DO YOU NEED THE PUNISHER OR MY COUSIN VINNY?

NeuwirthLaw For Lawyers

The Punisher seeks vengeance for the murder of his family. I am not the punisher. My clients however do want their vengeance. They want someone to be held accountable. Often, while I enjoy the punisher concept, the fumbling, humorous, cross-examination of Vinny in My Cousin Vinny is better at accomplishing the task at hand. What is the task? The task is making the Defendant look so silly in their testimony that even their own lawyer is shaking their head or making notes to have the case settled.

My general evaluation is that insurance companies do not put much stock in their lawyers or their insureds when they know the person is at fault. The big insurers’ practice is for their lawyers to prepare the defendant for a half hour before the deposition. I am happy to be on the other side of that, but to me it is inadequate preparation for a deposition. I spend 2 plus hours with my client days in advance of a deposition to understand what they are going to say and how they are going to say it and generally to put them at ease.

It is rare indeed that a defendant will admit that they caused a crash, failed to make their property safe etc. When a defendant does admit fault, it short circuits the deposition and almost allows it to end with that admission. I find it refreshing, but unexpected.

Preparing to cross-examine a defendant usually begins for me with assembling the photos, police reports, hospital records of my client, and any statements taken by the insurer. Even with a tiny bit of information, I will know what the weather was like, what the area was like, what a reasonable person concerned about others would have done etc. A lot of depositions are fact finding mixed with cross-examination. So, while it may not be significant during the deposition, stating that it was snowing or dry may have significance down the road. Or, the defendant saying that they don’t recall a lot of information, but only recall bad things for your client suggests that they have a selective memory and usually looks silly.

Often, photos tell a thousand words. Even if they are harmless looking, they provide a lot of facts about what happened, where the crash occurred, how bad the situation was etc. I finished two cases recently where my clients’ cars ended up in a field or nearly crashing into a restaurant. In both cases, the defendant had to admit that their actions had caused my clients’ cars to leave the roadway.

CROSS-EXAMINATION OF EXPERT WITNESSES:

NeuwirthLaw For Lawyers

Preparing to cross-examine a defense expert witness is part of every case that approaches trial. For most of the case, all that I have from the defense expert is a three-page letter relating the expert’s opinions and his curriculum vitae or resume. That is not much information to go on. A typical letter from a typical defense expert says that the expert reviewed the patient’s records, met with the patient, and concluded that there was no connection between the incident and the patient’s injury, and that the patient is fully healed or some variation on that theme.

Clients are always astounded that defense experts will offer such an opinion, but it is merely a money-making operation for the doctors. Often, the experts in auto cases make a lot of money reviewing hundreds of cases for insurers and have their own private practices, where they see patients. They assume that most cases will settle without the need for their testimony. But, the combination of overly busy experts with no real preparation makes the defense expert an easier target than one would expect.

Everyday personal injury cases are generally not as high stakes for the defense as other larger cases. So, for example, I will see a lower grade of expert in an auto case than I will see in a medical malpractice case. That is just the reality. The cases simply do not matter to the expert as much as they matter to me or my client. For my client, it’s a question of money to compensate for their injuries. For me, I usually have $10,000 or more on the line if I lose the case.

Like most lawyers, I have had good days with defense experts and bad ones. The best cross-examinations are when the expert’s report simply does not align with the facts. I find that a timeline is often the best offense against a defense expert. (Here is an example of a good cross of an overused expert). Good days are when the expert admits his opinion is wrong or was missing key information. Bad days are when the expert does well and I make no headway. Once I had a doctor tell me that he was not going to explain the shoulder anatomy to me. I thought that it looked arrogant, but the jury accepted what he was saying. You know that you have done a good job cross-examining an expert when the defense lawyer asks if they can refer cases to you in the future.

