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I’ve written before about making objections at trial. http//plaintifftrial lawyer It is not a simple subject. My inclination is to avoid making objections even when I could except when it is truly called for. We know that an objection calls attention to the subject involved so some thought about what to object to is important. On the other hand jurors have watched enough television that they expect the lawyer to object. I don’t think objections in general are a problem for jurors. However,  I’ve tried cases  against lawyers  who object all the time and jurors really do resent those lawyers especially when it means they have to go to the jury room.  The real question is what you object to and how you object.

I’ve previously written that the fact that one has the right to object doesn’t mean you should object. My general policy is that I object when (a) there is a violation of a pretrial motion in limine since  if it was important  enough to move on  in advance  of trial it  is important to object to a violation of the order  (b) to evidence which is inadmissible and prejudicial enough that it would be difficult to deal with it simply by opening the subject on re-examination with the witness (c) it involves personal attacks on the witness for which intervention is called for  to protect the witness from abuse- Note that in some cases it is better not to intervene for abuse of a likable witness where juror anger against  the other  lawyer  exists for doing it (d)  it involves issues which require a record to be made by objecting and (e) there are other compelling reasons for objecting.  Like a strike zone in baseball, you need to develop a skill of knowing when an objection should be made and lean towards  avoiding objections during trial.

More important than the question of whether one should object,  is the issue of how one should object A trial is a battle of depression and not logic. We create impressions by our conduct, our body language, voice and general demeanor. Anger and outrage rarely work to our advantage. Calm professional words demonstrate self-confidence and authority. When we object correctly we are perceived as simply doing our job as a lawyer. We can however create the  impression that we are trying to hide something by overreacting. If we are going to object let us do so in a way that is not offensive to the judge or jury and which communicates our professional skill.

I have a friend in Nashville Tennessee, Randall L Kennard who is a gifted plaintiff’s trial lawyer and a member with me in the Inner Circle of Advocates, a national plaintiff’s trial organization. We agree about many things regarding plaintiff’s trial work. Recently he communicated with me regarding his view about objections during depositions. The subject of deposition objections and representing clients and witnesses at a deposition involves somewhat different considerations than that of trial objections. But, since our practice has become one where discovery represents the greatest portion of our work compared to trial,the subject is important.

Randy writes that defending a deposition is actually very strenuous. Here’s what he said to me:

“I used a box. It takes a lot of energy to give a beating. It takes a lot to take one as well. So, our job is very hard. It requires constant vigilance and watching the defense attorney during the deposition questioning. Pay attention to the facts of the case and what the witness has said. When the defense attorney attempts to use a compound question, with the first part being false and the second part true, you must object to form. We should not let the defense use such tactics.”

As Randy pointed out to me, “do not be hesitant to object to form if there is any doubt as to whether you should object to the question or not” during the deposition you are defending.

The subject of objection during discovery is actually an important and difficult area  of  practice.  Defending a deposition is only one  aspect. For example, when you get the rubber  stamp objections to every interrogatory, do you move to compel or do you submit additional, more specific questions about the objection until you have a clear abuse demonstrated before you move? My experience is that judges do not like discovery disputes  and especially those that require going over interrogatories. They really tend to be reluctant to do much about these issues. Instead of filing a motion, is there a 30(b)(6)  deponent you can depose and ask the objected to interrogatories about rather than move?

And, what do you do about the defense lawyer  who objects to virtually every question at the deposition and otherwise does whatever they can to obstruct your taking a deposition? You can’t get a discovery master  in every case. Judges don’t want to get  a phone call about two lawyers arguing about questions and don’t want to hear the dispute on motion either. How do you respond? Do you recess the deposition or continue to the end for a full record of abuse of discovery by the defendant’s lawyer?

The ABA created a video some years back of a staged deposition being taken by a young woman with an older male defending it. The lawyer defending it was condescending, abusive and obstructive  to the extreme. It was  a teaching video, but not far from the reality in a lot of depositions. While at some point it is only logical to recess the deposition and ask for relief from the court, it is more often the better tactic to remain calm, make your objections clearly and briefly and move on. The more the argument between counsel, the less clear it is who is at fault.

The lesson for me is that the right to object is a valuable tool. It should be used whenever it is important to do so to protect the record. It should be done when it is tactically important, but not every time you are entitled to do so. And, it should be done calmly, professionally and rationally.  My thanks to Randy.


