OTLA Trial Lawyer Fall 2021

12 Trial Lawyer • Fall 2021 talk and no visual graphics are boring, and boredom can lead to lower-then- anticipated awards. Figure out offsets and PIP in advance Are you representing the PIP carrier pursuant to their demand? What’s up with the workers’ compensation lien of $32,168? What about that nasty ERISA lien of $16,983? Will Equian discount its $67,833 lien on behalf of Kaiser more than the customary one-third, or did you bother to negotiate with Equian before your arbitration? What is the defense position on any offsets from the even- tual UIM award? It’s important to know in advance how any award will be dis- bursed, especially because your client won’t like being surprised when his $76,823 arbitration award gets chopped down to $23,551 because you failed to warn him about disputed offsets. It’s best to include information about offsets in your arbitration memorandum so the arbitrators know what they are deciding. Use experts Call a doctor to testify if possible, and don’t submit a doctor’s letter as evidence unless you’re absolutely sure the defense won’t object. A doctor can testify by speaker phone, video conferencing, per- petuation deposition, by declaration or live in-person. In most cases, the defense will bring a records review doctor or IME doctor to try to destroy the case. It is distressing, as an arbitrator, to watch an otherwise well-prepared plaintiff’s at- torney unilaterally disarm by failing to present doctor testimony in some form. Whether a doctor’s letter suffices is de- pendent on the rules governing the hear- ing, i.e. rules created by the insurance policy, the Uniform Trial Court Rules, Oregon Revised Statutes or other rules agreed to by the parties. Sure, not calling a doctor is cheaper. But when the defense denies causation of injury, does your cost savings from not calling a doctor to tes- tify outweigh the risk of a defense award or a reduced award after you give the defense doctor free rein as the only tes- tifying doctor? True life example. The plaintiff’s law- yer, in the middle of his case in chief, submitted a doctor’s letter that said the car crash caused the shoulder injury for which the doctor did surgery.The defense attorney: “Objection. It’s not a sworn declaration.”This led to we three arbitra- tors kicking the lawyers out for twenty minutes while we debated whether the letter sufficed. A further problemwas the lawyers couldn’t agree on which set of rules applied to the arbitration. In the background, the question of a potential legal malpractice claim loomed. If I couldn’t persuade the swing arbitrator to allow the letter in, the defense might have won on a motion for directed verdict in the absence of expert evidence that the collision caused the injury. Fortunately, the arbitrators let the letter in, and I On Target Continued from p 10