OTLA Trial Lawyer Fall 2021

8 Trial Lawyer • Fall 2021 And that he plans to call a known defense biomechanical engineer to testify via Zoom. In response to this, Goodness does two wise things. The first is he immedi- ately requests a copy of the report Pomp- ous intends to submit at arbitration, a request he is allowed to make, and which Pompous must comply with. 14 The sec- ond is he reasserts his objection to Pomp- ous presenting any evidence due to his failure to comply. The arbitrators set a short hearing for the following day. They invite Goodness to present a brief argument and Pompous to reply. Pompous takes the opportunity to explain his assistant failed to calendar this deadline, otherwise he would have taken time away from his vacation in Cabo to submit the PHSOP. “What’s the harm?!” Pompous further submits, “They have it now and will get the report soon.” Goodness knows from prior experi- ences the panel is likely to agree with Pompous. He knows the panel will likely suggest one of two things: either the arbitration continues as scheduled with the panel instructing Pompous to produce the report by the end of the day or the arbitration is continued to a later date so as to avoid prejudice to any party. Goodness knows the panel can do this due to the great discretion granted to them. 15 Thus it comes to pass the panel presents exactly this choice to Goodness. Goodness, knowing his client has waited long enough for closure on the case, chooses the former option. At 10:15 p.m. that night, Pompous emails the report to Goodness. Goodness is surprised upon receiving it to see the report is actually a simple letter opining that Goodness’s client should have recov- ered from his back and neck injuries in four to six weeks because that’s what all people who suffer neck and back sprains do. The letter is not in the form of a declaration or affidavit. Goodness knows this could be a dire mistake on Pompous’s part. Ready for battle The day of the arbitration arrives. Goodness and his client are ready. Good- ness has prepared the fact witnesses who will be testifying. Goodness has put to- gether a sterling opening and closing presentation. Goodness is ready for battle. Goodness first moves to admit the documents detailed in his PHSOP. He moves to admit the medical records and billing statements, the property damage records for Person’s car, the police report made after the underlying car crash, photos taken at the scene and experts’ declarations. Goodness does this because he knows all of these relevant documents are deemed admissible because Goodness met the PHSOP obligations. 16 Because the documents are then ad- mitted, Goodness uses key documents in his opening presentation. Goodness highlights the police report’s finding of fault against the other driver, shows photos detailing the severity of the crash, then shows highlighted critical portions of his client’s chart notes and experts’ reports on injuries and damages. By the time the opening presentation is done, Goodness has walked the arbitrators through everything they need to find in his client’s favor. Pompous sits stone faced throughout knowing that Good- ness’s ability to use these exhibits right out of the gate is a valuable advantage. Pompous notices a small mountain of dandruff on his suit coat’s right shoulder and he quickly brushes it away. Pompous then seeks to admit his evidence. And it’s here Goodness pounc- es. Goodness immediately objects to the admission of the expert defense doctor’s opinion letter. Goodness points out to the arbitrators the letter is inadmissible because it is not in the form of an affida- vit or a declaration, as the rules require, and is merely in the form of a letter. 17 Because of this, the opinion letter cannot The Good Stuff Continued from p 7