Personal Injury Handbook

by Larry Booth and Roger Booth

22 free tips from Personal
Injury Handbook

1. “Never send a representation letter to anyone, ever.  Even in a small case, try if possible to always file suit so that you can deal from a position of strength. In a products liability or even a construction site accident, the last thing you ever want to do before you complete all possible investigation is alert the other side.”  1:70

2. “The purpose of the defense medical examination is to determine the plaintiff’s medical condition. It is not to take a second deposition. Therefore, inquiry into the facts of the accident should be extremely limited because the doctor or his staff will always confuse the facts, either accidentally or on purpose.”  2:41

3. “Avoid advertisers. We have found that the worst experts are the ones who advertise. They are promoters; they spread themselves too thin. They claim to be experts on everything under the sun and they usually are much more interested in the profits they can make on the case than the contribution they can make to a winning effort.”  1:60

4. “All witnesses are nervous at a deposition. Therefore do not put them at ease before getting to the tough questions by dragging them through relatively unimportant background details about the witness or the accident site.  Ask the tough questions immediately.  You can go through the other material later.”  2:11

5. “Leave the client in the hall. There is a growing custom to have the plaintiff sit in on the opening part of the mediation. This should be strongly resisted. The worst problem is that the client will take umbrage at the comments of the defense and his anger will create a huge problem to mediation, which depends heavily on cooperation. In addition, the client may not understand the plaintiff’s attorney candidly admitting weaknesses in the case or even weaknesses in the plaintiff’s salability to a jury.”   2:81

INVESTIGATION  

6. “Investigate the client’s medical records before the defense does.  Many plaintiff attorneys wait until the defense orders medical records by subpoena or signed authorization and then simply order a copy, usually after the plaintiff’s deposition and after interrogatories have been answered. Do not do this. This is flying blind. You may not crash immediately, but sooner or later the plane will hit a mountain. The plaintiff’s attorney must get all possible medical records involving the accident as soon as possible and before any discovery, preferably before suit is filed. After carefully examining the records and the client, he must order every conceivable record on the client’s medical past, prior injuries, etc., because that is exactly what the defense will do.  Carefully review medical records for any evidence of use of drugs and follow up with vigorous investigation.”  1:42

7. “Never, never give opposing counsel or an insurance adjuster a signed authorization for records.  These will be copied and modified and you will have no control over what the defense orders. Wait until discovery and only allow records to be secured by the defense by subpoena. If the plaintiff has given a written authorization to an insurance company (usually in an automobile accident case), these must be revoked and copies of any records secured with this authorization demanded.”  1:43

8. “It is vital to have the investigator re-interview witnesses before their deposition even if a signed statement has been previously secured. The witness must understand the one or two crucial facts he brings to the case and not get lost in trivial details. A good investigator can establish a rapport with the witness which will go a long way in keeping his testimony honest. The more repeated contacts the better.  We have sometimes had the investigator transport the witness to the deposition to reduce anxiety and allow for better preparation.”   1:45

EXPERTS

9. “There are true experts in every field who have a narrow focus to their work and are recognized by their peers as being the last word. Usually these experts are found in university settings. They may have never testified before, but are influenced by the fees they can command by going through this unfamiliar torture.  These are the ultimate experts. It is exciting to have an expert who has never testified before and be in a position to talk about the professional experts on the other side.”  1:60

10. “It is a lot more work to educate experts who have never testified on the fine points of testifying, how to avoid traps in questioning, etc., but it is worth it. Juries love them. These amateurs must understand that testifying is far different than an academic discussion. There are few certainties in science, but in court all experts must be positive and certain. You can bet that the defense experts will not waiver. It is a tough sell to convince an amateur expert than he can prove something is true merely by saying it. His best opinion is for courtroom purposes absolute proof.”  1:60

11. “Talk to lawyers who have used the expert and find out if his opinions get weaker after a long period of billing on the case.”

12. “Don’t be afraid to promote the themes that you know as a trial lawyer will help win the case. Experts are not trial lawyers and often do not understand that there is a vast difference between pure science and ways of presenting a case that appeal to a jury. This is not a license to distort the expert’s views, but it is important to direct him to approaches that will be simple and the jury will believe.”  1:60

DISCOVERY

13. “The plaintiff knows much more about the facts than the defense when the case gets started.  This is a tremendous strategic advantage.  Keep it as long as possible.  Do not fall into the routine and lazy trap of first sending out boilerplate, endless, and often inapplicable interrogatories, and responding to a similar set after which the defense will take the plaintiff’s deposition. This is totally backwards and gives up the advantage. You can keep this advantage by quickly noticing the depositions of the known witnesses, employees of defendant corporations, and persons most knowledgeable on limited subjects.”  2:10

