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Understanding the Convictions and Beliefs of Potential Jurors Helps You Win

The most difficult subjects can be explained to the most slow-witted man if he has not formed any idea of them already, but the simplest thing cannot be made clear to the most intelligent man if he is firmly persuaded that he knows already, without a shadow of doubt, what is laid before him.” These lines were written by Leo Tolstoy and I saw them in an email from Harry Plotkin, who is a jury consultant in Monrovia California.

Tolstoy’s words are applicable to all, but what’s important to us is how does his thinking influence our jury selection? How can we attempt to gain advantage during jury selecton?

In his email Mr. Plotkin makes following pretty remarkable statement:

I have consistently found that a juror’s level of education, intelligence level, and understanding of the case (measured by objective comprehension of the facts) has no significant impact on individual verdicts. I have never once found educational attainment to be a statistically significant factor in predicting verdict.

What all jurors have in common is that they consistently impose their own values and ideas about right and wrong or fair and unfair on your case. In order to have the best chance at success you need to try to understand each potential juror. What are their values and whether they have life experience that makes them think (rightly or wrongly) that they understand your case.

Why must you understand the jurors? Obviously, you want to remove jurors who are hostile to your client or case theme from the begining. But more importantly, you must understand each juror because you need totailor your message–the theme of your case– to these individuals. And you must find a way to convince the jurors that you, the attorney, are the truth teller. The person they can depend upon to explain the case in a way that fits with the convictions and feelings they bring to the jury.

In October of 2010 the author obtained a $3 Million jury award after a thirty day jury trial. Experienced trial counsel can make the difference between success and failure in the courtroom.

Call 800 486-6814 for a free consultation with Galen Gentry

The Seven Types of Brain Injuries Most Commonly Associated With Negligence And Malpractice Lawsuits

There are many types of brain injuries; however, the injuries which are most commonly the focus of negligence lawsuits are the following:

1) A penetrating brain injury — a tearing of the brain from a skull fracture for example, or a gun shot wound. These injuries cause ruptures of large blood vessels with bleeding into the brain and the subarachnoid space. Penetrating brain injuries also allow bacteria to enter into the brain and can result in infections such as encphalitis and meningitis.

2) Contusion — a visible bruising of the brain due to trauma or blood leaking from blood vessels.

3) Hematoma – brain damage resulting from leaking blood collecting in a confined area of the skull. Hematoma can be subderal or epidural, or intracerebral.

4) Concussion — a mild blow that can cause shearing of brain cells at a level undetectable by CT scans or MRIs. Concussions are much in the news because soldiers in Afghanistan and Iraq, as well as football players, often suffer from concussions. The military and sports medicine professionals have made great strides in diagnosing concussions as well as acknowledging the need for treatment of concussion injuries.

5) Anoxia/Hypoxia — brain cell death resulting from brain cells receiving no oxygen (anoxia), or not enough oxygen (hypoxia). The brain requires a constant flow of oxygen to function normally. A hypoxic/anoxic injury also known as HAI essentially starves the brain of the oxygen and prevents it from performing vital biomechanical processes. The diminished oxygen supply can cause serious impairments in cognitive skills, as well as in physical, psychological, and other functions. Anesthesia accidents and cardiovascular disease each account for just under 1/3 of cardiac arrests according to a 1999 study. The most frequent cause of hypoxicischemic injury is cardiac arrest.

6) Diffuse Axonal Injury — a shearing of cell connections due to rapid acceleration/deceleration motion of the brain during trauma. This often results in global damage. Diffused axonal injury is one of the most common and devastating types of traumatic brain injury. The damage occurs over a more widespread area than over a more focal injury. DAI which refers to extensive lesions in white matter tracts is one of the major causes of unconsciousness and persistent vegatative states after head trauma. It occurs in about half of all cases of severe head trauma and can also occur in moderate and mild brian injury. Vehicle accidents are the most frequent cause of DAI; it can also occur as the result of child abuse such as Shaken Baby Syndrome.

7) Coup-contrecoup Injuries — at least 2 injury sites from one blow caused by the brain bouncing back and forth against the skull is the definition of a coup-contrecoup injury. A coup injury occurs under the sight of impact with an object. A contrecoup injury occurs on the side opposite the area that was impacted. Coup and contrecoup injuries are associated with cerebral contusion, a type of trauamtic injury in which the brain is bruised. Coup and contrecoup injuries can occur individually or together. When a moving object impacts stationary head coup injuries are typical. While a contrecoup injury is often produced when the moving head strikes a stationary object.

