New beginnings for MATA and Massachusetts

Transcription

1 February 2015 Vol. 8, No. 1 New beginnings for MATA and Massachusetts By Charlotte E. Glinka New political leaders, new Court administrations, new MATA members and new laws as MATA president, I see 2015 as a year filled with great anticipation for Massachusetts. This year we meet a new cast of talented people taking over the reins of government in the Commonwealth. We welcome Gov. Charlie Baker, Attorney General Maura T. Healey, Treasurer Deb Goldberg, and Sen. President Stanley Rosenberg. We also salute the new members of the Legislature and our newest U.S. representative, Seth Moulton. And we welcome our new court leadership: SJC Chief Justice Ralph D. Gants and Superior Court Chief Justice Judith Fabricant. Of course, the advent of new leadership in Massachusetts does not diminish how much we appreciate the public servants who have and continue to serve. Within the MATA family, we are pleased to welcome new members into the organization throughout the year. If you are new to MATA, we hope that you will find it to be the welcoming, practical and supportive organization that I know it to be. If you are a trial lawyer and have not joined MATA, you don t know what you are missing. In these days of online life, practicing law can be more and more isolating. Whether you are a solo practitioner or have an office full of co-workers, participation in a collegial bar association like MATA can be a perfect remedy for a dreary New England winter. You can stop by a MATA function, get some guidance on one of our listserves, connect with a mentor or look in on another member s trial through our Trial Watch program. There are so many ways to be part of a larger legal community. Finally (in every sense of the word), we have a new Trial Court law, and with it, the promise of a more engaged and informed set of jurors. On Dec. 5, 2014, the Supe- PRESIDENT S MESSAGE Continued on page 5 istock.com Amicus Committee update By Thomas R. Murphy The last case that the Amicus Committee briefed in 2014 was Reckis v. Johnson & Johnson, et al. (SJC11677). Pharmaceutical drug manufacturers had appealed a record verdict $50 million for an injured child and $6.5 million for the consortium claims of each parent in a failure-to-warn case tried to a Plymouth County jury. There were three questions under review: whether the claims were preempted under federal law; whether the Continued on page 9 The rule against the Golden Rule By Jonathan A. Karon I originally conceived this issue s Editor s Note as a list of legal rules and judicial practices that got in the way of justice in tort cases. But as I worked through it, one doctrine stood out as particularly stupid: the prohibition on making Golden Rule arguments in civil cases. To prohibit such arguments is absurd and unjust. What are Golden Rule arguments? Interestingly, I couldn t find a single published state court case applying the doctrine in a civil context. In what appears to be the leading case from the 1st Circuit, it is described as suggesting to the jury that it put itself in the shoes of a plaintiff to determine damages. Forrestal v. Magendantz, 848 F.2d 303, 309 (1st Cir. 1988). That opinion asserts that [t]his so-called Golden Rule argument has been universally condemned because it encourages the jury to depart from neutrality and decide the case on the basis of personal interest and bias rather than on the evidence. Id. I don t disagree that courts have widely accepted this premise, but with all due respect to the authors of those opinions, the rationale is ridiculous. The usual jury instructions essentially direct that the jury award the plaintiff what it finds to be full and fair compensation for their pain and suffering, both physical pain and mental anguish, sustained in the past and to be endured in the future. The poor jurors don t really get much more guidance than that in the charge. How can pain and suffering be reasonably valued without putting oneself in the shoes of the plaintiff? If we reject Golden Rule arguments aren t we really saying, Ladies and gentlemen of the jury, without considering what it felt like to the plaintiff when the drill press crushed his hand, you are to award full compensation for the pain which he experienced. Moreover, you may award an amount to compensate the plaintiff for the loss of his hand but you may not consider what it would be like to go EDITOR S NOTE Continued on page 8 A Supplement to Massachusetts Lawyers Weekly

