Advocacy in ADR

We continue this month with our discussion of tips for attorneys presenting medical malpractice cases in alternative dispute forums.

Revealing Evidence Early On

Counsel frequently worry that revealing too much at mediation will prejudice them, should the case proceed to trial. They hedge their bets by not revealing evidence they believe will substantially affect their case. However, disclosing this kind of evidence can help the mediator move the parties toward settlement.

For example, the defendant may be reluctant to share surveillance videos that undermine the plaintiff's deposition testimony, or may want to “save” the videos until a pre-trial conference or for use during cross-examination. The mediator may be able use the video to help the parties re-evaluate their positions by showing its limited significance to the defense or by showing the plaintiff that she needs to soften her position. Often, the video is not as devastating as the defense perceives. Conversely, sometimes the plaintiff needs to know he will be forced to explain the video to a judge and jury. A mediator can effectively do what opposing counsel could never do.

Because mediations often occur close to trial, trial depositions of experts frequently have been taken. Providing portions of the testimony and emphasizing the significance of direct or cross-examination may help either side re-evaluate its position. Merely explaining to the plaintiff or the insurance representative that the deposition went well or badly does not convey the impact of actually seeing or hearing it. An experienced mediator can use this testimony to assist either side in re-evaluating its case.

Other significant evidence presented at mediation may help the mediator to convince the parties to re-evaluate their positions. For example, in a case involving the death of a jogger hit by a truck, plaintiff presented an animation of the accident. It was extremely effective in explaining plaintiff's version of the accident. Because the defense decision makers were present and could evaluate the animation's effectiveness, they were able to reconsider their position. In that same mediation, the plaintiff played a video of the decedent giving a talk to a group of his students, which allowed defendants to re-evaluate damages issues. This presentation permitted decision-makers to understand what was going to happen at trial, and adjust positions accordingly.

Counsel are increasingly sophisticated and knowledgeable about the mediation process. The imagination and skill counsel bring to these proceedings continue to increase. Counsel need to focus on those aspects of the case that will help the mediator do her job.

Arbitration

Binding arbitration has become a frequent method for resolving serious, complex personal injury and malpractice cases. The parties determine and control the process. The arbitrator is selected by agreement. Scheduling, evidence to be submitted uncontested, witnesses who will testify, and the presentation of expert testimony by deposition, live testimony or reports are all in the control of the parties. They can establish high/low damage parameters, confidentiality and matters important to them.

The savings in time benefit both sides and are especially appealing to physician defendants. Counsel can more easily accommodate parties and witnesses who have to travel considerable distances, or whose job requirements preclude their attending trial.

Complex personal injury and professional malpractice cases have become extremely expensive to try. It is not unusual for each side to have at least two experts on liability, and several on damage issues. Usually, the parties have exchanged expert reports before arbitration. Often, agreements are reached providing expert testimony will be by reports. Before agreeing, however, counsel must consider the consequences.

Counsel must carefully consider whether reports are adequate to stand alone as an expert's complete testimony. At trial, experts usually expand on their reports, explaining terms and procedures in greater detail, and expanding upon the reasons for their conclusions. Counsel must determine if supplementation is necessary to fully articulate their case in chief.

Both sides should consider submitting additional reports to dispute conclusions reached by opposing experts or to expound in detail on why opposing experts are incorrect. Supplemental reports may reference important literature or standards which either side had anticipated using on direct or cross examination. If the reports only provide a summary of the expert's opinion, the arbitrator may be left without sufficient information to evaluate the full extent of the expert's testimony. Despite the expense, counsel should consider the need for one or more experts to be presented live.

This is also true for damage experts, who are often presented solely via written report. There is often a wide divergence on the various damage issues, and the expert's testimony, rather than just a report, may be more convincing to the arbitrator. In such a case, the cost of presenting the expert may be more than justified by a substantially higher ' or lower ' award.

Finally, both the arbitrator and counsel must keep in mind that the parties have an expectation and a right to have their case fully presented. At the conclusion of the arbitration, both plaintiffs and defendants must believe they have had an opportunity to be heard and to have their cases fairly presented. They must be assured that offering important testimony through reports, or through deposition transcripts, has not reduced the effectiveness of the presentation, and the arbitration process has worked to the advantage of all. It is incumbent upon both the arbitrator and counsel to ensure these expectations are met.

Joseph F. Ricchiuti, a member of this newsletter's Board of Editors and a founding member of Young Ricchiuti Caldwell & Heller, represents plaintiffs in civil litigation with an emphasis on products liability, medical malpractice and insurance bad faith. In addition to his trial practice, he is frequently selected as a mediator and arbitrator in many types of complex personal injury litigation. He can be contacted at [email protected] or 267-546-1002. This article also appeared in The Legal Intelligencer, an ALM sister publication of this newsletter.

