1 PRESENTATION OF INJURY CLAIMS John D. Malanga MALANGA LAW FIRM 3116 West 5th Street Suite 212 Fort Worth, Texas Telephone: Fax:
2 PRESENTATION OF INJURY CLAIMS A. At Deposition of Injured Parties 1. Preparing the Witness to Testify 2. Technical Issues 3. At the Deposition 4. After the Deposition B. At Deposition of Doctors 1. Preparing the Doctor 2. At the Deposition C. At Mediation 1. Preparing for Mediation 2. Opening Session 3. Tools to Use at Mediation to Present Injuries D. At Trial 1. Proving Physical Pain 2. Proving Mental Anguish 3. Proving Disfigurement 4. Proving Impairment 5. Proving Medical Expenses
3 PRESENTATION OF INJURY CLAIMS A. At Deposition of Injured Parties 1. Preparing the Witness to Testify The most important aspect of presenting an injured party s deposition involves proper preparation of the witness before testifying. It is important to take a sufficient amount of time to prepare the witness so that the injuries are fully detailed during the deposition. The benefits of proper presentation involve increasing the settlement value of the Plaintiff s case as well as properly preparing the Plaintiff to testify at trial. Proper presentation begins with preparing a checklist of each and every type of damage claimed by the Plaintiff in the lawsuit. This checklist will be used both when preparing the witness to testify and for use at the deposition of the case. The checklist should mirror the Plaintiff s claimed damages as alleged in the Plaintiff s petition. A sample checklist for a personal injury Plaintiff would look as follows: 1. Medical expenses past; 2. Medical expenses future; 3. Physical pain past; 4. Physical pain future; 5. Past impairment; 6. Future impairment; 7. Past disfigurement; 8. Future disfigurement; 9. Past mental anguish; and 10. Future mental anguish.
4 Once you have prepared the checklist of injuries to be for the Plaintiff, the next step is to review each and every listing on the checklist with the Plaintiff. When preparing for the deposition, ask the Plaintiff to elaborate on each and every item contained in your checklist. Take notes as you review each item on the checklist. You can use the notes when listening to the Plaintiff s testimony, making sure that each area that was discussed during pretrial preparation comes out in deposition. The notes can also serve to provide you with follow-up questions in the event the Plaintiff does not testify about a particular area while being questioned by opposing counsel. The next part of preparation is to discuss with the Plaintiff each and every aspect of the Plaintiff s medical history. Especially any pre-existing conditions and/or injuries that are related to the injuries claimed in your lawsuit. Be sure and clarify with the Plaintiff the dates of treatment, the injuries claimed, and the length of time since the last treatment for any pre-existing conditions. Stress to the Plaintiff that it is much more important that he or she be open and honest about pre-existing conditions because the failure to disclose or providing false information regarding pre-existing conditions is much more damaging to the Plaintiff s case than the pre-existing condition itself. In addition to the foregoing, it is also important to prepare the Plaintiff for depositions in general with all of the standard instructions given to witnesses about listening to the question, answering with a verbal response, etc. It is also important to prepare the witness for questions regarding other aspects of his deposition, such as the incident that forms the basis of the lawsuit. Lastly, it is always helpful for a witness if you can give the witness potential questions and/or areas of inquiry that you know will be asked during the deposition because it gives the witness a feeling of security knowing that he has reviewed those areas before the deposition.
