THE PEOPLE’S LAW SCHOOL What everyone needs to know… CIVIL LAWSUITS Tuesday, November 22, 2005 Mae A. D’Agostino, Esq. Henry G. Miller, Esq. D’Agostino, Krackeler, Clark, Gagliardi & Miller, P.C. Baynes & Maguire, P.C. White Plains, New York Menands, New York Presented by the New York State Bar Association TORTS by MAE A. D’AGOSTINO, ESQ. D’Agostino, Krackeler, Baynes & Maguire, P.C. The Sage Mansion 16 Sage Estate Menands, New York 12204 518-434-9807 2. Medical malpractice 2a. Definition — failure to act as a reasonably prudent physician or other health care professional. 2b. Expert proof — unlike ordinary negligence claims, medical malpractice cases usually require healthcare professionals to tell about the acceptable standards of care. 2c. Proximate cause — in medical malpractice cases, proximate cause is very much an issue. For example, did the patient die because of an underlying disease or because a physician failed to act reasonably? 2d. Several examples of medical malpractice will be discussed. 3. Intentional Tort — behavior which is intended to cause harm or injury. 3a. Examples: -assault -battery -workplace harassment 3b. Unlike negligence cases, oftentimes there may be no insurance coverage for these intentional acts. 4. The role of the insurance company in tort law. 5. Where to find attorneys. 6. An explanation of the civil justice process from complaint, discovery, trial and appeal. 7. Settlement, how and why? 8. How do jurors place monetary amounts on certain injuries? The Sage Mansion • 16 Sage Estate • Menands, New York 12204 • (518) 434-9807 • Fax (518) 434-9826 • Email: MAD@dlrhmlaw.com www.dkbmlaw.com THE TRIAL OF PLAINTIFF’S CASE by HENRY G. MILLER, ESQ. Clark, Gagliardi & Miller P.C. The Inns of Court 99 Court Street White Plains, New York 10601-4265 (914) 946-8900 THE TRIAL OF A PLAINTIFF’S CASE By Henry G. Miller It has been fashionable in some quarters to disdain the art of trying plaintiff’s personal injury cases. Yet, the skill needed by the plaintiff’s advocate and the demands made upon that advocate may equal any challenge found in the practice of law. The young trial lawyer with pencil sharpened comes to seminars in search of the rules of how to try a plaintiff’s case. It is a startling disappointment to discover there are no rules. There are no magical formulas. There is no one “right” way to do anything in a trial. There are guides, but they cannot replace intelligence and imagination. Thousands of facts, formless in themselves, constitute the “case”; it is an ocean of details. The informing principle which gives the case shape is nothing other than the mind of the advocate. Contrary to some mythology, the best advocacy is honorable. Facts need not be invented; imagination need only see the possibilities implicit in the truth. A drunken man is killed by falling in front of a train. One lawyer, betraying incompetent panic, tries to deny the intoxication. The genuine advocate accepts the truth, but argues the train had the last clear chance to save the victim; indeed, the drunken man robbed of all ability to save himself was the one person most in need of the trainman’s careful observation. It has been said that he who selects the issues, wins the case. Don’t dance to the other fellow’s tune. Defendants like to create many issues. Each issue is an obstacle for plaintiff to hurdle. The defendant-contractor violates the law by failing to barricade the floor opening through which the plaintiff-workman falls. A fellow- worker of plaintiff left some tools over which plaintiff tripped, precipitating him into the unbarricaded opening. Defendant’s counsel seeks to make the fellow-worker’s thoughtlessness the pivotal issue. Adroit plaintiff’s counsel will not take that bait. What difference does it make who left what laying around? Plaintiff should embrace the fact that tools were left there. On a construction site there are all kinds of tools and debris laying around over which workers may trip; that’s why openings must be barricaded. Plaintiff goes as close to defendant’s case as he can. The thoughtful advocate does not wildly charge at each thrust; he selects issues. Without a theme, there is nothing around which to organize the trial. Sometimes, too much know1edge can be a dangerous thing. The lawyer may know everything about defendant’s product. He alleges defendant manufactured a plastic floor-covering which, during a fire, emitted toxic smoke killing his client’s husband. Counsel has mastered the intricacies of the chemical properties of the product. All too often counsel attacks with all his knowledge but never takes the extra effort to think through to a clear theme. We cannot leave the jury in doubt. The theme may be simple and all the better if it is. They didn’t warn. The maker of the —2– floor covering failed in its duty to consumers to advise them of the danger