If you or a loved one has been injured through the negligence of another whether in an accident or medical malpractice setting contact the injury specialists at the Law Offices of Galen Gentry for a free, no obligation consultation.  Call 800-486-6814. We will explain your rights, and why we are the right firm for you. (Want to know how we differ from our competition? Click here)

bipartisan group of 74 lawmakers issued a letter Friday demanding that the Pentagon’s health plan cover a treatment for brain injured soldiers

According to Daniel Zweirdling and Christian Miller of NPR a bipartisan group of 74 lawmakers issued a letter Friday demanding that the Pentagon’s health plan cover a treatment for brain injured soldiers known as cognitive rehabilitation therapy.

.Rep. Bill Pascrell, (D-NJ), and Rep. Todd Platts (R-PA), the leaders of the Congressional Brain Injury Task Force, cited an investigation by ProPublica and NPR, which found that Tricare, an insurance-style plan covering soldiers and many veterans, had relied on a controversial study to avoid paying for the intensive and often expensive treatment.

“We hope that you share our concern that service members returning from the battlefield cannot wait to receive treatment for their injuries,” the letter said. “It is our hope that there exists some contingency plan to provide cognitive rehabilitation for service members who are returning home today.”

Official Pentagon figures show that nearly 200,000 troops have suffered traumatic brain injuries since 2001, though our investigation found evidence suggesting the true toll is far higher. Although the majority of soldiers recover from the most common form of head trauma, known as mild traumatic brain injury or concussion, some suffer lifelong mental difficulties, with trouble remembering words or following directions.

Pascrell and Platts first wrote a letter demanding that Tricare provide cognitive rehabilitation more than two years ago. In response, Tricare contracted a study which found insufficient evidence to justify providing the treatment.

In confidential reviews obtained by ProPublica and NPR, however, leading brain specialists blasted the study for ignoring evidence that the therapy helped, calling it “deeply flawed.” Top Pentagon health officials have also expressed concern about the high cost of the treatment, our reporting found.

Cognitative influences can be caused by traumatic brain injuries to civilians as well. These injuries are serious and if they are the result of the negligence of another, for example in car accident cases, medical malpractice cases and the like you need experienced personal injury counsel to ensure your rights are protected.

Call us for a free, no obligation consultation.  800 486 6814

Article on Medical Malpractice Suit Focuses on Tragedy But Neglects The Law

There was an interesing article in the LA Times on January 23, 2011 concerning a lawsuit against UCLA Hospital arising out of the tragic death of a young girl. The girl, Olivia Cull, 17, died while undergoing a procedure related to a faulty heart valve. Her problem was congenital. She had had similar procedures to the one she underwent on the date she was injured. She was a bright, kind young woman; by all accounts full of promise.

The article’s point was that it was too hard to sue for medical malpractice in California. The article noted here there is a cap on pain and suffering damages of $250,000 in the state which makes it hard to find lawyers willing to take the cases. 

All true. I agree that it is too hard to bring medical malpractice cases in California. I agree that the cap of pain and suffering damages of $250,000 is too low (the law was enacted in the 1970s when, presumably, $250,000 was more money than today). Want to read more about the medical malpractice cap? Click here.

But there is a big problem with the article. It never states what the health care providers did that was negligent or wrong. The basis of every med mal lawsuit (and every injury suit) is the breach of a duty of care. If there is no breach of a duty of care, one has no basis for a suit. Sometimes people die while in the hospital. This fact is horrible and tragic especially when it’s a young person. But the hospital doesn’t have to pay because the patient dies; the hospital has to pay when it or its agents such as nurses and doctors do something negligently that causes injury or death.

There is irony here. Many people’s emotional reaction to the untimely death of a child while in the care of a hospital is that the hospital is responsible, no matter what. Not true, because that is not justice. Because a hospital has money and treated a patient who suffered an injury or died, does not mean the hospital has breached its responsibilities. The plaintiff must show the standard of care of the hospital in treating the patient was below that which was the norm in the area.

And yet at least according to popular media many people believe that there are too many “frivilous” lawsuits and caps on pain and suffering and other rules that limit malpractice claims keep costs down, for everyone.  Really?  There is no evidence that malpractice caps weed out frivolous lawsuits. Juries and judges are not dumb. They don’t award big verdicts to frivolous lawsuits. A cap is much more likely to influence a legitimate case, a case where a large award is justified.

The media in the U.S. seems to be left leaning. With more journalists and pundits in favor of Democratic positions than in favor of Republican ones. But one area of journalism seems to be out of sync–the reporting on “tort reform.” Lawsuits and judgments are often the only way to bring the large companies and government entities to account for their misdeeds. It seems that the media is generally hostile to trial lawyers and lawsuits. This is a decidedly Republican position as it is the party who favors big business, champions tort reform and the minimization or exclusion of juries from the injury law system. 

