OTLA Trial Lawyer Fall 2021

13 Trial Lawyer • Fall 2021 breathed a sigh of relief. Another true life example. I was se- lected as a plaintiff’s arbitrator in a case where the plaintiff’s lawyer submitted a doctor’s declaration that was short and sweet and said the collision had caused a herniated disk. In contrast, the defense called two doctors live and in-person. Not surprisingly, during deliberations I was lucky to win the battle to persuade the swing arbitrator that the declaration was more credible than the live defense doctors’ testimony. Later, I asked the plaintiff’s lawyer why he’d submitted the bare-minimum declaration when he knew the IME doctors were coming live. He responded, “The rule allows it. Why spend money when you don’t have to?” The certainty that the defense doctors would pummel the causation issue wasn’t enough to prompt the plaintiff’s attorney into spending an extra couple thousand dollars to give his client more of a fight- ing chance. The lesson is you need to budget the case wisely, and don’t hesitate to put on live expert testimony if that’s what it takes to win. Use your objections Object if the defense arbitrator puts on his or her advocate’s hat. Some defense attorneys are either not well prepared, or have a minimalist style on cross examina- tion which doesn’t turn the plaintiff into a smoking pile of rubble. Certain defense arbitrators will ride to the rescue and launch into a lengthy cross-examination of the plaintiff, or will try to fight your doctor or other expert in their field of expertise. Here’s a true life example. Defense arbitrator: “Doctor Radiologist, let’s start by looking at something no one else has discussed today— slide number 42 from the MRI. Now, Doctor, would you agree the plaintiff’s pre-existing neuralgia con- tributed to what you diagnose as a diffuse brain injury caused by the defendant’s 18 wheeler that we admit was speeding out of control?” Twenty minutes later, the same arbitrator wasn’t done: “Doctor Radiologist, isn’t it true you never looked at the actual MRI of the plaintiff’s lumbar disks that was done 12 years ago, you only looked at the report? Doesn’t that make your opinion worthless in com- parison to the brilliant and esteemed defense radiologist who actually looked at the MRI slides?” Often such aggressive defense arbitra- tors wander far afield and nobody stops them. No rules regulate such behavior. It’s more a matter of professionalism, where the parties should be able to expect three fairly neutral arbitrators and one defense attorney in the room—not two. As an attorney, I’ve found it useful to give such overly-aggressive defense arbitrators a reasonably-long leash. Let them start to explore areas the defense attorney never mentioned or seek clarification of fuzzy issues, or take five minutes to ask questions. Then, if the defense arbitrator transforms himself into a pit bull and tries to tear your case apart rather than merely seeking clarification, turn to the swing arbitrator and object. Good ones are “beyond the scope of direct and cross- examination” and “I object to the defense arbitrator acting as an advocate.” Such objections are sometimes sustained. Even if they’re overruled, you’re sending a mes- See On Target p 14 Computerized visuals of key evidence or legal points prepared by a trial technician can go a long way toward creating an understanding of important issues. As they say, seeing is believing. You don’t want to be boring in your presentation of evidence.