of the product when it burns. Failure to warn is the theme which must be sounded at every stage. By the time summation comes around, the jury can tell counsel what he’s going to say. Of course, in jury selection, plaintiff’s lawyer will sound the theme, but intelligence alone can decide how loudly. There is no rote way of doing it. The lawyer, particularly a plaintiff’s lawyer, knows that the jurors view him with distrust and cynicism. Therefore, the lawyer must first establish his credibility. He must say nothing which arouses doubt about his total integrity. The lawyer is always the chief witness for his cause saying more than any witness. Say no more than needed. The defendant-driver had a few drinks, crossed the double-line into plaintiff’s lane of travel, causing plaintiff to suffer multiple crushing injuries, fractures and the loss of an eye. Plaintiff’s attorney might simply suggest to the jury during selection that this is no time to go into the facts. He might simply allege that plaintiff contends that defendant negligently caused him to suffer serious injuries. Defendant’s attorney then faces the dilemma of either one admitting injuries are serious and there’s some drink in the case (this is awkward for him to do and if he says so the jury knows it’s true) or two, saying nothing (plaintiff’s attorney’s opening will then boom like thunder). In any event, by —3– understatement the credibility of plaintiff’s counsel is very high indeed. That’s one approach to jury selection by plaintiff’s counsel in that case. Plaintiff, in opening, will want to start to persuade but must be wary of promising what may not be deliverable. He usually won’t name witnesses; they may change their mind. Once again, plaintiff must select the facts to make his point. Plaintiff should anticipate the attack of defendant who opens last. Plaintiff doesn’t want to hear defense-counsel say, “What they didn’t tell you . . .” Plaintiff’s counsel will open by advising the jury that, “Tom always had a bad back. Ten years ago he fell at work and lost six months. But he recovered. He worked regularly for 9 and a half years until the day defendant’s elevator fell three floors. His back, maybe not as strong as other people’s, could not survive that crash.” Plaintiff doesn’t wait for defendant to announce the prior accident in tones of indignation as if it were a murder-one conviction. The order in which witnesses are called receives too little attention. All lawyers are buffeted by the unpredictabilities of scheduling and the impatience of Judges with busy calendars. But, within those exigencies, counsel must present his case with the care of a stage director. Where liability is disputed, it usually is folly to put the plaintiff on first. The jury will resent talk of injuries before they believe plaintiff should recover. Also, a jury views the —4- first witness more critically than any other; the television lawyer has taught them every witness is a liar. Better to first prove that the landlord received actual complaints about the broken step which was left unrepaired for three months. The jury will now be understanding and waiting for the “victim’s” testimony. If a necessary witness is weak, you may want to keep it short at the end of the day after lunch when all want to go home including your adversary. Maybe you will call the president of the defendant corporation first to prove that the label of warning on the product was not there. If he admits it, all doubt is removed. It is an immense advantage to go first and select the first witnesses. Suppose plaintiff claims there was a delay in the administration of oxygen which is documented in the hospital chart. Defendant claims its own hospital chart is in error. Plaintiff calls witness after witness, each of whom supports the version in the chart. By the time the defense goes, it may be too late. The defense may never catch up. The conscientious juror will try to heed the instruction of keeping an open mind, but that juror is only human. At some point, even an open mind gets set. When should we use demonstrative evidence? It is tempting to glibly respond: Only when it helps. Too often lawyers use devices which are overproduced. No juror enjoys being seduced by gimmickry. Yet, properly used, a visual exhibit can be the most effective way of –5– riveting the jury’s attention on the issue you select. In the example just given, a blow-up of the page in the hospital chart documenting the delay would serve that purpose. During the weeks of trial, the jury would stare at little else. On direct examination, plaintiff constructs his case. During preparation, counsel has not only forewarned his witnesses of the cruelties of cross, but has learned how best to make his point. He has learned the questions that bring forth the desired responses. Not every detail is needed. Some novelists