nbi seminar defense strategies in personal injury cases

DEFENSE STRATEGIES IN PERSONAL INJURY CASES

October 31, 2008 · CONFIDENTIAL MATERIALS

TABLE OF CONTENTS

I. Ethical Considerationsa. Defining the Tripartite Relationshipb. Applicable Rules of Professional Conductc. Minimizing Litigation Costsd. HIPAA and Other Privacy Issues

II. How to Take a Plaintiff’s Depositiona. Determining Your Goalb. Organizing the Depositionc. Sample Plaintiff Interview

ETHICAL CONSIDERATIONS

Defining The Tripartite Relationship

client

Insurer

Attorney

The tripartite relationship is generally defined as the litigation triangle formed by the client, the client’s insurer and the attorney.

Make no mistake the client is the most important cog in the tripartite relationship. Both the insurer and attorney must take the utmost care to fulfill their obligations to the client.

Part of the attorney’s role will be to oversee and protect the client’s interest with regard to the insurer.

Rules of Professional Conduct as They Apply to Personal Injury Practice and the

Tripartite Relationship

Rule 1.1 Competence

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

Rule 1.2 Scope of Representation

(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.

(b) A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities.

(c) A lawyer may limit the scope and objectives of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.

(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

Rule 1.2 Comment 6

Agreements Limiting Scope of Representation[6] The scope of services to be provided by a lawyer may be limited by agreement with the client or by the terms under which the lawyer's services are made available to the client. When a lawyer has been retained by an insurer to represent an insured, for example, the representation may be limited to matters related to the insurance coverage. A limited representation may be appropriate because the client has limited objectives for the representation. In addition, the terms upon which representation is undertaken may exclude specific means that might otherwise be used to accomplish the client's objectives. Such limitations may exclude actions that the client thinks are too costly or that the lawyer regards as repugnant, unethical, or imprudent.

Rule 1.4 Communication

(a) A lawyer shall:

(1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(e), is required by these Rules;

(2) reasonably consult with the client about the means by which the client's objectives are to be accomplished;

(3) keep the client reasonably informed about the status of the matter;

(4) promptly comply with reasonable requests for information; and

(5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law or assistance limited under Rule 1.2(c).

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

Rule 1.4 Comment 1

[1] Reasonable communication between the lawyer and the client is necessary for the client effectively to participate in the representation.

Rule 1.4 Comment 2

[2] If these Rules require that a particular decision about the representation be made by the client, paragraph (a)(1) requires that the lawyer promptly consult with and secure the client's consent prior to taking action unless prior discussions with the client have resolved what action the client wants the lawyer to take. For example, a lawyer who receives from opposing counsel an offer of settlement in a civil controversy or a proffered plea bargain in a criminal case must promptly inform the client of its substance unless the client has previously indicated that the proposal will be acceptable or unacceptable or has authorized the lawyer to accept or to reject the offer. See Rule 1.2(a).

Rule 1.7 Conflict of Interest

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

(1) the representation of one client will be directly adverse to another client; or

(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;

(2) the representation is not prohibited by law;

(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and

(4) each affected client gives informed consent, confirmed in writing.

Rule 3.1 Meritorious Claims

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.

Reconciliation

• How do we reconcile the Rules of Professional Conduct with the Tripartite Relationship?

• Can we represent both and still be in compliance with the Rules of Professional Conduct?

• What if there is a conflict between the client and his/her insurer?

Case Law

The Indiana Supreme Court in Cincinnati Insurance Company v. Wills, 717 N.E.2d 515 (1999), held: “There are plainly many situations where representation of both an insured and the insurer is inconsistent with the Rules of Professional Conduct. However, the issue in this case is whether these potential conflicts are so inherent in the representation that it is a violation of the Rules of Professional Conduct to enter into the arrangement in the first place. We think not.”

Case Law

“Whether the attorney is an employee or an outside lawyer, the debate focuses on whether only the insured or both the insured and the insurer should be viewed as the client. We think it unrealistic to ignore the client relationship with both. Joint representation may become problematic, particularly if issues of disclosure of confidences arise. For example the attorney may gain information from the policyholder-client that may affect the insurer-client's coverage obligation. But that is no basis for prohibiting the arrangement in all cases. Whatever issues joint representation raises appear to be wholly independent of the attorney's status as an employee of the insurer or a member of a law firm. Second, there is nothing inherently wrong in common representation of two parties where their interests are aligned.” Cincinnati at 161.

