Practice Tip: 30 Days Before Trial ' Must-Have Meetings

In the January 2003 Practice Tip, I discussed the list of 'issues, witnesses and exhibits' one should compile to highlight the evidence required to establish a prima facie product liability case. In this issue, I discuss two individuals with whom the trial lawyer should meet within the 30 days prior to trial: the client and the physician. In a future tip, I will discuss meeting with the engineering expert. For ease of reference, all individuals are deemed male. For purposes of the discussion, the case concerns injury caused by a defective machine.

Meet with the Client

First and foremost, the lawyer should meet with his client ' in this case, the plaintiff. The most important thing to stress is the client's testimony in this pre-trial meeting. In addition, the client should be made aware of the fact that jurors may be watching him from the first moment he sets foot in the courthouse.

• Dress. The trial goes on even outside the courtroom, which means that the client should dress and act appropriately, at all times. A sports jacket with solid shirt and no tie is appropriate for men; for women, a skirt and blouse, possibly with a jacket. It is a good idea to see the intended outfit beforehand. Jewelry should be kept at a minimum ' a watch, earrings, wedding band or religious neck ornament. Any fancy jewelry, such as ostentatious watches or rings, should be avoided.
• Conduct. The client's conduct is under scrutiny every moment of the trial. After one of my clients, a youth who lost several fingers in a lawn mower, received an unusually small settlement from the jury, a court officer suggested that the reason may have been that the young man stood outside the courthouse prior to my arrival each day, making obscene noises to the young women who were passing by.
• Communication. Another serious problem may arise if the lawyer and the client do not speak the same language. It is difficult enough to prepare a witness properly when you both speak English; however, if your client does not speak English, you will be well advised to get a translator to go over each question before trial. Do not rely on your secretary, a friend or co-counsel who speaks the plaintiff's language ' or even yourself ' if the plaintiff's native language is not English.

Lawyer, Physician, and Plaintiff

• Testimony. There are four things a physician has to testify to: the injuries, their cause, their permanence, and medical expenses. It is important to explain to the physician that, in addition to his testimony, his job is to introduce the 'blood and gore' to the jury.
• Other Evidence. Bring the photographs you intend to admit into evidence. If the physician is not the treating doctor and is asked to look at the plaintiff's injury, he may not be able to identify the plaintiff. The physician should be shown photographs that will be entered into evidence on the plaintiff's direct case and asked if he can describe the injury that is shown in the photograph.
• Responses. The physician should be told that when a photograph is shown to him and you utter the words: 'Is that a fair and reasonable representation of ” he must reply, 'yes.' The physician must also be advised that in the jurisdiction in which the case is being tried, his opinion must be given 'with a reasonable degree of medical certainty.'
• Causation. It is important that the physician knows he will testify as to the cause of the injury. He must be prepared to answer the question, 'What is the competent producing cause of the plaintiff's injury?' with the response, 'The accident of [name of plaintiff].' The physician should be asked, 'Doctor, what does the word 'prognosis' mean?' in order to lead into questions regarding the permanence of the injury.
• Actual Damages. Last but not least, the physician should answer the question, 'Doctor, what is the fair and reasonable value of the medical services provided to the plaintiff in this case to date?' and his answer should be what the medical bills are and what the certified hospital bills are. If you do not have certified bills that are permitted into evidence under the applicable rules, then the physician may have to first establish that he is familiar with the costs of such treatment in that vicinity at the time of treatment. Always tell the physician he is not to mention the words 'insurance,' 'no-fault', etc.

Lawrence Goldhirsch is Trial Counsel to Weitz & Luxenberg, PC in New York. Phone: 212-558-5500.

In the January 2003 Practice Tip, I discussed the list of 'issues, witnesses and exhibits' one should compile to highlight the evidence required to establish a prima facie product liability case. In this issue, I discuss two individuals with whom the trial lawyer should meet within the 30 days prior to trial: the client and the physician. In a future tip, I will discuss meeting with the engineering expert. For ease of reference, all individuals are deemed male. For purposes of the discussion, the case concerns injury caused by a defective machine.

Meet with the Client

First and foremost, the lawyer should meet with his client ' in this case, the plaintiff. The most important thing to stress is the client's testimony in this pre-trial meeting. In addition, the client should be made aware of the fact that jurors may be watching him from the first moment he sets foot in the courthouse.

• Dress. The trial goes on even outside the courtroom, which means that the client should dress and act appropriately, at all times. A sports jacket with solid shirt and no tie is appropriate for men; for women, a skirt and blouse, possibly with a jacket. It is a good idea to see the intended outfit beforehand. Jewelry should be kept at a minimum ' a watch, earrings, wedding band or religious neck ornament. Any fancy jewelry, such as ostentatious watches or rings, should be avoided.
• Conduct. The client's conduct is under scrutiny every moment of the trial. After one of my clients, a youth who lost several fingers in a lawn mower, received an unusually small settlement from the jury, a court officer suggested that the reason may have been that the young man stood outside the courthouse prior to my arrival each day, making obscene noises to the young women who were passing by.
• Communication. Another serious problem may arise if the lawyer and the client do not speak the same language. It is difficult enough to prepare a witness properly when you both speak English; however, if your client does not speak English, you will be well advised to get a translator to go over each question before trial. Do not rely on your secretary, a friend or co-counsel who speaks the plaintiff's language ' or even yourself ' if the plaintiff's native language is not English.

Lawyer, Physician, and Plaintiff

• Testimony. There are four things a physician has to testify to: the injuries, their cause, their permanence, and medical expenses. It is important to explain to the physician that, in addition to his testimony, his job is to introduce the 'blood and gore' to the jury.
• Other Evidence. Bring the photographs you intend to admit into evidence. If the physician is not the treating doctor and is asked to look at the plaintiff's injury, he may not be able to identify the plaintiff. The physician should be shown photographs that will be entered into evidence on the plaintiff's direct case and asked if he can describe the injury that is shown in the photograph.
• Responses. The physician should be told that when a photograph is shown to him and you utter the words: 'Is that a fair and reasonable representation of ” he must reply, 'yes.' The physician must also be advised that in the jurisdiction in which the case is being tried, his opinion must be given 'with a reasonable degree of medical certainty.'
• Causation. It is important that the physician knows he will testify as to the cause of the injury. He must be prepared to answer the question, 'What is the competent producing cause of the plaintiff's injury?' with the response, 'The accident of [name of plaintiff].' The physician should be asked, 'Doctor, what does the word 'prognosis' mean?' in order to lead into questions regarding the permanence of the injury.
• Actual Damages. Last but not least, the physician should answer the question, 'Doctor, what is the fair and reasonable value of the medical services provided to the plaintiff in this case to date?' and his answer should be what the medical bills are and what the certified hospital bills are. If you do not have certified bills that are permitted into evidence under the applicable rules, then the physician may have to first establish that he is familiar with the costs of such treatment in that vicinity at the time of treatment. Always tell the physician he is not to mention the words 'insurance,' 'no-fault', etc.

Lawrence Goldhirsch is Trial Counsel to Weitz & Luxenberg, PC in New York. Phone: 212-558-5500.