5 2. Technical Issues In most cases the defense attorney, who provides the court reporter, requests the deposition of the injured Plaintiff. The Plaintiff s attorney has the option of obtaining a copy of the deposition transcript from the court reporter. Obtaining a copy of the Plaintiff s deposition transcript is necessary in order to properly prepare for trial of the case. In addition, the Plaintiff s attorney will have the option of having a videographer present at the deposition. If you have reason to believe that the Plaintiff will not be able to testify in person at the trial of the case, then it is a good idea to have a videographer present so that the Plaintiff s video deposition can be presented to the jury if necessary. 3. At the Deposition of the Injured Party Because the deposition of the injured party will be noticed by the opposing counsel, the questioning will begin by the defense attorney. When listening to the questioning by the opposing counsel, please do not read the newspaper or look at other files as I have seen Plaintiffs attorneys do over the years. Instead, have the checklist that you made out and available as you are listening to your client testify. As your client testifies about each of the injuries claimed, check them off your checklist. Make sure everything that your client told you in the deposition preparation is covered. If not, cover those matters when it is your turn to question the witness. What happens if the Plaintiff becomes emotional during the deposition? If emotion happens naturally, then it is fine and let it happen. What is not good is when emotions are forced and contrived as an attempt to influence the other side. I have seen many very serious cases where the injured party showed no emotion and I have seen very minor cases where there was a
6 significant amount of emotion. By itself, emotion does not replace the facts of a case, but is a part of life and is sometimes a part of a lawsuit. 4. After the Deposition After the deposition is completed, please make sure your client carefully reviews the deposition transcript in order to make any changes or corrections. Make sure the changes and corrections are done timely in accordance with the rules of procedure or the time limit as agreed to by the parties. If a video deposition was taken, make sure you obtain the DVD of the video as quickly as possible. After obtaining the deposition transcript and the DVD, then at that time I recommend that counsel prepare an edited version of the deposition testimony by selecting deposition excerpts from the transcript and asking the videographer to prepare an edited version of the DVD for my use. I recommend preparing the edited version of the DVD for two reasons. First, for use at a presentation at mediation or as part of settlement package to present to the insurance company. Second, for use at the trial of the case in the event that the injured Plaintiff is unable to testify live at the trial. Make sure and provide opposing counsel with a copy of the edited version of the DVD along with the excerpts selected to comply with the discovery rules. B. At Deposition of Doctors 1. Preparing The Doctor It is not always necessary to take a doctor's deposition when preparing for trial, but in some cases it is a sound strategy. You must balance the cost of taking the doctor's deposition with the potential benefit of an increased recovery. Expect to spend at from $2, to $4, to take a doctor's deposition, considering the cost of the doctor's time, court reporter,
7 and videographer. A videographer is almost always used in a doctor's deposition so that the doctor s testimony can be played at trial of the case if necessary. Before the deposition, it is critical to schedule a meeting with the doctor before he or she testifies. The purpose of the meeting is to review the Plaintiff's case history with the doctor and to prepare the doctor for potential cross-examination areas. When meeting with the doctor he should have the Plaintiff's complete medical file in front of him. He should have also at some time reviewed the Plaintiff s file before meeting with you. It is also important to collect the Plaintiff's records from other treating physicians and be sure to have those available to the doctor for review prior to his deposition, because the Plaintiff's attorney will certainly have access to those records and will use them for purposes of cross-examination. After reviewing the Plaintiff's treatment with the doctor, it is important to go over the "magic language" questions with the doctor to find out if he is comfortable answering those questions affirmatively. The "magic language" questions involve his opinion, within a reasonable medical probability, that the Plaintiff's alleged injuries were caused by the occurrence in question. Additionally, the doctor s opinion that the Plaintiff's treatment was medically necessary and that the medical expenses incurred by the Plaintiff was reasonable and customary. If you do not get the "magic language" questions answered in the record, you will face a sufficiency of the evidence challenge from the defense counsel. Proper presentation of the doctor also involves reviewing potential areas of crossexamination in the lawsuit by defense counsel. If the Plaintiff has had pre-existing injuries, it is important to go over those with the doctor and ask the doctor if the incident in question constituted an aggravation of those pre-existing injuries. If there are conflicting medical records