It didn’t take me many mediations or settlement conferences to figure out that if I didn’t get  it in writing when the deal was made there would be problems. Call it buyers remorse or just lawyers being lawyers  there would be proposed revisions and issues raised we never discussed or had already resolved. If you allowed the other side or the mediator  to try to put the deal in writing it took too long and it opened the door to further discussions. As a result I prepared a form memorandum with copies that I had with me. As soon as there was verbal agreement I  would take the position it  wasn’t settled until the parties had signed my memorandum. This presented the other side with a written form that could be altered but only in writing and which prevented after thought controversy.

What follows is a basic memorandum which would have to be revised for whatever might be needed in your practice or jurisdiction, but which is simple, covers the major points and excludes after deal dickering. We have actually filed motions to enforce these memorandums on occasions when the defense wanted to back off of something or change it. Also, this form has no provisions  for  issues under Medicare, ERISA, Obmacare or specific lien or subrogation claims.  These would be added as needed.


The parties have agreed to settle this case on the following terms.  Settlement documents in conformance with this agreement will be prepared and signed by the parties in conformity with these provisions which are final.

1.         DEFINITIONS

1.1       “Plaintiff” refers to the persons claiming damages in this case. “Defendant” refers to the persons or legal entities against whom the claims are made.

2.         AMOUNT TO BE PAID 

2.1       Defendant shall pay plaintiff, in full settlement of all claims, the sum of



3.1       This is a lump sum settlement to be paid by check or draft.

3.2       The check or draft shall be made payable to “Luvera, Barnett, Brindley, Beninger and Cunningham, in trust for $                                                                                   

3.3       The check or draft shall be deposited in an interest bearing trust account (Tax ID xx-xxx-xxxx). No disbursement shall be made until the final release documents are signed and any required court approval has been obtained. 

4.         TIME OF PAYMENT 

4.1       The check or draft payable upon deposit shall be delivered to plaintiff’s attorneys within ______days from the date of this agreement. It is understood this payment shall be made with the understanding there will be additional   release documents including orders of dismissal at a later time.  twelve percent per annum interest shall apply from the date of the money should have been available from the date of the agreed delivery of the check or draft.

4.2       Defendant agrees to deliver to plaintiff’s attorneys all release or other settlement documents within ________ days of the date of this agreement.


5.1       Neither the Plaintiff(s) nor their attorneys agree to any kind of  secrecy or confidentiality regarding any aspect of this case or settlement.

5.2       Plaintiff clients or the Guardian or Personal Representative will sign release documents and an agreement to hold defendant(s), their insurance company and attorneys harmless from payment of subrogation or liens in connection with this case, but reserving to them the right to negotiate settlement for less then the amounts claimed.  No one will be released except the defendant(s) who are a party to this agreement and their named agents or employees. The release documents shall only apply to the parties signing this agreement Any additional claims of plaintiff are hereby reserved to all other persons or entities.

5.3       The language of the release documents shall conform to the terms of this settlement agreement which contain all of the agreed terms of settlement. No other provisions shall be added to the final release documents that are not specifically set out in this memorandum.  This is a mutual release of all parties to this agreement.  Defendant also agrees to release any and all claims defendant has against plaintiff arising from this incident.

5.4     If minor child or other court approval is required, plaintiffs agree to be fully responsible for the approvals required. It is agreed that if such approval is required plaintiffs attorneys will retain the settlement monies in their trust account until such approval is approved.

5.4  Other provisions:________________________________________

Dated this ___day of ____20____

Plaintiffs                                                                                              Defendants

______________________  ______________________________


Well, after seven weeks the case finally went to the jury and after  a day and a half of jury deliberations we had a verdict. I’ve neglected this blog due to the trial for too long, but I’m ready to report back to you. Here’s my report.

The verdict wasn’t a bell ringer, but it was unusual in that the injured client was never deposed or in the  courtroom and was seen on only a few minutes of video during trial.

The case involved an elective laser surgery to correct hoarseness in a 53 year old single woman. It was supposed to be a ten minute surgery and she was going too go  back home the same day but there was an airway fire in her throat  during the surgery. She had to be airlifted from a small hospital on the Eastern  side of the state to Seattle where she remained 5.5 months on a ventilator while multiple surgeries to remove burned tube material and scar tissue  were done. From there she transferred to a nursing home in Spokane,  on the Eastern, side of the state where she is today and was almost  two  years later when we started  the trial.