What are the keys to expert cross-examination? First, preparation goes without saying as that is just part of being a lawyer. Second, I like to have read 2 or 3 prior depositions that the expert has given, just to get a feel for their manner. I had one expert who when asked why he was giving opinions on surgery, but no longer practiced surgery always said, “well my wife is being treated for breast cancer.” He had said this over and over for years and nobody called him on it until I stopped him before he said it in my deposition. Third, collateral source information is key. Just collect it from old depositions. What is collateral source? It is basically information irrelevant to the case, but relevant to the bias of the expert. So, really, it involves how much money the doctor makes from testifying and how many depositions they give and how much of their practice it involves. Often, the specialties such as primary care, neurology, and other low paying doctoring practitioners will supplement their practice income with expert work and will say pretty much anything. The surgeons of the world make more money practicing medicine and are less subject to this cross, but are often more quick to snap when caught on cross. Nevertheless, if I am not doing great on cross, I will always end with asking the doctor if they have made a million dollars doing expert work. Most will agree that they have. Sometimes, I start with that approach if they are overused or good experts. Fourth, one of the few pieces of information the expert provides is their CV or resume. This usually lists the professional groups they are involved with. Most surgeons are members of AAOS, the American Academy of Orthopaedic Surgeons. AAOS publishes a lot of literature that can be used to cross the expert when they start giving opinions that are simply off the reservation or contrary to AAOS.

So, as you can see, there is a lot of work to do to cross even the most broken-down expert. Once upon a time, a lawyer in New York City I worked for was so annoyed with repeatedly seeing the same specialist in high profile malpractice cases that he paid our investigator to simply sit and video whether the expert was actually seeing patients or doing expert work. It turned out that the only people seeing the doctor were the Fed Ex and UPS drivers dropping off records from lawyers. That made for good cross! I generally know I have done a good job if the expert’s testimony is bordering on the laughable. That’s my cousin vinny test.

GAZPACHO 101

NeuwirthLaw In the News

Gazpacho with vegetables. Wooden rustic background. Top view. Close-up

I am the cook in my family. Summertime is for tomatoes and gazpacho. It is easy and awesome, as long as you have a blender. Here is the recipe. I found it in the NY Times years ago.

 

  •                 2 large fresh red tomatoes or three medium with cores removed. Chopped to fit blender
  •                 1 large cucumber/ ends removed. Chopped to fit blender
  •                 1 clove garlic peeled
  •                 1 cubanelle pepper (long pale green) ends and seeds removed
  •                 Sherry vinegar (1/4 cup or less to taste)
  •                 Olive oil 3 tablespoons or to taste
  •                 Baguette/hoagie roll (2-3 inch piece torn up)
  •                 Salt and pepper

Put all in blender and blend until all smooth.

Add vinegar, oil, salt to taste.

Serve with a little drizzle of oil on top.

GOT UIM?

NeuwirthLaw Auto Accidents

Ask your Emu !

Your car insurance includes something called underinsured motorist coverage (UIM) and its partner and friend uninsured motorist coverage (UM). You should have these. They are required by Pennsylvania law. Simply put, UIM protects you if you are injured by someone without enough insurance. UM protects you from hit and run drivers or when a deer jumps in front of your car and you are injured in the resulting crash. The deer does not have coverage unless they are a very law-abiding deer.

Why do I have to go back and harp on this issue when it is required by law? Unsurprisingly, your insurance carrier really does not want you to carry it so they allow you to reject it and it reduces your premium a tiny bit. What are you doing when you reject UIM? You are hurting yourself.

Why doesn’t your insurance company want you to carry UIM? Well, because contrary to the situation where another driver hits you and you sue their insurance company, in the UIM context, you are suing your own insurance company for not paying you what you contracted for. So, by encouraging you to reject UIM, they are protecting themselves from you, their policyholder, suing them. Not nice. Sneaky, underhanded? Or buyer beware? Consider yourself warned.

I would like to sit outside every State Farm office with a sign saying GOT UIM?, but it would not be a great use of my time. If I ever speak with anyone about this subject, their eyes glaze over and they are confused or don’t understand it because it is hard to understand in abstract.