Case Law

“If a conflict arises, it will have to be handled, and there are a variety of means to do that. But a vast number of claims have been and presumably will be handled with no significant issue between the insurer and the policyholder. Interests of economy and simplicity dictate that this be permitted to continue. Any abuses can be handled on a case-by-case basis rather than by adoption of the broad prohibition the Wills seek. Although issues may arise in dual representation, none are apparent in this case. In any event, Celina has by contract subordinated its interests as a client to those of Suter. Presumably, this resolves by agreement the priority of counsel's obligations if, for example, counsel learns of information that affects the insurer's and the policyholder's interests differently.” Cincinnati at 161.

Potential Problems

• Non-cooperation of the client—do you tell the carrier the client has been unresponsive?

• Possibility of excess exposure—make sure the client knows (s)he may be subject to an excess exposure and has the right to hire independent counsel.

• Reporting to the client—see Rule of Professional Conduct 1.4, comment 2.

• Who decides how much to spend in defense of the case? What if you think you need an expert but the insurer doesn’t want to incur the costs?

Minimizing Litigation Costs

Ideas on How to Keep Costs Down

• Open dialogue with opposing counsel early—find out what (s)he needs to put the case in a position to settle, you might not be that far apart on your evaluations



• Early mediation



• Early mediation

• Refrain from issuing non-party discovery



• Early mediation• Refrain from issuing non-party discovery

• Don’t order deposition transcripts (beware of angry court reporters)



• Early mediation• Refrain from issuing non-party discovery• Don’t order deposition transcripts

• Suggest a medical records review by a nurse or chiropractor (as opposed to a medical doctor) when possible



• Early mediation• Refrain from issuing non-party discovery• Don’t order deposition transcripts• Suggest a medical records review by a nurse or chiropractor

(as opposed to a medical doctor) when possible

• Prepare your litigation budget carefully and be sure to include some latitude for unexpected expenses

HIPPA and Other Privacy Issues

Current HIPAA Rule

SEC. 1177 (a) OFFENSE—Person knowingly in violation of this part--(1) uses or causes to be used a unique health identifier;(2) obtains individually identifiable health information relating to an individual; or(3) discloses individually identifiable health information to another person,shall be punished as provided in subsection (b).(b) PENALTIES.--A person described in subsection (a) shall--(1) be fined not more than $50,000, imprisoned not more than 1 year, or both;(2) if the offense is committed under false pretenses, be fined not more than$100,000, imprisoned not more than 5 years, or both; and(3) if the offense is committed with intent to sell, transfer, or use individuallyidentifiable health information for commercial advantage, personal gain, or malicious harm, be fined not more than $250,000, imprisoned not more than 10 years, or both.

How to Avoid HIPAA Violations

• Do not include Social Security numbers in any documents.• Use HIPAA compliant language in the non-party requests.• Be careful to whom you disseminate medical records.• Even providing records to your client’s insurer can be

considered a violation of HIPAA.

Taking a Plaintiff’s Deposition

Determining Your Goal

What are the Strengths?

• What are the strengths and weaknesses of your case?



• Are you strong on liability?



• Are you strong on liability?• Are you strong on damages?


• What are the Strengths and Weaknesses of your case?

• Are you strong on liability?• Are you strong on damages?• Are you strong on both?


Use this as a guide to determine your goal during the deposition.


Use this is a guide to determine your goal during the deposition.

If you are strong on liability spend the majority of your time asking questions about how or why an accident occurred.


If you are strong on damages spend the majority of your time discussing prior injuries and/or causation.

Don’t spend a lot of time talking about liability if your client was drunk and crossed over the centerline (allegedly).

Organizing the Deposition

Start at the End

A great way to frame your questions for deposition is to prepare jury instructions first.

If you know what you will be required to show at trial to receive a certain instruction, you can frame your questions accordingly.

Start at the End

You might also want to develop your theme of the case prior to deposition. Think about what you want to be able to argue in closing arguments and tailor your questions to get the responses that will be most effective. Chances are you have a pretty good road map from discovery responses.

