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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.
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.
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.
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
“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!!
Traumatic brain injuries have been called the “signature wound” of the wars in Iraq and Afghanistan. While improvements in armor and battlefield medicine mean more soldiers are surviving bomb blasts that would have killed them in previous wars, the explosions are leaving some of them with permanent wounds. Mild traumatic brain injuries are difficult to detect as they leave behind no obvious signs of trauma.
Propublica has printed a great graphic depicting combat brain trauma. An explosion generates a blast wave traveling faster than sound and creating a surge of high pressure immediately followed by a vacuum. Studies show that the blast wave shoots through armor and soldiers’ skulls and brains, even if it doesn’t draw blood.
Although the military has done quite a bit to recognize and treat TBI, a recent article by NPR and Propublica shows that much remains to be done.
Inexperienced attorneys are often lured by serious injuries into taking cases with liability problems. Clients sometimes believe that liability in accident cases is predicated on the extent of the injuries. In a recent Florida case the plaintiff got drunk in a bar and then injured himself climbing on an artificial rock climbing wall. Stephen Barrett, then 35, was at a bar in Waterford Lakes Town Center, an outdoor shopping mall. He was climbing down the 25-foot rock wall when his foot got caught on one of the rocks. He did a cartwheel in the air and landed on the metal trailer attached to the wall. His leg was impaled on the outrigger of the trailer. He now has a permanent seroma and he fractured his wrist.
The siren song of serious and obvious injuries caused the plaintiff’s lawyer to take a case he couldn’t win. The defendant’s toxicologist stated that Barrett had a blood alcohol level of twice the legal limit. Barrett argued that the defendant, Simon Property Group, specifically put the wall in front of the bar. Barrett stated that it was foreseeable that a rock wall located in front of a sports bar would attract climbers who had been drinking. This was a howler of a lawyer’s argument that didn’t impress the jury. The elements of a successful personal injury claim are 1. duty of care, 2. breach of the duty and 3. damages that are legally caused by the breach. The jury didn’t believe the property owner breached any duty to Barrett. They felt, not unreasonably, that Barrett was responsible for his injuries. Juries don’t abandon their common sense just because a plaintiff has significant injuries. They will expect plaintiff’s counsel to provide a reasonable explanation as to why the defendant is at fault.
The deposition of the plaintiff, the accident victim, is an important event in a personal injury suit. Don’t wing it. Be prepared. Here are a few tips gleaned from Leonard Bucklin’s Trial Notebook.
- Slow down — listen to the question. Pay full attention to the question.
- Answer the actual question, and stop.
- Talk with confidence.
- Speak to the camera, not to the attorney.
- Keep it short.
Most depositions which take place today are videotaped. It is important not to engage in distracting actions during the deposition. Look at the camera when answering questions. Remember that the camera most of the time will show only your head and shoulders and the wall immediately behind you. The camera will not usually show the attorneys asking the questions or anything else except your head. Think of a TV interview in which for an hour all you saw on the screen is a “talking head.” This is a “one-camera viewpoint.” This one-camera viewpoint can be boring for people watching the video — unless you are looking at the camera just as though you were talking to a friend.
The one-camera viewpoint means that the place you look most of the time when you are talking, answering the question, is to the camera. Do not look at the attorney asking the question, because he/she will not even be in the picture.
You can look at the attorney asking a question, to pay good attention to what the actual question is. But when you answer, most of the time turn your head back and look at the camera.
Think if you saw a TV interview, or a newscast, in which the person was not talking to the camera but rather talking to someone off to the side of the camera. Looking at the side of a person’s head in a one-camera format for an hour is very boring. Look at the camera, because it is the camera to which you are speaking.
Sit up straight. Remember what you see on TV newscasts. The newscasters know how to communicate information. You do not see the news being delivered by someone slouching in a chair or with his head on his hand. Do like the newscasters do — sit up straight and keep your hands away from your face.
Look at the camera when you are talking. Do not look down at papers and answer a question at the same time. If you are a “talking head” in the camera shot, people cannot see that you are looking down at papers on the table. In the video you appear to be just looking down without reason. People will wonder if you are embarrassed or “shifty.” Besides, the jury will lose eye contact with you, and it will be harder for them to pay attention to what you are saying. So look the camera in the eye when answering the question, just as though it was a neighbor of yours and you are explaining the facts to them.
Never look at papers if an attorney is asking you a question. Listen to the attorney. You cannot pay full attention to the question if you are looking at papers that are on the table in front of you.
Look at the attorney when you are listening. Turn your head and eyes naturally to look at the attorney when the attorney asks you a question. You need to do that to really understand the question. Give the jury the respect of looking interested in what is going on, and respectfully listening to the person asking the question. Then turn to look at the camera to answer the question. You do not see newscasters looking down at papers and talking. You see them looking at the person talking and then looking back to the camera when they are talking.
As a condition to providing medical treatment or insurance most California healthcare providers and insurance companies require people to agree to arbitrate any disputes regarding malpractice. Arbitration is a system of alternative dispute resolution wherein the parties to a dispute refer it to one or more persons, called the arbitrators, by whose decision they agree to be bound. Arbitration is a for profit industry. Parties must pay the arbitrators to judge their matter. Most arbitrators are retired judges or experienced attorneys.
Proponents argue that arbitration is a faster and more efficient than trials. Opponents argue that juries are more inclined to give larger awards than arbitrators (or judges) and that arbitration plus caps on pain and suffering damages are unfair to malpractice claimants.
Last summer a California court allowed a litigant to proceed with a lawsuit despite an arbitration agreement. The court ruled that the patient did not receive the time allotted by California law to reflect on the arbitration agreement. In the case of Rodriguez v. Witzling, the court stated that because the patient did not have 30 days to consider the arbitration agreement and change her mind, her agreement was void. The case is unusual because the reason the patient did not have the full time period is that she died before it expired. Her family was suing for wrongful death.
Read the case at http://www.metnews.com/sos.cgi?0809%2FC057565
Many People Are Unaware That California Has A Statutory Cap On Both The Amount Of Attorneys’ Fees and The Amount Which A Victim May Recover For Pain and Suffering in Medical Malpractice Cases.
Since the 1970s California has limited the amount of attorneys fees in medical malpractice cases to 40 percent of the first $50,000, 33 1/3 percent of the next $50,000, 25 percent of the next $500,000, and 15 percent of any amount that exceeds $600,000. Cal. Bus. & Prof. Code § 6146 (West 1990). This limit applies regardless of whether the recovery is by settlement, arbitration, or judgment. If the contingent fee arrangement is based on an award of periodic payments, the court is to place a total value on the payments based upon the projected life expectancy of the claimant, and then calculate the contingent fee percentages.
More importantly, California law places a cap on non-economic damages for medical malpractice cases. Non-economic damages, defined as compensation for pain, suffering, inconvenience, physical impairment, disfigurement, and other non-pecuniary injury, are limited to $250,000. The cap applies whether the case is for injury or death.
In August 2009 the California Supreme Court announced it would refuse to hear an appeal that attempted to overturn the state’s 34-year old medical malpractice damages cap. California was the first state to enact a damage cap on medical malpractice lawsuits. Thirty other states have similar laws. Critics of the California damage cap say it violates injury victims’ rights, pointing out that the cap has not changed since 1975 and $250,000 does not have the same buying power it did in the seventies. There are efforts underway in Colorado, Tennessee and Nevada to repeal or increase medical malpractice limits.
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