preferring photographic realism record all details and we are bored. Others find one salient fact and render a scene unforgettable. We need not ask a paraplegic everything. When she tells the jury she cannot go to the bathroom by herself she has said much. What witness should be called? Perhaps there is little choice. Usually, however, the selection of witnesses is one more decision in a labor of never—ending decisions. Plaintiff, a carpenter in his 30’s, will never work again. Should plaintiff’s counsel call an economist? By projecting the inflation of the future, the economist can establish staggering lost earnings. This permits plaintiff’s counsel to suggest large figures to the jury at a point earlier in the trial than the traditional summation. On the other hand, use of an economist gives defendant’s counsel not only an opportunity to ridicule the large projection, but to inject the notion of discount for present value. “One Hundred Thousand Dollars today, ladies and -6- gentleman, means ...,” etc., etc. Sometimes the best witness is the lay witness, such as a co-worker, a relative, a friend. “I knew Tom before and now after the accident, he just sits in his room ...” etc., etc. Sometimes that which is done deftly is most effective. How does an attorney prepare for cross-examination? There are screen directors who come to films with a rigid script, and others depend on the muse to strike. In law, some come to the task of cross-examination with massive notes and rigidly organized plans. Others prefer the inspiration of the moment. The best approach may be in the middle. One should know in advance the goal of cross- examining each particular witness. Documents and depositions are of course appropriately marked and ready. One knows the areas and sometimes a question or two to be asked. But no lawyer should ever be wedded to an outline. Trial lawyers deal in concepts, not notes. And, like a good interviewer, counsel must, above all, listen. The next question may be implicit in the answer. Certainly, when defendant’s doctor takes the stand, counsel is prepared. He knows he will cover the collateral issues: one, only saw the patient once, two, not a treating doctor, three, testifies and examines for defendants frequently, four, how much are you to be paid. On the merits, counsel intends to attack the doctor’s position that the patient’s depression is reversible with one, certain authoritative texts, two, an article by the witness somewhat at variance (Probably, it never happens, but it’s every trial —7— lawyer’s dream), three, report by the witness somewhat inconsistent, and four, the facts of plaintiff’s life which suggests after four years his condition is permanent and not feigned. All that has been prepared. What was not expected was the concession on the stand by the doctor that after a few years it becomes more difficult to reverse depression. Now here is an unexpected opportunity for the cross-examiner to enjoy at leisure and at length. The muse often rewards the hard-worker who prepares. Is summation the ultimate art or the most over—rated part of the trial? Maybe we’11 never know, but does it really matter? The lawyer does not know when any juror decides. He therefore must do his best at each stage. All lawyers in closing argument have to organize their material in the most persuasive form, but plaintiff’s personal injury lawyer has one further function. He must translate injury into money. Here, the skill of the advocate seems to make a noted difference. With the same basic facts different lawyers obtain different results. Jurors differ too but what is it that separates the lawyers? I believe it is sensitivity. It is the capacity to understand what a fellow human being has gone through. It is the ability to see that the factory worker who will work no more may miss the Monday morning quarterbacking with the other guys more than anything else. It is the ability to see that even in a minor injury of six months duration the victim suffered the fear that the injury may not -8- have been minor and limited to six months. Within this context, the quest for a money verdict is not crass. Plaintiff did not seek the lawsuit or the injury; they were imposed by defendant’s neglect. Plaintiff comes not as a beggar asking for sympathy, but as one entitled by law to collect a debt. Plaintiff does not seek the vengeance of an eye for an eye, but uses the civilized forum of law to right a wrong. Yes, the amount sought is large by everyday measure, but consider if the damage were to a Rembrandt or to a race horse or to a cargo of expensive machinery. You would not flinch at such figures, but here we speak of a man whose life is . . ., etc., etc., etc. Certainly, in addition to each advocate’s individual perception, there are set routines. But ultimately the finest presentation may be the simplest statement