If your theme is going to be that plaintiff’s inattention led to an accident, focus on getting him/her to tell you all the other things that were going on immediately before or during the accident.

• Was the radio on, were you eating or drinking, do you smoke, were you having a conversation with a passenger?

Don’t Be Predictable!

• I like to vary the sequence of questions based on the facts and the witness.

• If you are reading from an outline, chances are opposing counsel has the same or a similar outline. How are you going to surprise someone that way?

• Don’t read the outline while the answer is being given. All too often I see young and/or inexperienced attorneys looking for their next question and not listening to the answers.

• It keeps the witness back on his/her heels and does not allow them to be thinking a few questions ahead.

• If every question is a follow up to the question before it people will catch on.

Mediation or Trial?

• I will approach a deposition differently if I think the case has a chance to settle at mediation.

Mediation or Trial?

• I will approach a deposition differently if I think the case has a chance to settle at mediation.• If I believe we can mediate successfully I won’t hold anything back

at the plaintiff’s deposition. I’ll give my opponent all the ammunition I have to push the settlement value of the case down.

Mediation or Trial?


at the plaintiff’s deposition. I’ll give my opponent all the ammunition I have to push down the settlement value of the case.

• Springing the smoking gun (provided you have a smoking gun) on them at mediation gives opposing counsel no time to explain to his client how this impacts settlement value.

Mediation or Trial?


at the plaintiff’s deposition. I’ll give my opponent all the ammunition I have to push down the settlement value of the case.

• Springing the smoking gun (provided you have a smoking gun) on them at mediation gives opposing counsel no time to explain to his client how this impacts settlement value.

• Bringing this out in the deposition also gives you an idea how the plaintiff will react to surprising information should you be forced to try the case.

Mediation or Trial?

• If you know the case is going to trial, hold some of the really good stuff back.

Mediation or Trial?

• If you know the case is going to trial, hold some of the really good stuff back.• If you know about a prior conviction that will be admissible, let

them deny they have been convicted during the deposition, but don’t let them know you have evidence that will bury them at trial.

Mediation or Trial?



• If they have denied any prior back or neck problems, and you have records that show a pre-existing condition, let it go at the deposition and save it for trial where it will have the most impact.

Mediation or Trial?



• If they have denied any prior back or neck problems, and you have records that show a pre-existing condition, let it go at the deposition and save it for trial where it will have the most impact.

• This can be risky so make sure you have thought the process through completely—like making sure you can get the evidence in at trial. If it is inadmissible you waste any chance of it having an impact.

Often Overlooked Information

• Ask about clubs or churches to which he/she belongs.• Ask about community involvement.• Ask about their last vacation. This often times disputes

claims of being unable to sit or stand for long periods of time.

• Make sure to get all the names of doctors and medical providers so that additional non-party requests can be sent after the deposition.

• Pin down dates of when injuries resolved.• Ask about gaps in treatment.• Ask how they found their treating physician. Often

times you will see a plaintiff from the south side driving to a doctor or chiropractor an hour from home because of an attorney referral.

Prepare, Prepare, Prepare!

• The best tool you have just may be an aggressive paralegal. If the case warrants it send out all the non-parties you can to obtain all the medical and work history possible.

• If plaintiff’s counsel objects to the scope of your non-party requests (includes mental health or substance abuse records), chances are you are on the right track.

• Consult with co-defendant’s counsel to see what information they received.

• Pull motor vehicle records. • Do a google search.• Look on Facebook and My Space pages.• Make sure you have a medical chronology.

Samples From Plaintiff’s Depositions

How Did You Find Your Doctor?

9 Q Mr. [Plaintiff’s Attorney], is he the one who told you about10 Dr. Mandel?11 A Yes.12 Q What did he tell you about Dr. Mandel?13 A That's where we would be having our treatment done14 by.15 Q And that was okay with you?16 A Yes.17 Q You didn't have any other doctors in mind or18 anything like that?19 A No.

nbi seminar defense strategies in personal injury cases

Documents

client isnecessary

client thinks

scope of representation

objectives of representation

limited representation

lawyers representation

competent representation

clients objectives