OTLA Trial Lawyer Fall 2021

14 Trial Lawyer • Fall 2021 On Target Continued from p 13 sage that the defense arbitrator is going over the line and needs to be reeled in. Be professional, not obsequious Nobody wants to hear bickering be- tween counsel, and arbitrators appreciate congeniality and efficiency. That being said, one thing that is uncomfortable is when a plaintiff’s attorney assures the arbitrators he and the defense counsel have handled many cases together and get along just fine. Clients don’t want to hear collegiality blend into what they might perceive as collusion. Bates stamp your materials Little is worse than, in the middle of your expensive doctor’s testimony, watching the arbitrators roll their eyes while you tell your doctor: “OK, go to that page, it’s about two inches in…. no, you’re too far back, well, maybe it’s more like an inch in, can you find it? Here, let me see if I can help… hmmm, where is it?” It is much better to say, “Doctor, let’s go to exhibit page PL123 and talk about your diagnosis.” Bates stamping means you avoid wasting embarrassing amounts of time. Prove mechanism of injury Your doctor didn’t see the crash, and is not an expert on metallurgy, physical forces or biomechanics. The defense is likely to bring a biomechanical expert to say there was no mechanism of injury. Or maybe bring an accident reconstruc- tion engineer to say the crash generated only teeny, tiny, almost non-existent g- forces. The defense will couple such testimony with a doctor who will say the claimant’s injury is pre-existing, or if the crash did cause an injury, it went away after six weeks, when magically the prior conditions took over. Defense witness Brad Probst and his ilk are busy people, and you need to be ready for them. Thus, try some early Requests for Admission on whether the crash caused any injury at all. If the RFA is denied, consider retaining a biome- chanical engineer to testify on mecha- nism of injury, if the case justifies the cost. The old approach of scheduling a pre-arbitration meeting with your doctor, and giving the doctor some crash photos of the patient’s car and maybe some repair records so they have a basis for testifying about the crash, is weak (but cheaper) compared with retaining a biomechanical engineer. And remember — an accident reconstruction engineer, unless he or she is trained in medicine, cannot give an opinion about whether the crash generated enough forces to injure the plaintiff in the crash. Accident reconstruction engineers also generally cannot testify about mechanism of in- jury. That is why the defense commonly uses a “three Musketeers” strategy of hammering your case with an accident reconstruction engineer, a biomechanical engineer and a doctor. You have to decide