medical records and medical information about (NAME) with me to assist in their legal claim?
3. You are not being sued in the legal action, are you?
4. Your patient requested that you cooperate with me as their attorney regarding your medical care and treatment of (him/her)
5. You knew I was your patient’s lawyer when I contacted you?
6. I asked to meet with you to discuss your patient’s care to assist with the legal claim?
7. However, you refused to meet with me or discuss the patient care unless legally required to do so by subpoena or legal deposition?
8. As a result, I had to legally require you to testify here today under oath about your patient?

D. REASON FOR REFUSAL

1. Did you talk to anyone about whether you should meet with me or discuss the case before you refused to do so?
(1) Who?
(2) How many times?
(3) What was discussed?
(4) Why did you refuse to help your client by discussing the care with their lawyer?

E. FOLLOW UP DEPOSITION

Here you would proceed with the informational part of the deposition.

Post Script: A lawyer I respect asked why I just didn’t ask the reason the witness refused to cooperate. Here’s my response:  It depends entirely on your style.

Mine is to always focus on credibility in cross. Witness might have a credible reason or give short explanation. Witness may give negative testimony about patient. I really am not interested in the simple reason. That’s not my focus.   I want enough fundamental concessions about fiduciary duty to patient and conflicts of interest (insurance or risk management issues) to hammer the witness with at trial if required. Either way the witness responds to the ethics questions gives plenty of room to do this at trial. A denial would be worse that a yes answer. The way I want to structure my  exam is to have jurors seeing their doctor on the stand and how they would want their doctor to act and respond.

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UNDERSTANDING THE REALITY OF SUFFERING FROM INJURY

Both temporary and permanent injuries usually result in suffering. Lawyers who represent clients with injuries need to try to understand, as much as possible, the consequences of suffering clients endure. Here are some factors to consider in that regard.

Past suffering impacts our future life enjoyment 

Everyone is the product of their past experiences. Past experiences which involve injury and medical treatment can influence not just our present life, but carry over into our future as well.  Past experiences can rob people of their memories and stimulate their fears and worries.  If our past experiences involve pain, suffering and anguish it will also impact how we see and experience our future as well.

Suffering influences our relationship with others 

All of us are a part of a culture and a society. We all belong to a family, or a group or tribe with common rules and values. Suffering from injury can influence the behavior of members of the culture towards an injured person. The reaction of the culture or group can add to the pain of injury because of a change of relationship with their family or cultural relationships. The reaction can be one of acceptance, pity or isolation.

Suffering alters our roles in life 

We all have roles in life. Roles can involve our job, our marriage or other activity important to us. These roles often define who we are. When suffering from injuries interfere with a person’s life role, the person feels diminished by the loss of function that has become part of what makes them unique. When roles are firmly established suffering from injuries can cause a destruction or interference with performing this role. The result is additional suffering that diminishes who they are and their role in life.

Suffering interferes with relationship 

We all need relationships. We need contact with others. There is no consciousness without others, no speaker without a listener and no act that does not somehow encompass others. Suffering from injuries can change relationships. Injuries and the by product of suffering can produce a new personality, even a totally different person. What was once loved in the injured person can be taken away by the suffering and change that injury produces. Without the same relationship the person is diminished. It is in the relationship with others that the full range of human emotions finds expression and suffering can change the extent and nature of important relationships for everyone involved.

Injuries can cause suffering over a feeling of injustice 

People have an inherent sense of right and wrong. They believe wrongs should be redressed. Suffering from injury can represent to them an unfair situation without the ability to remedy the wrong. Instead they must endure it. This can create a feeling of powerlessness to remedy the unfair situation resulting in resentment and suffering.

Suffering interferes with our normal activities 

People are known by what they do daily in life. People have many set ways or habits in their day to day behavior. They take pride in these activities. Performing enjoyable functions, skills or hobby is often an essential part of who we are. When suffering keeps us from performing these activities, due to their injuries, people feel they are not the whole person they once were enhancing their suffering.

Suffering changes our self-image 

Everyone knows the importance of self-image. Who we are and how we see ourselves defines us. We are what we see ourselves as being. The mental relationship we have with our body and how we see ourselves is our own reality. We are what we believe. Injury and suffering from injury can alter the self-image and change the relationship a person has with their body in way that increases the pain.

Suffering impairs future hopes and dreams 

Everyone has hopes and plans for their future. Many people have a secret dream or imagined goal which may be known only to them. They may have aspirations hopes and goals. Suffering from injury can destroy their hope for ever realizing them. It may only have been a dream, but the loss of it can cause great distress and intense pain. The loss of future, hopes and dreams causes suffering which continues in life.

Suffering can impair our spiritual beliefs 

Almost all people have a spiritual life. This is usually expressed in religion but can be a bonding with groups, ideals or anything larger and enduring more than themselves. This quality of being greater and more lasting than one’s individual life gives a person a sense of a timeless dimension. Suffering can create questions about this belief by raising questions and challenging faith. When a person’s transcendent dimension is impaired or lost, it is felt as pain and suffering.

CONCLUSION 

Suffering resulting from injury and treatment for injuries doesn’t impact only the body, but the mind and the person as a human being as well. The more we understand our client’s suffering that is not strictly due to the physical injury, the better we can represent them.

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