OTLA Trial Lawyer Fall 2021

15 Trial Lawyer • Fall 2021 early on where the defense will go for the fatal attack on your case and then shore- up that area, so you don’t go down in flames. Cross-examine Save a few bullets for cross-examining the defense experts. Arbitrators recognize the “usual suspect” doctors and defense biomechanical engineers, some of whom are taken more seriously than others. It is worth cross-examining such witnesses about the numbers of cases they handle for insurers and defense firms per year, and how much of their income depends on such work. More than 10 minutes on the topic is overkill unless you are facing an artful dodger. For medical witness cross-examination, a proactive strategy is to run the defense medical report by your own testifying doctor before arbitration and ask the doctor to help formulate a few zinger cross-examination questions for you. Another strategy is to reduce the need for cross-examination of a defense expert by having your own doctor per- suasively testify on direct examination about disputed issues such as prior infirm conditions, causation, diagnosis and prognosis. Your goal is to blow up the IME doctor’s testimony in advance. If none of that works, at least ask the de- fense doctor about non-controversial things the defense attorney may be deny- ing, such as causation of any injury, i.e. on cross-examination, ask, “Mr. Smarmy Defense Doctor, the plaintiff was hurt in the crash, weren’t they, and now we’re just arguing over how bad that injury was, correct?” Know when to stop talking Yeah, you’ve mulled over your closing for days, you’re fired up and maybe you’ve got a killer multi-media presentation. But in arbitrations, you’re pretty much done by the time you finish crossing the last defense witness. Your energy and emo- tions are better spent in thorough case preparation than in an exhaustive at- tempt to emotionally involve the arbitra- tors in your closing. In order to arm your plaintiff’s arbitrator with weapons to use in the upcoming deliberation, useful things to emphasize in closing are: evi- dence proving permanency of injury, the quality of your evidence on disputed is- sues such as future medical costs and a life care plan, noneconomic damages they might overlook such as the client’s sleeplessness for 1.5 years, mental an- guish shown by loss of freedom by not being able to drive or walk for an ex- tended time, and then circling back to point out the key points of medical causation, diagnosis and prognosis. Then stop talking. Breathe deeply. It’s over! Tim Grabe specializes in uninsured motor- ist, catastrophic injury and maritime sal- vage cases. He serves as a Multnomah County pro tem judge. His office is located at 1826 NE Broadway St., Portland, OR 97232. He can be reached at 971-645- 7176 or timgrabe@icloud.com.