She was ventilator dependent and had a loss of ability to  talk above a low whisper. We sued the hospital,  the  surgeon, the  anesthesiologist and the ETT manufacturer Medtronic. Our claim was that the surgeon missed the target with the laser, hit the cuff on the tube and started a “blow torch fire” in her airway. The surgeon denied hitting the  cuff. He claimed it was a slow leak around the cuff that ignited which wasn’t his fault. Our claim was  the anesthesiologist negligently kept the oxygen at  100% instead of lowering it for  laser surgery. She admitted she made this  mistake and was found negligent on summary judgment, but denied proximate cause of the fire.

We also blamed the doctors for going ahead with surgery when they had  never used this single cuff tube before and didn’t read warnings and instructions,  plus we claimed they failed to inform the patient about the situation. Both doctors blamed the hospital because they had always used a 2 cuff tube and the hospital only had a 1 cuff available for  them at the  time  of surgery.

Our claim against Medtronic was they knew doctors were “misusing” the product by missing the target with the laser and by not turning down the oxygen but did  not  warn and did  not  redesign their tube. Medtronic said  their tube was safe and it was exclusively doctor negligence.

Our claim against the hospital was they supplied a single cuff instead  of what the doctors asked  for and had not adopted laser safety policies and procedures. The hospital claimed the tube was safe, their policies were appropriate and it  was  not  their fault. Medtronic and the hospital also said hundreds of  thousands of tubes in use with only 8  fires over 13  years history.

The doctors refused to  blame Medtronic at  the time  of their deposition for design or warning during surgery and had no  experts on that issue at trial. When we filed the case our primary defendant was the hospital, but with Medtronic as the maker of the ETT tube as a defendant the venue could be in Seattle instead  of the small county in Eastern Washington where this happened.

The trial court granted  summary judgment against us on  our warning claim against Medtronic leaving design as the sole claim against them. Before the trial began we  reached a settlement with the hospital for $12M and the case proceeded against remaining defendants.  Mediation with defendants was  unsuccessful.

Under WA law the hospital is listed as a non  party empty  chair defendant, even though not represented  at trial. Any percentage assigned against it for negligence is deducted from a verdict against the  other defendants but the jury is not told this fact. The empty chair changed the dynamics substantially since we now had to defend the hospital and our previous discovery had done the opposite plus we now had conflicts in arguing hospital non liability while arguing Medtronic liability.

There were lots of expensive  experts. One defense expert for Medtronic said his fee was between $150 – $200K. . The defendants made an aggressive attack on damages. They had a world  renown Toronto doctor testify he could install a T tube which would  immediately get her off the ventilator saving millions in care costs and  that the treating doctors weren’t treating her right. A defense doctor  from Spokane, where her treating doctors were located, said our treating doctors could wean her from ventilator and they weren’t doing it.  Both testified she would be dead in 5 years anyway and one of our  treating doctors had implied the same thing – a fact they seized upon – so our projected costs they sa! id were greatly excessive anyway.

They hired a cost of care expert who said our costs were wrong and had four options for her which were a fraction of our costs. The defense spent more time attacking damages than I’ve ever seen in past cases. They had a defense economist and a defense life expectancy expert who were not called but were referenced in trial.

The jury asked a lot of questions of  every  witness except one: the defense doctor from Spokane for whom they had no questions.

Our client was never deposed and never in the courtroom at any time. I showed a 1 minute video of her being suctioned. A 45 second video of the noise the alarm makes on her ventilator rather often and a 3 minute video  without sound of her mouthing words to her sister all in the nursing home. Nothing else except three or four family members briefly and the treating doctors. Defendants also had two jury consultants with them. We had none present.

The judge limited time for argument. I had 35 minutes to argue our damages  & percentages of fault while each defendant had an hour to argue. It was frustratintg. I argued for 1% negligence  against the hospital. I suggested an equal division of fault among the  remaining defendants. The jury found no negligence for informed consent. The jury found the hospital 5% at fault. It found  no negligence as to Medtronic and assigned 42.5% fault against the  surgeon and the rest against the anesthesiologist.

I argued for $2.6 in past economic and $7.9M in future economc loss. Her normal life expectancy is 26 years. I argued no one knew her  real life expectancy, but used 14.5 years as a conservative number for  cost of care.The jury awarded my figures for economic loss. The jury awarded $8M for a total verdict of 18M and with the $12M  settlement this produced roughly a $30M recovery for our  client.

As always there are lots of war stories, and it should have been a lot more money for this poor woman’s injuries, but enough of you have asked about the case I thought I’d share this.