Here is a concrete example for you. I have a client who was in a car crash caused by an F-150 pickup truck. He suffered a series of fractures and other injuries. A lawsuit was filed against the F-150 driver and settled for $92,000 of the $100,000 available coverage.  However, the case is worth $300,000 in my mind. If the client did not have UIM, then he would be left with a total possible recovery of $100,000. Not bad, but not ideal given his injuries. Now, the client had UIM coverage of $150,000. So, we are now pursuing the additional $150,000. It still will not be enough, but is pretty close to full compensation for settlement purposes. So, the total recovery will be $242,000 out of a possible $250,000 versus $100,000. Clearly, the UIM recovery is preferable.

Why did the client and I accept $92,000 instead of $100,000? Because the fight to get the full $100,000 would have cost an additional $5,000 in expert fees and other expenses and resolving the case against the pickup truck allowed us to move against the UIM insurer. That is helpful because a UIM insurer has a duty of good faith and fair dealing in relation to their insured.  In other words, the UIM insurer has to treat you as the insured better than an opposing insurance company. They will still try to lowball you, but there are multiple state insurance laws and bad faith lawsuits outlining how they cannot treat you like dirt, though they want to.

DO YOU LIKE WHAT YOU DO?

NeuwirthLaw For Lawyers

Before the pandemic most people, like 70%, hated their jobs. Once pandemic was in full force, a lot of people said I don’t want to go back to that stinking job and found another or quit and stayed home. Now, with the hints of recession around, people are scrambling to get back into the workforce. Nevertheless, the question remains, do you like what you do?

I like what I do. I am probably happiest taking depositions and reading medical records to figure cases out. I am certainly happiest doing what I am doing compared to all my other lawyer jobs. I have been an assistant district attorney, a medical malpractice defense lawyer, and even served a year as a bankruptcy lawyer, which felt like solitary confinement. Anyway, as a plaintiff’s personal injury lawyer, I get to fight with people for a living and I like that. Motor vehicle cases and slip and fall cases are the basic everyday work in my practice. I work on a select few medical malpractice cases that appeal to me and refer others out to quality counsel. I work on select products liability cases and handle carbon monoxide and some interesting cases against gas producers. Overall, I am always looking for clear liability cases and good damages.

But, I like a good scuffle. One of my old bosses used to say, “Don’t get into a fight with a pig, because all that happens is you both get covered in crap and the pig likes it.” I have found that I like being the pig in the fight. The funny thing about our civil legal system is that the system firmly believes that lawyers on opposing sides fighting for their clients gets to the truth of the matter better than any other system. In my view, that is sort of near the truth. The adversary system lets both sides see the weakness of their positions and hence promotes settlements for money damages, which is the goal of most court systems. Promoting settlements is the public policy goal that the civil systems strive for. Most cases can be settled to the satisfaction of all parties. Some cannot and those cases go to trial. If all cases ended in trial, the Courts would be overwhelmed and cases would be backlogged for years.

For better or worse, the Philadelphia County Court of Common Pleas worked fairly efficiently before pandemic and is getting back up to speed.  Philly regularly moved cases to trial within 18 months of the case being filed in Court. Contrast that with New York state where cases take five years or more to get to trial and you see that our system functions decently well. Philadelphia’s prowess in moving a busy docket along has forced some of the other counties to try to reform their delays and some progress is being made.

WHAT DOES THE PROCESS OF MOVING A PERSONAL INJURY CASE ALONG LOOK LIKE?

NeuwirthLaw For Lawyers, Uncategorized

 

When a case first comes in, the client is usually a stranger to me. They are coming from google or a word of mouth referral, but we have likely never met. So, there is an initial process of getting to know you and in the first conversation or two I explain that you do not pay me on an hourly basis and that I usually take a 33% fee at the end of the case. Then, there are a lot of basic facts to figure out at the beginning of the case. This is similar to any long-term project you may work on. If you want to find surveillance tape from a car crash in two years, it will have been lost. If you get it in the first week or two after the crash, you may be able to get it. Even then, they are hard to find. Often, I like to go to the crash scene or the slip and fall scene to get a sense of the area and get my own photos. Often, for evidentiary reasons, I send my private investigator to do that work. Next, I will meet with the client on Zoom and ask any needed follow up questions.

