I’ve written before about my belief that your trial notebook (and deposition notebook) should contain basic check lists or outlines for every examination you conduct whether you are an experienced or inexperienced trial lawyer. All of my outlines are very simple and basic. For each examination I revise them to fit the particular situation involved. I use them as a reminder list to be sure I cover each point I need to cover. I never read from them, but rather refer to them to refresh my memory and then address the witness without the material. Here is a most basic direct examination outline for a treating doctor.
DIRECT – TREATING DOCTOR
1. Name – professional address
>plaintiff’s doctor? Asked you to tell jury about him?
(1) board certification/significance
4. Professional experience
5. Special qualifications –seeCV if any
B. EXAMINATION OF PLAINTIFF – See Clinic Records
1. Significancehow obtained
D. Physical EXAMINATION
1. Conclusions reached: x rays, medical illustrations etc
F. HOSPITAL CARESee Hospital Records
1. Significant entries:
(2) pain medication
G. BRACES/SPLINTS etc
1. Cane/walker/brace/cast – why & for how long
H. PRESENT CONDITION
1. Last exam – conclusions
1. Permanent injury?
2. Effect in future
(1) earning ability
(2) activity: walking, climbing, kneeling etc
(3) family life/activities
(4) loss of enjoyment of life: pain/discomfort
3. Future treatment required?
(1) nature/expense – reasonable probability
4. Life expectancy impacted?
1. Mechanics of how accident causes these injuries
2. Proximate cause of injury: reasonable probability
1. REASONABLE AND NECESSARY
1. Opinion re plaintiff honest or exaggerated/fake
2. Cooperative with you re treatment
I like to have in my notebook outlines for the direct examination of witnesses. For many experts a standard outline can be created that you can use from case to case by using it as a checklist of matters to be sure to cover. They don’t have to be complicated, just complete. Here’s one that is intended for use with your expert economist. A.QUALIFICATIONS1. Name & address2. Profession3. Present employment4. Formal education(1) degrees obtaineda. whenb. where5. Publications6. Professional societies7. Professional honors and awards8. Qualified as an expert witness on the subject of economicLoss before?a. how many timesb. both state and federal courtsc. how many statesB. WHEN FIRST CONTACTED1. When first contacted2. What asked to do (Make appraisal of economic loss)3. Have you arrived at expert conclusions in this regard?C.. DEFINITIONS & EXPLANATIONS1. What factors did you consider in arriving at yourConclusions in this case?Inflation(1) what is inflation(2) history of inflation *use posters/advertisements as exhibitsPresent value(1) what is present value(2) have you made a study of interest rates?(a) what did study show?(3) how are present value and interest rates related?Future costs(1) explain historical relationship between costs of things in future and interest rates(2) can you predict future rate of inflation?(3) are you doing that in your calculating? ExplainEarning capacity(1) what is earning capacity(2) how did you determine present value of future earnings?a. Compare history of future earnings to earningRates(1) how do you use net discount factor to compute present value of future lost earnings o.t. future costs? Explain(2) what effect would more or less inflation in the future have on your calculations of economic lossFringe benefits(1) did you consider fringe benefits in your calculations?(2) what fringe benefits available you considered?Other factors(1) did you consider any other factors in your calculations we haven’t discussed or explained?D. CONCLUSIONSWhat conclusions have you arrived at and why?Have you included any non-economic loss such as disability, pain & suffering, loss of enjoyment of life etc?At the end of life how much of this money would be left?Assume hypothetically we knew that by some miracle inflation is not going to go up but will drop to zero and no interest could be earned on the jury award in the future, would it be necessary to reduce the award as you have to present cash value? Explain.If the law allowed ____________ to report back once a year and evaluate how much had been spent, what interest rates had been and how inflation had grown and award an amount to compensate him for his economic losses we wouldn’t need to go through this analysis of reduction to present cash value would we?a.However, the law doesn’t allow us to do that. We get one jury trial one time in life at which time all damages past and future must be set by thejury?Have you made as accurate calculations as you can to make sure you are giving the jury the most reasonable amount to cover the economic loses so that at the end there is nothing left of the money awarded?E. DEFENSE ANNUITY REBUTTAL1. Length of time quotes good for2. Risk3. Price not available to guardian – phone quote for litigation4. Double discounting and reducing twice by this methoda. “Voodoo economics” to pretend to be able to change a $7m expense into a $3m by annuity5. His expert opinion re use of annuity calculations in this case?F. ANALYSIS OF DEFENSE ECONOMIST REPORT(1) see figures used by defense expert – ask what was left out(2) his analysis of fairness and accuracy of calculations(3) neither he nor defense witness deal with non economic damages such as loss of enjoyment of life(4) figures are conservative