8 prepared by another treating doctor, be sure to show those records to your doctor and ask him or her to clarify any discrepancies. 2. At the Deposition The first thing to do when beginning the questioning of the doctor is to establish his credentials and qualifications to testify as an expert witness. After that you should begin by questioning the doctor regarding his treatment of the Plaintiff from the first visit. In particular, it is important that you get the doctor to testify about the patient history received from the Plaintiff. It is important that the patient history provided by the Plaintiff generally track the facts of the occurrence that forms the basis of the lawsuit. Any discrepancies in that regard needs to be clarified. While going through the Plaintiff's course of treatment, it is generally a very good idea to utilize models or charts for the doctor to visually explain the Plaintiff's alleged injuries. Many times the doctors have such models or charts or skeletons in their office and it is useful to ask the doctor to provide such models. Make sure that the models or charts appear on the video presentation of the doctor's testimony. Two other things that are necessary in any doctor's deposition involve the "magic language" questions and proving the medical expenses. As previously mentioned, it is critical to make sure the doctor answers the "magic language" questions affirmatively during his testimony. In addition, the doctor is usually qualified to testify regarding the Plaintiff's reasonable and necessary medical expenses. Not only for the treatment given by his office, but it is possible to use the doctor to prove up the medical expenses for the Plaintiff's other health care providers as well. Lastly, be sure and have the doctor testify about his meeting with you before the
9 deposition and a general review of what you discussed, as well as his fee arrangement, so that it does not come out for the first time on cross-examination. Listen carefully to the cross-examination done by opposing counsel. If there are any points made by the defense counsel during the cross-examination, it is usually a good idea to take the doctor back on redirect examination to clarify the points that were made by the defense counsel. With regard to deposition signature, most every doctor waives the right to read and review the deposition transcript, so make sure that is in the record. 3. After the Deposition After the doctor's deposition is completed, and you obtain the deposition transcript and the DVD of the videographer, it is time to prepare the edited version of the doctor's testimony. I believe it is a mistake to play the doctor's deposition unedited at the trial of the case because it usually takes too long and tends to bore the jury. The much better practice is to go through the doctor's deposition select only those excerpts that convey the most important points and only play those for the trial. The defense counsel has the right to play the remainder of the deposition if he or she chooses to do so. If you can take a two hour deposition and edit it down to thirty minutes, it will provide a much more powerful impact to the jury. Once the excerpted deposition is completed, don't forget to provide opposing counsel with a copy of the edited deposition for discovery purposes. C. At Mediation 1. Preparing for Mediation In addition to the usual preparation for mediation, I will now highlight certain additional areas of preparation as it relates to the Presentation of Injury Claims. One area involves the
10 preparation of an opening demand as well as determining where your "bottom line" end point will be. One way to present a justifiable opening demand is to break it down into the various elements of damages you are seeking in the lawsuit. Thus, you would have a figure for each element of damages you are seeking in the lawsuit, and then simply add up the amounts for each element to come up with the opening demand. It is likely that the defense will simply counter with a global counteroffer. Nevertheless, as the offers are exchanged in the mediation, you will be in a position to adjust specific elements of damages and thus have a justifiable basis for each subsequent move. If you intend to display video excerpts or other multimedia presentations, please be sure to bring a laptop/projector to the mediation. Do not assume that the mediator's office has the requisite AV equipment in house. Sometimes the presentation is only for the mediator's benefit as you have already provided the materials to the opposing party. Nevertheless, such presentations can be very helpful in educating the mediator about the injuries in his case. 2. Opening Session The opening session can be a useful opportunity to present a Plaintiff's injuries to the other side. Although the Plaintiff's deposition has probably been taken by the time of the deposition, it is often the case that the adjuster or other decision maker for the defense has never met the Plaintiff in person. Sometimes it is an excellent idea to let the Plaintiff talk about his or her injuries at the opening session in order to allow the adjuster to assess the credibility of the Plaintiff. If the Plaintiff makes a good witness, you can demonstrate this fact to the other side at the opening statement and thus increase the strength of your negotiating position. The opening session is also a time where you might consider presenting short video presentations of certain
11 aspects of the Plaintiff's injuries. For example, a short PowerPoint presentation of such things as deposition excerpts or medical records can be helpful, if not overdone. 3. Tools To Use at Mediation To Present Injuries a. Deposition Excerpts Deposition excerpts can be a very useful way to present injuries. For example, a short excerpt from a doctor's deposition that highlights his "magic language opinion or showing the doctor visually describe the Plaintiff's injuries using a model can be beneficial. Also, short excerpts from the Plaintiff's deposition that highlight his or her injuries can also be persuasive. b. Photographs Don't forget the value of powerful photographs in presenting injuries. Scene photographs showing significant damages at the accident scene are very helpful and make a big impact in a case. If there are photographs of the Plaintiff showing scarring or being in a full body cast do have an impact. A presentation at a mediation of just a few of these photographs will be sufficient to do the job. c. Medical Records Selecting important medical records and presenting them at the mediation can also play a beneficial role. If there are records showing the need for future surgery or the cost of that surgery are good possibilities. Once again, brevity is important and you must be cognizant to not to overdue the presentation because it may induce a backlash from the opposing side. d. Day-In-The-Life Video If the case warrants it, sometimes it is a good idea to invest in a day-in-the-life video. A day-in-the-life video is just what it sounds like. It is a video of the Plaintiff going through his or her daily activities. The point of the video is to show the Plaintiff s limitations in his or her daily