Once a case is accepted into the office and our initial letters go out, there is often a quiet period of months while we wait to see how the client’s injuries play out. Injuries determine settlement values.  After a period of less than a year, we will make a demand to settle the case. The demand is directed to the defendant’s insurance company and has a 30 day limit on it. The insurer will usually call on day 25 and make a low-ball offer. At that point, the client is involved to talk about what they are looking for, how urgent is the need for money in their lives to get back on their feet, and if they have a strong case, we will discuss that the case should move into a formal filing of a lawsuit. Then, I will draft a Complaint and file it electronically in Court. My process server or the sheriff will go out and serve the defendant by hitting them with the paper Complaint and the case is started. Rarely, defendants try to avoid service. Avoiding service is frowned upon by the Court system. I have only defaulted a defendant once for avoiding service. A default is bad news for the defendant as it often means that they have admitted all of the allegations in the Complaint. So, it means that I win on the facts and damages are all that is left to determine. Sometimes, service in a particular County is important and periodically, I will have people served in Counties for the sole purpose of gaining venue there.  It matters and a good lawyer will go the extra step to think that process through.

Once service is Complete, the defendant’s lawyer will answer and there will be another delay of 3-6 months while the case waits in line in Court. Often after six months of nothing happening, me and the defense lawyer will exchange written discovery and prepare for depositions. In the meantime, on a routine case, I have obtained a medical expert witness and collected any and all medical records I can find.

The most critical part of discovery are the depositions. Usually, this is the only major involvement by the client with the other side’s lawyer. So, it is important for the client to make a decent presentation. To some extent, these are popularity contest type situations. It is important to be pleasant. It is also important to tell the truth and not get tripped up by verifiable falsehoods. So, I will usually prepare clients for a two hour deposition for two hours a few days before the deposition. It allows me and the client a chance to discuss the deposition in general and go over all the possible strengths and weaknesses of their case. Did they say that they felt great at the ER, when they had a broken hand? Did they say that they were driving 50 mph in a 25mph zone? Did they say that they fell, but have no idea what caused their fall? Do they have a felony conviction? Had they been drinking? All of these are regular occurrences in deposition prep of personal injury clients. My clients are everyday people with the good, the bad, and the ugly that comes with it. Regardless of their history, most every issue or problem can be addressed with full patient preparation. I always like to remind clients after their depositions that we anticipated all of the hard questions that were asked.

Finally, cases move towards settlement discussions or start heading for trial when the focus on the case heats up and both sides begin to focus on possible resolution of the case. If the case is going to look like a trial case, then trial prep will begin in earnest about 8 weeks before the actual trial date.

THE DONALD TAKES THE FIFTH

NeuwirthLaw For Lawyers, In the News

Former President Trump invoked his fifth amendment protection against self-incrimination today in the investigation by the New York Attorney General’s office into civil fraud claims.

Most likely, he was asked: “Did the Trump Organization provide one value to taxing authorities for Property X and a different value to financial institutions? Answer: I invoke my right not to answer.

Why is this significant in civil law? Well, the general rule is that a Criminal defendant invoking his fifth amendment rights is legally permissible and actually heavily protected. What does that mean in practice? Well, in a criminal trial, a defendant does not have to testify and a jury is told that they are to draw no inference about guilt or innocence from that decision. Even a criminal defendant’s refusal to speak with detectives about a crime is not allowed to be mentioned or discussed in front of a jury for the same reason. You have the right to remain silent.

Trump invoked his fifth amendment rights in the NY civil investigation because his testimony in the current civil investigation is a statement under oath and if he were to admit that there was some improper activity in how properties owned by his business were valued those admissions might result in a finding of civil fraud and a fine or other monetary penalty, but not jail time.  However, those same statements could be used in a criminal case to prove that he is someone who does not tell the truth etc. As a result, he is permitted to take the fifth to protect him from incriminating himself in the criminal cases.