We continue this month with our discussion of tips for attorneys presenting medical malpractice cases in alternative dispute forums.

Revealing Evidence Early On

Counsel frequently worry that revealing too much at mediation will prejudice them, should the case proceed to trial. They hedge their bets by not revealing evidence they believe will substantially affect their case. However, disclosing this kind of evidence can help the mediator move the parties toward settlement.

For example, the defendant may be reluctant to share surveillance videos that undermine the plaintiff's deposition testimony, or may want to “save” the videos until a pre-trial conference or for use during cross-examination. The mediator may be able use the video to help the parties re-evaluate their positions by showing its limited significance to the defense or by showing the plaintiff that she needs to soften her position. Often, the video is not as devastating as the defense perceives. Conversely, sometimes the plaintiff needs to know he will be forced to explain the video to a judge and jury. A mediator can effectively do what opposing counsel could never do.

Because mediations often occur close to trial, trial depositions of experts frequently have been taken. Providing portions of the testimony and emphasizing the significance of direct or cross-examination may help either side re-evaluate its position. Merely explaining to the plaintiff or the insurance representative that the deposition went well or badly does not convey the impact of actually seeing or hearing it. An experienced mediator can use this testimony to assist either side in re-evaluating its case.

Other significant evidence presented at mediation may help the mediator to convince the parties to re-evaluate their positions. For example, in a case involving the death of a jogger hit by a truck, plaintiff presented an animation of the accident. It was extremely effective in explaining plaintiff's version of the accident. Because the defense decision makers were present and could evaluate the animation's effectiveness, they were able to reconsider their position. In that same mediation, the plaintiff played a video of the decedent giving a talk to a group of his students, which allowed defendants to re-evaluate damages issues. This presentation permitted decision-makers to understand what was going to happen at trial, and adjust positions accordingly.

Counsel are increasingly sophisticated and knowledgeable about the mediation process. The imagination and skill counsel bring to these proceedings continue to increase. Counsel need to focus on those aspects of the case that will help the mediator do her job.

Arbitration

Binding arbitration has become a frequent method for resolving serious, complex personal injury and malpractice cases. The parties determine and control the process. The arbitrator is selected by agreement. Scheduling, evidence to be submitted uncontested, witnesses who will testify, and the presentation of expert testimony by deposition, live testimony or reports are all in the control of the parties. They can establish high/low damage parameters, confidentiality and matters important to them.

The savings in time benefit both sides and are especially appealing to physician defendants. Counsel can more easily accommodate parties and witnesses who have to travel considerable distances, or whose job requirements preclude their attending trial.

Complex personal injury and professional malpractice cases have become extremely expensive to try. It is not unusual for each side to have at least two experts on liability, and several on damage issues. Usually, the parties have exchanged expert reports before arbitration. Often, agreements are reached providing expert testimony will be by reports. Before agreeing, however, counsel must consider the consequences.

Counsel must carefully consider whether reports are adequate to stand alone as an expert's complete testimony. At trial, experts usually expand on their reports, explaining terms and procedures in greater detail, and expanding upon the reasons for their conclusions. Counsel must determine if supplementation is necessary to fully articulate their case in chief.

Both sides should consider submitting additional reports to dispute conclusions reached by opposing experts or to expound in detail on why opposing experts are incorrect. Supplemental reports may reference important literature or standards which either side had anticipated using on direct or cross examination. If the reports only provide a summary of the expert's opinion, the arbitrator may be left without sufficient information to evaluate the full extent of the expert's testimony. Despite the expense, counsel should consider the need for one or more experts to be presented live.

This is also true for damage experts, who are often presented solely via written report. There is often a wide divergence on the various damage issues, and the expert's testimony, rather than just a report, may be more convincing to the arbitrator. In such a case, the cost of presenting the expert may be more than justified by a substantially higher ' or lower ' award.

Finally, both the arbitrator and counsel must keep in mind that the parties have an expectation and a right to have their case fully presented. At the conclusion of the arbitration, both plaintiffs and defendants must believe they have had an opportunity to be heard and to have their cases fairly presented. They must be assured that offering important testimony through reports, or through deposition transcripts, has not reduced the effectiveness of the presentation, and the arbitration process has worked to the advantage of all. It is incumbent upon both the arbitrator and counsel to ensure these expectations are met.

Joseph F. Ricchiuti, a member of this newsletter's Board of Editors and a founding member of Young Ricchiuti Caldwell & Heller, represents plaintiffs in civil litigation with an emphasis on products liability, medical malpractice and insurance bad faith. In addition to his trial practice, he is frequently selected as a mediator and arbitrator in many types of complex personal injury litigation. He can be contacted at [email protected] or 267-546-1002. This article also appeared in The Legal Intelligencer, an ALM sister publication of this newsletter.