shorn of all artifice. The parable of the Good Samaritan is simplicity itself, but it has endured two thousand years. When the advocate is hidden, little suspicion is aroused. The lawyer most to be feared is the one who forgets himself and imbued with his cause only thinks of his client. “John Smith can never walk again. He can never walk again because his spinal cord was cut in the plane crash. The plane company had been told many times before the crash that the cargo door could blow off and cause a crash. The plane company made no change before the crash. That’s why John Smith can never walk again.” That simple statement —9— might be for many jurors more persuasive than an ornate, rhetorical argument made even by highly distinguished counsel.1 What a trial lawyer then seeks most is the wisdom to select well. To select wisely; the issues, the witnesses, the facts, the questions out of the infinite wilderness of possibility, is the chore common to all advocates. It matters not what kind of case. The job is the same. Intending no presumption, may I suggest that the precepts mentioned in this article apply to all trial work. The examples alone refer to personal injury trials and are interchangeable with examples from any other kind of litigation. Of course, the plaintiff’s lawyer not only shares the aspiration of his client, but depends upon success for the payment of his services. Nowhere in the law is the union of client and counsel as intensely fused. And yet, after having suffered through the endless decisions of trial strategy, it will sometimes happen that the verdict will be for the defendant. With this jury and this opponent, in this Court, these facts would not yield the desired verdict. Plaintiff’s counsel’s first concern will be for his client. Plaintiff’s counsel, like all trial lawyers, knows he needs the courage to risk defeat and the humility to accept his inadequacy. The challenge facing plaintiff’s personal injury trial lawyer differs in no way from the challenge confronting all advocates. (1) Maybe you can even persuade your opponent and impair his will to resist. Now, that’s advocacy! ABOUT THE PRESENTERS MAE A. D’AGOSTINO Mae has practiced law since graduating from Syracuse University School of Law in 1980. She is also a graduate and member of the Associate Board of Trustees of Siena College (1977). Mae has been recognized by her peers locally and nationally as a premiere trial attorney. She has been repeatedly recognized in the publication “Best Lawyers in America.” In 1992, Mae was the recipient of the “Young Lawyer’s Award” for Excellence in the Practice of Law, awarded by the New York State Bar Insurance Negligence and Compensation Section. Mae is the President-Elect of the Albany County Bar Association, Treasurer of the Trial Lawyers of the New York State Bar Association and an adjunct professor at Albany Law School. She is a member of the Order of Barristers and a recipient of the International Academy of Trial Lawyers Award. Mae is a frequent lecturer to Bar Association and professional associations on trial techniques and risk management. Mae regularly handles serious and complex litigation and products liability, medical and hospital malpractice, age and sexual harassment and discrimination, municipal law and general liability cases. HENRY G. MILLER Henry G. Miller, a graduate of St. John’s College (1952) and St. John’s Law School (1959), is Past President of both the Westchester County Bar Association and the New York State Bar Association. He is a Past Regent of the American College of Trial Lawyers, a Past Director of the International Academy of Trial Lawyers and a Fellow of both the American and New York Bar Foundations and a Past Director of the New York State Trial Lawyers Association. Henry is presently the senior member of the White Plains, New York law firm of Clark, Gagliardi & Miller, P.C. Henry’s trial work has usually been for plaintiffs in civil cases. Henry was appointed by Governor Mario Cuomo to chair the Commission on Local Government Ethics. He was appointed by Governor George Pataki to be a member of the Committee on Cameras in the Courtroom. He has frequently appeared on television and radio. He is the author of Settlements in the Art of Advocacy series as well as the editor of the New York Practice Guide on Negligence, both published by Matthew Bender and most recently, On Trial: Lessons from a Lifetime in the Courtroom, published by ALM Publishing. He has also written for and appeared in Off-Broadway (usually way-off) productions. His play, Lawyers, was performed at the Emelin Theater and the Westport Country Playhouse. His latest play, Alger - A Story, had a reading in New York with Fritz Weaver and Kevin Conway. Look for Henry in November, 2005 when he will perform his one-man show about Clarence Darrow at the White Plains Performing Arts Center.