2 2 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS February 2015 Tips from the masters: Stop, look, listen & cross By Michael E. Mone When you were very young, your mother explained to you that you should not cross a street before you stopped, listened and looked. In a slightly different order, that warning applies to a cross-examination of an expert in a personal injury case. A recent example reminded me of the wisdom of that age-old warning. I was trying a case in which my client was having gastric banding surgery for weight loss. During the surgery at a major Boston teaching hospital, he sustained a large tear of his thoracic aorta. As laparoscopic gastric banding surgery is done in the abdominal cavity, it was hard for me to understand how an expert could testify that there was no violation of the standard of care when a grasper being used in the surgery was inserted into the thoracic cavity and tore a hole through half of the aorta, which resulted in immediate uncontrolled hemorrhage. But the defendants did have an expert who, according to the disclosure, was prepared to defend on the basis that laceration of a blood vessel in laparoscopic surgery is a known complication and that the surgeon, who was passing the grasper in a blind fashion behind the very upper end of the stomach, would not have realized that he had come in contact with the very muscular thoracic aorta or something else that shouldn t be there; thus, he would not have known that he was pushing the grasper which, incidentally, is not a sharp instrument through the aorta, causing the tear. Look. We all know that it is unlikely that an expert is going to change his opinion no matter how good your cross-exam seems; thus, you have to look, or in other words, prepare by thoroughly understanding and investigating both the opinion and the expert testifying, so that you can chip away at the opinion. First of all, I have found that unless the expert is a professional witness and spends more time testifying than in clinical practice, the how much are you being paid questions have limited value. There is, however, value in preparing to establish that the expert testifies on only one side of medical malpractice cases and is closely tied to the insurer that is at risk. In the bariatric surgery case, the expert was one of the leading bariatric surgeons in Boston. However, although he was at a different Harvard Hospital than the defendant in my case, he had some interesting facts disclosed in his curriculum vitae where, in addition to his medical articles, he listed a series of symposiums in which he participated for Risk Management Foundation, the insurer-like organization of the Harvard self-insurance program. Under cross, he admitted that he was participating for compensation in a whole series of seminars devoted to the defense of medical malpractice claims. His curriculum vitae also disclosed another interesting fact: He was a member of a sub-committee of the Betsy Lehman Institute, devoted to examining, evaluating and preventing complications in bariatric surgery. So they were on the same small committee that was looking at complications at the very time the injury occurred in my client s case. The defendant was on the committee with him. We searched every medical journal, textbook and case study on bariatric surgery to determine if there had been other reports of laceration of the thoracic aorta during laparoscopic banding surgery. There was not a single case worldwide of an aorta, let alone a thoracic aorta, ever having been lacerated during such a procedure. There was one Australian case in which there was a laceration to the abdominal aorta during the placement of one of the trocar ports, which was totally unrelated to the type of injury that occurred in our case. We did, however, have a report available if the expert had said that there had been a similar case. Listen. Too often, we are so well-prepared for the expert s testimony and armed with the disclosures and research that we fail to actually listen to his testimony. In my experience, actual testimony is never as good or as bad as the disclosure that either side has made. You must focus like a laser on listening to the words actually being said as opposed to what was disclosed. One of our claims was that any doctor pushing an instrument through flimsy tissue behind the upper end of the stomach would know by feel if he encountered something as strong and muscular as the thoracic aorta and would immediately stop. Part of the disclosed defense was that my client s aorta was fragile and the surgeon therefore would have had no such warning. We were well-pre- Continued on page 8 Voir dire how do you say that? NEVER AGAIN WILL A LAWYER HAVE TO SAY THERE WAS NOWHERE TO TURN. LCL clinicians help lawyers, judges and law students with personal and professional issues, including stress, anxiety, depression and substance abuse. If you, or someone you know, need LCL s help, call LCL-0210, for a FREE and CONFIDENTIAL appointment. Don t wait! CALL NOW! Find out more at or by ing @lclma.org. Free Confidential By Thomas R. Murphy A few years ago, card-carrying MATA members Marc L. Breakstone and David W. White reminded the bar that according to a report from the National Center for State Courts and the State of Justice Institute, ours was only one of 10 states in which voir dire is conducted predominantly from the bench. Previously, there was little or no involvement from trial counsel. If for no other reason than that our Constitution states that trial by jury is a method of procedure [which] shall be held sacred, that was a pretty sad statistic. Fortunately, with the right set of facts to say nothing of the right number of votes the law changes, this time with legislation. With the governor having signed Chapter 254 