Significantly, in a civil case, the fact that he takes the Fifth Amendment in response to deposition questions CAN be used against him. There is no protection in a civil case. So, when Trump invokes his fifth amendment privilege in the civil fraud investigation, a jury will be told that he refused to answer questions and the prosecutor can ask the jury to find that his refusal to answer was essentially a refusal to cooperate and draw your own inference.  Essentially, it looks an awful lot like an admission of liability in the civil context.  Often, when a civil case results from criminal activity, the defendant must invoke the Fifth in the civil deposition. For example, if you were arrested for DUI following a car crash and the DUI case is ongoing, then in a resulting lawsuit by the other drivers you injured, you must invoke the Fifth Amendment right not to testify so as to avoid admitting guilt in the criminal context.  For example, I would ask the defendant, “Were you driving and intoxicated?” Answer: I refuse to answer on the grounds of my fifth amendment rights.  Now, that invocation can be held against you in the civil case.  I usually will record this testimony on video for playback before a jury if I expect it is coming.  So, in my view, the driver has then admitted liability or cannot dispute liability and all but admitted that he was drunk and caused the crash. The driver is stuck because if he wants to fight the DUI, he cannot answer my question. But, by doing so, he concedes fault. Often, as a result, defense lawyers will ask for a stay of the civil deposition pending outcome of the criminal case and that request is often granted. Once the DUI driver is convicted, then the conviction can be used against them.

Interestingly, a defendant’s guilty plea to a traffic violation cannot be used against them in Pennsylvania civil cases. A guilty plea to a summary offense such as careless driving is generally not admissible in a civil matter. Evidence of a conviction for a traffic violation or a minor misdemeanor is inadmissible in a civil action arising out of the same events. Loughner v. Schmelzer, 218 A.2d 768 (Pa. 1966). 42 Pa.C.S. Section 6142(a) provides: “A plea of guilty or nolo contendere, or a payment of the fine and costs prescribed after any such plea, in any summary proceeding made by any person charged with a violation of Title 75 (relating to vehicles) shall not be admissible as evidence in any civil matter arising out of the same violation or under the same facts or circumstances.” Evidence that a traffic citation was not given to a driver is also inadmissible. Simpson v. Robinson, 361 A.2d 387, 388 (Pa. Super. 1976). However, in Federal Court there is a chance that a civil guilty plea to speeding or improper lane change may be admissible against you in a civil lawsuit. This is news to most lawyers but still quite true.

BROKEN WRIST WITHOUT SURGERY $43,000 vs. BROKEN WRIST WITH SURGERY $100,000

NeuwirthLaw For Lawyers, Slip and Fall

Why is there such a huge disparity in settlement numbers here? Well, in most personal injury cases there is an element of pain and suffering that makes up most of the settlement claim. In the non-surgical case, the client may have pain and a splint or some period of healing. Perhaps after 8 weeks, they are better and back to work. Perhaps they complain of pain for the next nine months but get no therapy or care. The only evidence of pain and suffering is the client’s word. While we generally believe our clients are telling the truth, the defense will always argue that they are exaggerating the duration of pain and suffering for financial gain.

On the other hand or wrist, nobody would willingly go through a surgery for financial gain, or at least that is the commonly accepted belief. Further, no surgeon would conduct a surgery if it were not needed. So, surgery basically tells all involved that you had a real injury, that needed surgical repair and often with metal plates or screws etc. Surgery, however much it is needed, leaves scars and often results in arthritis or unpleasant sensations when cold weather approaches etc.

So, really surgery is proof of injury, proof of pain and suffering, and proof that you will have a lifelong scar, injury, or effects from this single accident. The surgery validates your claim of pain and suffering in a way that mere complaints of pain without surgery do not have validation.

Now, the numbers above vary with crash facts and a host of other factors. What are those factors? Did you lose time from work due to the broken wrist? Are you a cellist and cannot play cello? Did you work right through the injury? Did you contribute to the crash in any way? Is there a defense of any sort for the other side? Did you have a prior wrist injury that clouds the extent of the fracture?

One issue that often crops up is osteoperosis. Defense lawyers and defense doctors will often raise it as an issue to put the thought in a juror’s mind that maybe the bone fracture would not have happened except for the brittle nature of the client’s bones. This is a red herring in my view. You would not have been injured if there were no crash. Whether you are the proverbial eggshell plaintiff or not is not the plaintiff’s fault. Rather, the case is about the injured person and you take the injured person as they are regardless of why they are that way. I had a lovely client with a unique condition where her bones would break upon minimal impact. She was a nice woman and a plaintiff lawyer’s dream client, but then she moved out of state.

