In the next week or so, I will be posting the three day bench trial transcript of a recent slip and fall trial I had. It should be on my website. This is a slip and fall case which occurred at a TSA checkpoint at PHL resulting in my client fracturing her knee and requiring surgery. Since both TSA and the City of Philadelphia are public entities and the trial is a public event, the transcript is readily available and for public consumption. We still have to wait for the judge’s decision on the case. But, if you want to see an entire trial from start to finish with openings, closings, experts etc. it is there for your review. Fillmore v. United States.
As litigating lawyers, we all have highlights and lowlights of our trial and deposition work. One of my recent favorites came following a discussion with a more senior lawyer. The defense expert in the above case asserted that my client whose knee is filled with surgical hardware, has a long scar on the outside of her knee, and will have permanent trouble walking up stairs had reached “maximum medical improvement (MMI).” Now, for the non-lawyers, this sounds like the client is doing grrrrrrrrreat! I had not encountered this situation in an actual trial where a defense expert was saying these words because MMI, as a term of art is usually reserved for workers compensation cases and I do not do that. So, the following cross examination developed:
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Do I try to negotiate cases to keep friends with opposing counsel?
Posted on December 13, 2023 in Case Matters
That was a recent question from a client who questioned my valuation of her case. In fact, the opposite is true. On both sides of our cases, it is important that the opposing counsel recognizes that you know what you are doing and are able to pursue a case diligently to the end. We may not love the person on the other side, but I usually have very productive second or third cases with opposing lawyers once I have gone to settlement or trial against them. Being nice to opposing counsel does not change the valuation of the case. The case is the case. It may be nice if you like the other lawyer or respect them but it does not change the case value.
When both sides respect their opponent, then at least there is usually agreement on what the case is worth and what it could settle for. Then, the only trouble is the respective clients and their valuations.
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The Paper Ceiling Ads and Failure to Diagnose Malpractice
Posted on December 13, 2023 in Case Matters
Have you seen these ads trying to build public support for the idea that college degrees are not the only important credential. Regardless what the paper ceiling ads try to tell you or your local tradesperson says, completing college makes an enormous difference in your lifetime income in America. If lifetime income is not your focus, then I appreciate the paper ceiling ads attempt to make the college degree less of the be all and end all of credentials. However, college degrees like a lot of things in life build your credibility as an employee and allow for faster growth over time.
There are a lot of people for whom trades are going to be a great way for success over time, but it is currently not a way to grow one’s long term income prospects. People will complain endlessly about how hard it is to find a plumber, but you still see 50 different plumbing company trucks driving around. Why? Because the barrier to entry is fairly low. No college degree required. High school and solid on the job training as an apprentice. Since the barrier to entry is low, there is a lot of competition and not a lot of growth potential. I may be screwing up economics, but that is how I see it.
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MORE EFFICIENT LAWYERING: THE PRACTICE OF LAW POST-PANDEMIC
Posted on December 05, 2023 in Case Matters
The pandemic wrought a lot of changes in the practice of law just like any other business that was affected in a significant way. Interestingly, the nature of litigators is to be averse to changes in how the court system functions. The pandemic familiarized everyone with zoom and it inadvertently made us a more efficient system. For example, I have not taken an in-person deposition since pandemic began. That is a big change. It has saved umpteen hours traveling around to defense counsel’s offices, saved tons of hours of witnesses or court reporters or lawyers being late and saved tons in parking expenses. In court, we now do conferences on everything except settlement and pretrial by zoom in Philadelphia. This saves probably 8 hours per case and $100 in client costs. I would have thought that this would hurt the defense bar because they would bill hourly for travel to conferences and discovery hearings and no longer could do that. When I discussed this during trial with my opponent’s counsel, he said actually, they found that they were more efficient as they knew where their young associates were physically, knew that they were working, and were getting paid more because they were not billing at the lower travel rate and were instead doing actual work. So, this change to “zoom court” has helped both sides it seems and reduced costs for the insurers in legal fees. That will surely not trickle down to your insurance rates but that is another story.
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CSI Type Stuff
Posted on December 05, 2023 in Uncategorized
Jurors always expect every case to have a CSI level of investigatory work on it and it is nearly impossible to measure up to TV, which is of course, Fiction People! It is very, very, time-consuming and unrewarding to try to get text messages from defendant’s phones or to show that someone was texting and driving before a crash. Usually, texting and driving crashes are severe and it does not usually matter why the defendant crashed into you. It matters to you or the client A LOT. It does not really matter to the lawyer. We know the defendant was texting. There is no other way to explain the crash. However, prying text messages out of a person’s personal Verizon account or worse a smaller carrier is really really tough.
I have a new case I am working on where there is a criminal aspect to the case. The phone in question was properly seized and it has now taken a whole year for the text messages to be downloaded in Harrisburg by the state police. A year is forever. And that is with criminal charges at issue. Civil inquiries work on a much slower track.
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MEDICAL MALPRACTICE / NEW YORK TIMES ARTICLE ON DOCTORS UNIONIZING
Posted on December 05, 2023 in Insurance
Unfortunately, there is a lot of medical malpractice in our health care system. Usually, it is not the fault of individual practitioners but the fault of the system dropping the ball during handoffs of the patient from one service to another. For sure, there are bad surgeons and poorly trained ER docs, and mistakes made. But, most often, in the handoff of a patient from doctor to nurse to different hospital floor to different service results in key information being missed or lost. There is a New York Times article detailing that doctors have turned to labor unions to try to fight off their ever increasing workload. A higher physician workload has repeatedly been shown to result in poorer health outcomes for patients. It’s really not in dispute. These studies follow on studies showing that less sleep for doctors also results in poorer outcomes.
Now what has triggered the turn to union organizing is that healthcare institutions have sought to increase efficiency at the cost of the doctors’ workloads. For years the institutions tried physician extenders like PA’s and NP’s, which I suggest you avoid. Then, when that did not help enough, the institutions piled more work on the doctors. Then, during pandemic, a lot of docs simply retired or moved out of clinical care. Those who are left are getting crushed with the volume. Your average radiologist is asked to ready nearly 30% more films now compared to a decade ago. Your average primary care doc is seeing 30 patients a day. It is getting to be too much. The inevitable outcome is poorer care.
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Writing a Book
Posted on December 01, 2023 in Best of
Due to many of you telling me that you like my writing, I am writing a novel with a lawyer med-mal focus. I will keep you updated on progress. Thanks for the encouragement.
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