of the Acts of 2014 on Aug. 6, the path to attorney-conducted voir dire is now open, though no doubt down the road there will be cases interpreting the statue. To ask for it in the pleadings is easy enough, but when we re on our feet we should pronounce it properly, right? After all, it was U.S. Supreme Court Justice Antonin G. Scalia who told the Texas State Bar in 2009 that during oral arguments lawyers should avoid words they can t pronounce, intimating that otherwise he was inclined to think this person is not the sharpest pencil in the box. Not to worry; truth be told, there is no right way to say this one. As for the Scalia s concern, law professor James J. Duane points out in The Proper Pronunciation of Certiorari that there is such a split on the SCOTUS on how to pronounce it that at least two of them simply say cert. So go figure. So how do we say voir dire? From the French meaning to speak the truth, Black s Law Dictionary (5th ed.) pronounces it vwár dír but practitioners all over the country pronounce it differently. Most of us around here say something like vwaa dear but in New York it rhymes with fois gras and beer and in Dallas it sounds like more wire. The take away: go with your gut and pronounce it as you will, but use it often and use it wisely.

3 February 2015 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS 3 The following article reflects the opinion of the author and does not necessarily reflect the opinion of the Massachusetts Academy of Trial Attorneys. By Alan J. Klevan Understanding Avvo When wearing my law practice-management advisor hat, one of the most frequently asked questions I am faced with is Tell me about Avvo, to which I answer How much time do you have? On the many local and national list servers to which I belong, one of the most hotly debated issues I read about is the virtues, or lack thereof, of Avvo. While I do not have the luxury of devoting this entire issue to Avvo and its many features, I am going to try to explain how it works in a nutshell and why lawyers should, or should not, use Avvo. In assisting me to provide better insight, I had the pleasure of speaking with Leigh McMillan, vice president of marketing for Avvo. As a caveat, I state that while I am ranked as 10.0 superb on Avvo, I do not utilize any of their pay services. I do periodically update my profile and answer questions from time to time. Launched in 2007, Avvo is an online legal marketplace that helps attorneys control their online reputation and provides opportunities for lawyers to connect with potential clients. It gives attorneys a place for clients to write reviews that are based on a five-star system (these reviews are separate from Avvo s own attorney rating system, discussed below). What makes Avvo s client review system different and, in my opinion, better than that of similar sites Continued on page 10 MATA launches comprehensive online guide to civil litigation On Jan. 8, MATA launched a compressive guide to civil litigation in Massachusetts. This online product available exclusively to MATA members is the result of a three-year effort by a dedicated team of MATA volunteers led by Andrew D. Nebenzahl, a member of MATA s Board of Governors and a partner at Smith, Lee, Nebenzahl in Sharon. Nebenzahl recruited senior practitioners to provide commentary for the Guide s nine chapters. The work included drafting, editing and collating more than 150 template documents, including pleadings, motions and assorted discovery documents helpful to all practitioners. MATA President Charlotte E. Glinka said she wanted to thank Andy and his team for putting together such a valuable member benefit. Although this is a significant collection of insight and materials, the beauty of the project is that it is dynamic. A small editorial team will continue to review the materials based on members feedback and update the guide with new submissions on an ongoing basis. The guide will be not only a boon for new lawyers or those transitioning into a plaintiff s personal injury practice, but also a valuable resource for attorneys of all experience levels. Nebenzahl stresses that while it is a resource in a lawyer s toolbox, it should not be considered a substitute for attorneys own legal research, independent duediligence and careful analysis: The purpose of this manual is to provide MATA members with reliable resource materials when screening, pursuing, and resolving a broad range of personal injury cases, Nebenzahl says. Our intent is to provide insight into each phase of a personal injury case, from intake to resolution whether it is by settlement or trial. We hope this manual will enlighten the MATA membership, make the practice more efficient and less burdensome, and enhance the quality of the plaintiffs bar in Massachusetts. MATA members can access the Guide at Massacademy.com. THE EVIDENCE IS OVERWHELMING In a five-week trial where a dozen witnesses are presented solely by video, the most critical person in the courtroom is often your Trial Presentation Technician. That was our trial in Plymouth: most of the testimony came not from the witness stand, but from the desk of Ian McWilliams, right next to counsel table; of the 10,000 pages of exhibits, Ian was the master of projecting, highlighting and annotating on the fly any page that we needed to call up. Ian and his attention to detail, work ethic, and experienced sense for trial strategy -- were a crucial part of our trial team and to the $63 million verdict on behalf of our clients. Bradley M. Henry and Leo V. Boyle, Trial Counsel, Reckis v. Johnson & Johnson, Plymouth Superior Court, Jan. - Feb., 2013 Bradley M. Henry Video Deposition, Trial Presentation, Video Production Leo V. Boyle