14. “It is vital for the plaintiff’s attorney to do wide spread investigation of his own client as early as possible, including obtaining medical and even employment records. Employment records are often overlooked. They will verify steady employment before the injury, reveal any prior drug use, and most importantly suggest unrevealed prior injuries if there are large gaps in employment. These all need to be carefully reviewed before responding to any written discovery and especially before the plaintiff’s deposition. Written responses to discovery can be amended. This may raise some flags, but changing answers in a deposition may lead to a potential disaster.”  2:20

15. “Every interrogatory answer that a plaintiff provides must be clear, truthful and complete.  Obviously, the most critical answers apply to prior injuries, the facts of this accident, the injuries in this accident, and loss of earnings. Most of the time objections to questions are a waste of time and invite law and motion litigation which defense attorneys love since they work by the hour and plaintiff attorneys should hate because they don’t.  A far better substitute for objections is answers that allow wiggle room.  The answers should be crystal clear that the various theories are incomplete and subject to further discovery and expert analysis.  Even prior injuries should allow for the caveat that medical records that may exist and may have been forgotten by the plaintiff are being reviewed for any similar problems with the same part of the body. Loss of earnings totals should always be incomplete and subject to calculations by experts.”  2:21  

16. “Never produce income tax returns. They are clearly privileged under both federal and most state laws. W-2s are generally produced, but even here strategically it might be better to withhold these documents.”  2:23

PLAINTIFF’S DEPOSITION

17. “Take remedial actions for bad deposition answers immediately. Most witnesses are told at the beginning of a deposition that they have the right to change their answers after they review the transcript, but we all know that is a recipe for disaster. Occasionally, a nervous plaintiff will give an answer that causes great consternation to his lawyer, who feels like crawling under the table since they probably rehearsed that same issue 20 times. It is far better to interrupt, object, send up a flare, or at least clear up the matter with questions at the deposition than to wait and do it on the transcript.”  2:30

18. “Prepare client carefully for nuances regarding liability. Usually serious mistakes by plaintiffs in depositions pertain to the subtle nuances of liability. In a slip and fall case, the plaintiff might be asked “did you see the broken tile before you slipped on it?” A simple “No” suggests he wasn’t looking. A simple “Yes” suggests he was negligent for not avoiding a known danger. A far better answer, if truthful, is “I saw the tile but I did not recognize that part of it was broken because as I walked down the hall I was not just staring down.” This kind of problem can be cleared up with subsequent questions, but, of course, it is far better if the plaintiff makes the truth clear the first time.”  2:30

19. “Concede prior injuries. The kind of answer that can never be corrected has to do with prior accidents or prior injuries. No jury will ever believe that the plaintiff forgot that accident 20 years ago where he complained of neck pain and collected $500, nor will they believe the plaintiff when he says that the problem he forgot to mention went away in three months. This information can sometimes only be known to the plaintiff’s attorney by his own independent investigation of the plaintiff’s medical records in advance. Conceding prior injuries will open up a clear argument for the eager defense doctor that the underlying problem would have caused the disability in the future without any subsequent accident. Nonetheless, this is much better than trashing the plaintiff’s credibility. The plaintiff’s honesty and believability is the single most important ingredient to victory. If the jury likes the plaintiff and thinks he is deserving, they will overlook almost any defect in the case. If they think he is a liar, it will be a long day. ”  2:30 

DEFENSE MEDICAL EXAMS

20. “Delay as much as possible.  It is surprising how many attorneys allow a client to be examined by a doctor hired by the insurance company even before suit is filed. The doctor will find that there is nothing wrong with the plaintiff, attribute his complaints to pre-existing problems, or claim he is exaggerating his symptoms. Letting the defense’s medical examiner get at the plaintiff early is a mistake. The examination can usually be delayed until after suit is filed and it should be.”  2:40

21. “Never send a plaintiff to the defense medical examination alone. He should be accompanied by an attorney and, if allowed, a court reporter, both of the appropriate sex.  The court reporter should time the examination. They are usually extremely short, which undermines the credibility of the defense doctor when opposing the long time treating doctors produced by the plaintiff.”  2:41

22. “The plaintiff should be prepared with a more or less rehearsed truthful version of the accident that the plaintiff can state clearly and concisely in a few sentences.”  2:41

Includes 140 forms, 60 checklists, 600 pages, full-text CD.

Updated annually.  ISBN 1-58012-129-2.  Book Price: $99

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Related Titles:

Deposing & Examining Doctors

Determining Economic Damages

Exposing Deceptive Defense Doctors

How Insurance Companies Settle Cases

Insurance Settlements

Maximizing Damages in Small Personal Injury Cases

Medical Evidence

Model Interrogatories

Personal Injury Trial Notebook

Proven Jury Arguments & Evidence

   Updated 05/17/12