SLIP AND FALL CASES

NeuwirthLaw For Lawyers, Slip and Fall

These cases often are the most challenging cases for a personal injury lawyer and client. Why? Well, there is always some allegation that the plaintiff could have avoided the trip and fall or whatever caused their injury. Most of the cases of this type that I handle are falls on black ice, falls caused by uneven sidewalk blocks, and often falls caused by shoddy repairs that are not to code. None of them are complicated fact patterns.

For example, I settled a case last year where a cement sidewalk block was repaired by a landlord and his contractor. In order to set concrete, you need a wood frame supported by metal stakes in which to pour the concrete. In my case, the concrete set, but the rebar and wood frame were never removed. The client caught a foot on the unexpected rebar sticking up and fell breaking her arm. In another, steps at a church were replaced by a contractor who did not follow the building code. The steps were uneven and different height steps are something that our brains do not process well and my client broke her hip. During discovery, the church argued that the steps were never repaired, but holes in the concrete that were repaired showed that the handrail was moved and the case settled after my client testified.

In Philadelphia and most local jurisdictions, the homeowner or property owner next to the sidewalk is responsible for the condition of the sidewalk. My preference is always to sue a corporation or municipality rather than a residential homeowner. Cases against corporations that do not properly maintain their sidewalks, parking lots, and grounds are much more palatable targets for me than a single homeowner who is just trying to get by and may have left their sidewalk in disrepair.

Often, the legal concept of subsequent remedial measures comes into play. This rule is that if a business repairs its sidewalk after my client falls, the repair is not admissible as evidence that the sidewalk was in disrepair. This is because public policy wants the landowner to repair the walkway and not be afraid of how that repair would look in court. The repair is however admissible under certain conditions. For example, the City of Philadelphia often repairs its potholes within a day or two of a major crash, though the pothole has been there for a year or more. I often try to use this as evidence that it only takes a day or two to respond when the City thinks it has legal liability or will get sued, but they waited a year or more despite knowing that there was a problem, but an injury had not yet occurred. Often, the repair is a concession by the landowner that there was a problem, even though it cannot be brought up as such in court.

Deposition:

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CONTEMPT AND SANCTIONS

NeuwirthLaw In the News

Steve Bannon found guilty of contempt. Photo Credit: THE HILL.

Steve Bannon was convicted of contempt. This is a pretty rare thing in my experience. Most often, contempt charges are used in criminal cases or very unusually in civil or national security cases.  There is an old adage that a person charged with contempt holds the keys to their own jail cell. Contempt findings are usually used to force reporters to reveal sources or mob associates to cooperate with the government once they have a cooperation agreement in place.

Essentially, once you are faced with a contempt hearing, meaning the possibility of contempt charges or findings, most people cave and do what the opposing party wants them to do.  The Court’s role is just to find if you have disregarded or sought to frustrate the normal judicial process.

In civil cases like mine, we usually seek sanctions and not contempt.  Sanctions are a punishment and are sometimes severe.  The most severe sanction is dismissal of your case. Anything short of that is usually negotiable.  Nevertheless, nothing is normal with the Trump circle. Fighting a contempt charge where the facts are clear is plainly stupid. The client here was not planning on winning. I think he is hoping to get a pardon down the road. Trump is known to his lawyers as the worst possible client. I expect that we will eventually hear that Bannon is not paying his lawyers or is unhappy with losing his case. Regardless, it is clearly not how lawyers normally practice and not good client behavior.

The amusing thing about all of the January 6 machinations and Trump world fighting the process is that they are in a very pro-democratic venue that was simply overrun by a group of out of state people with different political beliefs. Now, when it is time to be held accountable, there could not be a worse venue for the out of state Republicans. Except, perhaps Philadelphia.

I expect that contempt trials are few and far between. I have not heard of one, but who knows. The important thing is that someone pursued the case for the simple purpose of showing that the law cannot be undone and should apply to everyone, no matter how close to the President. That much is clear.