4 4 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS February 2015 Getting the most out of videos at trial By Ian A. McWilliams Since the early 1990s, the use of multimedia presentations at trial, particularly video productions, has grown exponentially. Successful litigators have discovered that using visuals with their persuasive words gives them a distinct advantage in presenting their case to a jury. In this article we describe some of the different uses for audiovisual depositions in pretrial mediation and courtroom presentation, share tips on ways to prepare your witness and deposition space for maximum effect, and describe some of the presentation options available in Massachusetts courtrooms. Videotaped depositions Hearing a witness s sworn testimony recited by a stand-in does not allow a jury to effectively interpret whether an answer is belligerent, hesitant or genuine. And displaying the printed word cannot show if a witness is confused, hostile or earnest in a deposition response. So, perhaps not surprisingly, the most common type of video presentation viewed in court is the videotaped deposition, which certainly can communicate much more than a transcript alone. It adds the additional communication of vocal tone, inflection and witness demeanor. Hearing and seeing testimony from a witness can add credibility to a crucial report if an expert looks and sounds competent and trustworthy. It can also go a long way towards impeaching a witness s credibility if that witness appears uncomfortable or contemptuous. As a picture is worth a thousand words, a moving picture can bring words to life. There are many reasons to capture testimony for viewing. Economic reasons include the opportunity to save money by preserving the testimony of a paid expert to be played any time during trial rather than having them wait in the gallery or hallway until they are called. Medical experts oftentimes will not agree to appear in person for less than a full day s fee because of the disruption it may cause to their schedules. Video depositions are a useful tool when dealing with out-of-state or otherwise unavailable witnesses. And by having videotaped testimony available during trial, potentially costly delays can be eliminated and valuable court time can be used to full effect. Videotaped testimony can be a very useful tool even when a witness will appear live before the jury. Video clips from depositions can be used to impeach live testimony when answers differ from what was said under oath during discovery. It is very startling to a jury to see a witness contradict themselves, and much more effective than simply asking them to read aloud their prior testimony. And with modern presentation tools the editing and playing of video clips can be almost instantaneous. With a few clicks of a mouse, transcripts can be searched, testimony highlighted, and video clips created and played to dramatic effect. How does it look? But just showing a moving picture is not enough. How that picture and the elements it contains look can influence an audience to take action, in either a positive or negative way. A poorly produced video can distract the audience from the message and defeat the purpose for showing it. When planning for an audiovisual deposition, much care should be given to the surroundings and to the look and actions of the witness. You need to conduct your examination in an environment free from distractions in a space with enough room to accommodate not only a witness, court reporter and counsel, but also a videographer and all the necessary equipment. The space should have adequate, even lighting so no additional lighting instruments are needed, as they tend to be bulky and give off a tremendous amount of heat. If a room with outside windows is used, then shades over the windows might be necessary to prevent too much sunlight from adding unwanted shadows or hot spots to the picture. A quiet location is a must as microphones will be used to capture the audio and can also capture distracting noises from inside and outside the room. Setting the witness against a blank wall or neutral backdrop will eliminate distractions from the picture. While you may be tempted to use a bookshelf full of law books or artwork as a background, avoid this as the shelves or other objects may look as if they are growing out of the witness ears and distract the jury from the testimony. Eliminate clutter from the table such as water pitchers and glasses or piles of paper as these can also draw attention away from the testimony. You need to check the picture the