In their paper entitled “Faulty Data and False Concusions the Myth of Skyrocketing Malpractice Verdicts” academics Lewis L. Laska, J.D., Ph.D. and Katherine Forrest, M.D., M.P.H.  report, “The premise that medical malpractice awards have been rising dramatically in the United States in recent years, driving up the cost of healthcare and forcing physicians out of practice, is not supported by relevant evidence.”

In light of the public relations campaign waged by big business against accident and malpractice cases, fighting for the rights of accident and malpractice victims is getting harder and harder. Victims need aggressive attorneys who can make sure the jury or judge sees the whole picture and accurately values the damages.

If you have been injured in a medical setting or an accident setting, contact the law offices of Galen Gentry for a free, no obligation consultation. Top rated, trial experienced, exceptionally good.

Telephone: 800 486-6814 or email galen@galengentry.com

California Passes Law for Expedited Jury Trials–It Will Never Work

On January 1, 2011 the Expedited Jury Trials Act goes into effect. It is an attempt by the legislature to shorten the trial process in cases with modest values and it’s really directed at limited jurisdiction personal injury cases that make up a large percentage of civil trials. The act establishes procedures for conducting expedited jury trials, including provisions for a jury of 8 or fewer members, with no alternates, a limit of 3 peremptory challenges for each side, and a limit of 3 hours for each side to present its case.

The act also provides that all parties waive all rights to appeal and the right to move for a directed verdict or to make any post-trial motions, except as provided. The act provides that the verdict in an expedited jury trial is binding, subject to any written high/low agreement.

It sounds great. Our court system is woefully underfunded.  The average case takes more than a year from the date the complaint is filed to the date of trial.  The delay is a real problem for consumers and a benefit to corporate defendants, particularly insurance companies.  (Want to know why the over burdened court system is bad for consumers? Read this article).

Unfortunately, the impact of Expedited Jury Trial Act will be negligible because insurance companies won’t agree to Expedited Jury Trials in most cases.  The Act is aimed at limited jurisdiction cases.  The reason the act won’t have the desired effect is that  insurance companies love limited jurisdiction cases, and don’t want to change a thing. In limited jurisdiction cases the jury cannot award any more than $25,000 (the limit of its jurisdiction).   Even a modest insurance policy exceeds the most that can be lost by the insurance companies.

Traditionally, limited jurisdiction cases were straight forward and fast. But over the past decade insurance companies have adopted a hardline position–they will pay tens of thousands of dollars to defend a case rather than settle it. Even meritorious cases are dragged out in an attempt to wear down the victim and make the litigation so expensive that a jury verdict can be a pryhhic victory.  In other words the costs to win the trial gobble up the verdict amount. 

Insurance companies regularly use accident reconstructionists and “biomechanical experts”  in limited jurisdiction cases to attempt to prove the injury could not have been caused by the car wreck or the fall or whatever the facts are.  The industry uses the same “experts” over and over and so they obtain bargain rates. 

Experts can be persuasive (even if their facts are wrong and their opinions are based on junk science); therefore, Plaintiff’s lawyers believe they must employ their own experts.  This means more costs and less recovery for you, the victim.

In a recent limited jurisdiction case undertaken by our firm our expert witness (accident reconstructionist) demanded $7,000.00 to testify. Wow.  The treating physician charged $1000 an hour to testify. Oof!  With medical bills of $5700 even if the jury awarded the plaintiff the jurisdictional maximum of $25,000 the amount the plaintiff would ultimately receive made the case one in which even a jury verdict wasn’t much of a victory.

What can be done to protect you, the consumer?  Instead, of expedited trials limited jurisdiction cases should preclude accident reconstructionists and similar experts.  This would decrease the cost and complexity of the cases and result in the desired judicial economy–trials would be shorter and less expensive.  But that simple solution will never happen because the insurance companies are too politically powerful for such a law to be passed.

Okay, so the insurance companies have serious political power, what else can be done?  Well, the only other thing to do is to bravely try the case without an accident reconstructionist. 

But, to do that you need a skilled attorney who can expose the junk science that accident reconstructionists use in modest speed cases.  Also, think outside the box.  Instead of using an accident reconstructionist the plaintiff’s counsel can employ a driving teacher to opine about the rules of the road and the  thousands of serious injuries which occur every year in relatively low speed impacts. 