12 activities as a result of his or her injuries. This video does not have to be particularly long highly produced. It is sufficient to simply show the Plaintiff attempting to do simple daily activities such as getting out of bed, attempting to ambulate, or getting in and out of a vehicle. An effective way to enhance the video is to have the Plaintiff conduct a narration of what his or her life is like over the video, which adds an additional impact. D. At Trial The final opportunity to present a Plaintiff's injuries is at the trial of the case. The Presentation of Injury Claims must be reconciled with the elements of damages sought in the case. In other words, the jury charge will not have a line for "back injuries" but rather elements of damage such as physical pain, mental anguish, etc. Therefore, when presenting injuries, it must be done with an eye towards satisfying proof requirements for every element of damage sought in the lawsuit. I will now summarize the proof requirements for several common areas of recovery in injury cases: pain, mental anguish, disfigurement, impairment, and medical expenses. 1. Proving Physical Pain To prove physical pain, a Plaintiff may testify about physical pain. Even without direct testimony, a jury may infer that pain occurred from the nature and seriousness of the Plaintiff's injury. City of Tyler v. Likes, 962 S.W.2d 489 (Tex. 1997). The injured person may only be compensated for physical pain that he was conscious of. Russell v. Ramirez, 949 S.W.2d 480 (Tex.App. Houston [14th] 1997, no writ). To prove future physical pain, the Plaintiff's evidence must demonstrate that there is a reasonable probability the Plaintiff's injury will continue to cause pain in the future. Evidence of the mere possibility of future pain is insufficient. Hicks v. Ricardo, 834 S.W.2d 580 (Tex.App. Houston [1st] 1992, no writ). Texas law assumes that physical pain will result from a serious
13 injury. When presenting evidence of physical pain, be sure and present evidence under both elements of past physical pain and future physical pain. 2. Proving Mental Anguish In most cases, a Plaintiff must prove some physical injury before recovering mental anguish damages. Temple Inland Forest Products v. Carter, 993 S.W.2d 88 (Tex. 1999). Even when there is no physical injury, a Plaintiff may recover mental anguish damages if the following requirements are met: 1) Direct evidence of the nature, duration, and severity of the mental anguish showing how it disrupted the Plaintiff's daily routine; or 2) Other evidence of a high degree of mental pain and distress that is more than mere worry, anxiety, vexation, embarrassment, or anger. Parkway Company v. Woodruff, 901 S.W.2d 434 (Tex. 1995). As with physical pain, mental anguish may be inferred by a jury when a Plaintiff sustains a serious bodily injury. Proof of mental anguish damages can be established through the testimony of the Plaintiff, third parties, or experts. El-Khoury v. Kheir, 241 S.W.3d 82 (Tex.App. Houston [1st] 2007, pet. denied). To recover damages for future mental anguish, the Plaintiff must show that there is a reasonable probability that mental anguish will be suffered in the future. Future mental anguish may be proved through the testimony of a Plaintiff or through the testimony of an expert.
14 3. Proving Disfigurement Under Texas law, the term "disfigurement" is defined as: that which impairs or injures the beauty, symmetry, or appearance of a person or thing, or that which renders unsightly, misshapen, imperfect or deformed in some manner." Goldman v. Torres, 341 S.W.2d 154 (Tex. 1960). Common forms of disfigurement include scars, burns, and amputations. Under Texas law, disfigurement is recognized as a separate element of recovery from pain and suffering, mental anguish, and loss of earning capacity. To prove disfigurement, a Plaintiff may show the jury the disfigured part of the body or present photographs of the disfigured part. Disfigurement may also be proven through the testimony of experts discussing the disfigurement. The amount of damages for disfigurement is measured from the date of the disfigurement until the time the disfigurement is expected to end, even if in the future. Sun Bridge Healthcare Corp v. Penny, 160 S.W.3d 230 (Tex. App. Texarkana 2005, no pet.). 4. Proving Impairment Physical impairment is defined simply as the "loss of enjoyment of life." It encompasses the inability to participate in sports, hobbies, or other recreational activities. It is considered a separate element of damages in an injury lawsuit. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757 (Tex. 2003). To prove physical impairment, the Plaintiff must produce some evidence showing the tasks or activities that he can no longer perform. Estrada v. Dillon, 44 S.W.3d 558 (Tex. 2001). The plaintiff does not have to prove egregious injuries to obtain a recovery for physical impairment. Rosenboom Machine and Tool, Inc. v. Machala, 995 S.W.2d 817 (Tex.App. Houston [1st] 1999, pet. denied).
15 5. Proving Medical Expenses In order to recover past medical expenses, Plaintiff must prove two things: 1) That the expenses were necessary to treat the injuries and were reasonable in amount; and 2) That the expenses were paid or incurred by or on behalf of the Plaintiff. The Plaintiff can prove that her past medical expenses were reasonable and necessary either by expert testimony or with an affidavit of past expenses. Ibrahim v. Young, 253 S.W.3d 790 (Tex.App. at Eastland 2008, pet. denied). Section of the Texas Civil Practice and Remedies Code. In order to recover future medical expenses, a Plaintiff must show that there is a reasonable probability that expenses resulting from the injuries will be necessary in the future. Expert testimony is needed to establish that medical expenses will be necessary in the future. The amount of future medical expenses is within the discretion of the jury and the Plaintiff does not need to provide expert testimony regarding the amount of future medical expenses. Blankenship v. Mirick, 984 S.W.2d 771 (Tex.App. Waco 1999, pet denied).