videographer is shooting to make sure nothing in the frame can distract the viewer from paying attention to the testimony. The most important element of the audiovisual deposition is the audio. That s why it comes first in the name. It is up to your professional legal videographer to produce the finest possible program by using the proper equipment and recording techniques. The only way a professional can make sure the audio is being recorded properly is to monitor the signal, both visually through V/U (volume unit) meters at both the microphone mixer and the camera and by listening to the mix at the recording medium. Do not allow your videographer to use any automatic gain control features, either for picture or audio recording as those features will produce poor quality video productions. A professional videographer with professional tools will have the knowledge and capability to make a first rate, near broadcast quality program. Trust a locally owned and operated court reporting or legal video production firm to get you the best quality product from stenographers and videographers who know your needs.* As for your witness, have them dress in a comfortable and professional manner. Ask them to dress as though they will actually be in the courtroom, keeping in mind that jurors will judge the believability, credibility and likeability of your witness within the first few seconds of seeing them. Avoid loud ties, checks or bold stripes as these fabrics can become distorted on screen. Also, make sure they do not wear noisy jewelry as the microphones will pick up the sound and could actually drown out the words being spoken by the witness. Solid black and white fabrics can play havoc with exposure and contrast in the picture. Pastel shades, particularly light blue, work well and provide for a pleasing color balance. Make sure all cell phones and PDA devices are turned off, not just set to vibrate, as these devices have a tendency to interfere with the audio signal being recorded. As a rule of thumb, if you wouldn t have the device turned on in a courtroom, don t leave it on in the deposition location. As to how a witness should conduct themselves during examination, make sure they act naturally. Exaggerated motions, leaning back or rocking in their chair, or stiff rigid posture can convey to a jury a sense that the person speaking cannot be trusted or has something to hide. A relaxed posture, with feet on the ground and the torso leaning slightly forward, can display earnestness and a sense that the witness is listening intently to the questions and is serious about giving a straightforward, honest answer. Instruct your witness not to look directly at the camera, but at the questioner. Or, if they are being asked to testify about a document, have them look at the paper in front of them. Remind your witness that they must always allow the question to be asked, and allow time for an objection to be lodged before they answer. Just as a court reporter cannot record two voices at once, a video editor cannot cut out an objection when the answer to the question is being stated at the same time. What is the best depo video format? Once the deposition has been taken and you are packing up to leave, your videographer will ask you for your copy order. Just as the court reporter offers different formats for your convenience, so too does the videographer. When I started videotaping depositions there was only one format available, the VHS PRESIDENT Charlotte E. Glinka PRESIDENT- ELECT Annette Gonthier-Kiely TREASURER Michael R. Rezendes SECRETARY Jonathan A. Karon IMMEDIATE PAST PRESIDENT J. Michael Conley EDITOR-IN-CHIEF Jonathan A. Karon PUBLISHERS/EDITORS Paul D. Dullea Sheila Sweeney PRINTING AND PRODUCTION Massachusetts Lawyers Weekly tape. With the eruption of technology in the modern law office, the choice of formats has expanded. Now a video can be delivered on digital media in the form of CD-ROMs, TV-DVDs, Digital Video Transcript (DVT) disks and even delivered streaming over a secure Internet connection. If you plan to use the deposition video at trial, the most effective format is the Digital Video Transcript. With a DVT the reporter s official transcript is synchronized to the video file, linking the printed word with the spoken testimony. With the testimony synched you can easily search for segments to view without having to fast forward or rewind a tape while stopping to find your place in the paper record. Simply highlight the first line of testimony you wish to view and double click on the highlight. The video will automatically be cued up to that portion of the proceedings and you can play the video from there. Most DVT disks will contain a software program which will allow the user to conduct keyword searches, index searches and basic video editing functions. You can highlight a section of testimony, and, using the easy to follow instructions, create a video clip that can be exported into trial presentation or multi-media presentation software, can be saved to a hard drive or portable media Continued on page 11