The game is fixed. Insurance companies have the upper hand. But don’t lose hope.  If you have suffered a modest injury in a low speed impact make sure your lawyer has a plan to win and is willing to take the case to trial.  Ask him or her about the expenses. Ask him about experts.  If he can’t explain what a “Delta V” is you’re talking to the wrong lawyer.

Call 800 486 6814 for a free consultation

Blood Test For Brain Injury?

As you know from previous posts the U.S. Army and the N.F.L. have been in the news for their respective advances in traumatic brain injury diagnosis, treatment and prevention.  A new article in Discover talks about a potential blood test for brain injuries.  The test has not been perfected, but if it is it would be signifcant for legal community.  Often a brain injury diagnosis is based upon subjective criteria and at trial it is attacked by defense attorneys as being phony. The defense attorneys usually claim the plaintiff is simply a malingerer.

A blood test that is acknowledged as accurate would be of great value in the context of personal injury trials and litigation.

Five Reasons Why The Jury Hates Your Lawyer

Most lawyers, even experienced ones, are terrible trial lawyers.  Terrible.  With a capital T that rhymes with LOSE.  Here is list of common problems.

1. Using big words–any legal terminology, scientific mumbo-jumbo, or multi-syllabic jargon–is never a good idea. One can and should use clear, concise language to express even complicated ideas.

2.  Making the same point over and over.  Jurors hate to have their time wasted.  Make your point.  Move on.

3. Talking down to the jury. Collectively the jury is smart. The attorney’s questions should be clear and direct but not simplistic.

4. Talking without using visual aids.  Take a cue from television news.  The newscasters talk for about 30 seconds and then there is a change in the screen shot or the introduction of a graphic or a video.  If your lawyer stands at podium tediously yammering, you are making enemies of the jury.  Utilize diagrams, photos, computer compilations so that you convey your message orally and visually.

5. Objections–Lots of Objections. Your lawyer may view constant objections as proof he knows the laws of evidence but the jury views the objections as proof you, the client, want the truth kept from them. This is suicide. Your lawyer must be seen by the jury as the truth teller. If the jury doesn’t trust him or her, they won’t trust you.  The lawyer should address important evidentiary issues without the jury present. This is usually done with motions in limine before the start of trial.

Check Out Our Article On The Impact of Insurance on Injury Compensation

As the law stands, victims in California personal injury lawsuits who have health insurance may receive less compensation than victims who lack insurance. Read the article here.

Accident Claimants Should Make Sure Their Attorneys Reimburse Medicare If Necessary

A Medicare beneficiary who is treated for injuries and then sues to collect compensation is required by Federal law to notify Medicare of the claim. When the claim is settled the plaintiff must reimburse any payments made by Medicare for treatment of the injuries involved in the claim. Make sure your attorney complies with the law, because you may be liable to the government years after your claim is resolved if he or she fails to give to Medicare what’s due Medicare.

How to Resolve a Medicare Lien when Settling a Personal Injury Claim

First Step: Report Claim to the Coordination of Benefits Contractor for the Centers for Medicare and Medicaid Services

Your attorney must report the claim to the Coordination of Benefits Contractor for the Centers for Medicare and Medicaid Services (CMS). Contact information for the COB Contractor and the information to be provided to the contractor may be obtained at the CMS website, www.cms.hhs.gov.

Step Two: Request A Conditional Payment Letter

Your attorney should make a written request to the Medicare SecondaryPayer Recovery Contractor for CMS for a “conditional payment letter” showing any payments made by Medicare for the injury. Provide the Medicare Secondary Payer Recovery Contractor with the claimant’s name, address, date of birth, Medicare number, as well as the date and nature of injury.

Step Three: Audit The Conditional Payment Listing

Your lawyer should review the conditional payment letter sent by the Medicare Secondary Payer Recovery Contractor since it sometimes will list Medicare payments for medical treatment unrelated to the claim. Any conditional payments for unrelated treatment should be challenged, with documents evidencing the nature and extent of the claim injury provided.

Step Four: Provide Final Settlement Documents

Once your claim is settled, your attorney should provide the Medicare Secondary Payer Recovery Contractor with a copy of the settlement document and information on attorney fees and costs paid by the claimant (most injury cases are contingency cases). But Medicare is required to deduct a proportionate share of the fees and costs your attorney deducts from the award or settlement you receive. The Medicare Secondary Payer Recovery Contractor will prepare a final demand for payment letter showing the amount it claims Medicare is entitled to recover from the settlement.

Want more information? Go to www.cms.hhs.gov

Happy Fourth of July

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it, and to institute new government.”

The second paragraph of the Declaration of Independence is, in my opinion, one of the most eloquent statements regarding human rights ever written.  Happy Fouth of July!!