5 February 2015 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS 5 Major cause = major confusion By J. Michael Conley Don t let a heightened workers compensation causation standard confuse your third-party trial. When representing injured workers in third-party tort cases, we frequently encounter medical reports generated in the context of workers compensation proceedings. At trial, one or both parties will usually be offering such reports in evidence pursuant to G.L.c. 233, 79G. Many of these reports frame an opinion as to causation as whether the workplace incident is a major, but not necessarily predominant cause of the worker s disability. This formulation derives from G.L.c. 152, 1(7A), and applies to certain combination injuries. For our purposes in third-party cases, if we want to limit or exclude the bad reports and highlight the good reports, it is important to recognize: (a) that this is a heightened standard compared to the causation standard in our tort cases; and (b) that the formulation is often stated in cases to which it does not apply. G.L.c. 152, 1(7A), provides, in pertinent part: If a compensable injury or disease combines with a pre-existing condition, which resulted from an injury or disease not compensable under this chapter, to cause or prolong disability or a need for treatment, the resultant condition shall be compensable only to the extent such compensable injury or disease remains a major but not necessarily predominant cause of disability or need for treatment. Historically, the workers compensation standard for establishing causation Continued from page 1 rior Court adopted Superior Standing Order 1-15: Participation in Juror Voir Dire by Attorneys and Self-Represented Parties. We want to thank the SJC Committee for its work in drafting an interim order to guide the bench and bar as we move toward the implementation of attorney-conducted voir dire in Massachusetts. MATA has long been a proponent of meaningful voir dire and we are encouraged to now be joining the majority of other states that allow it. The option of panel versus individual voir dire, the lack of set time constraints and ultimately leaving the approach in specific cases to the discretion of the trial judge are all enlightened features of the standing order, which MATA commends. Our objective has always in a case involving aggravation/exacerbation/activation of a preexisting condition was essentially the same as the standard applicable to a third-party personal injury case. Our familiar jury charge provides: A defendant must take his victim as he finds him, and is liable for all the consequences of his acts, even when the consequences combine with a pre-existing injury or condition to bring about a greater harm to the plaintiff. A person is entitled to recover damages for any aggravation of a pre-existing condition or disability resulting from an injury. This is true even if the person s condition or disability made her more susceptible to the possibility of ill effects than a normally healthy person would have been, and even if a normally healthy person would not have suffered any substantial injury. Where an injury arising from a cause that entails liability on the defendant combines with a pre-existing or a later acquired disease or injury to bring about greater harm to the plaintiff than would have resulted from the injury alone, the defendant may be liable for all the consequences. If the injury causes or contributes to cause the development of a pre-existing disease, the person liable for the injury is also liable for the resulting aggravation. The wrongdoer may be held responsible for the harmful results of the combined effects of his wrongful act and the disease. Wallace v. Ludwig, 292 Mass. 251, 256 (1935); Freyermuth v. Lufty, 376 Mass. 612 (1978);Varelakis v. Etterman, 4 Mass. App.Ct. 841, 842 (1976). Similarly, the prevailing standard in workers compensation cases states: The previous condition of the employee s health is of no consequence in New beginnings for MATA and Massachusetts been to root out bias and to seat a fair and impartial jury for our clients, and attorney-conducted voir dire is essential to helping us achieve that goal. We are grateful to our many members who have worked tirelessly over the years to reach this watershed moment, so that the goal of seating a fair and impartial jury can be achieved. MATA will continue to provide our members with learning opportunities and resources to refine their voir dire techniques, and we look forward to working with the court to implement the new law throughout the state. We will also ask our members to provide feedback regarding their experiences under the new order to help us collect data that will be useful in monitoring the rollout of the law. Change is here, and MATA will be here with you. determining the amount of relief to be afforded.... [I]t is the hazard of the employment acting upon the particular employee in his condition of health and not what the hazard would be if acting upon a healthy employee or upon the average employee. The act makes no distinction between... healthy or diseased employees. All who rightly are describable as employees come within the act. Madden s Case, 222 Mass. 487, 494 (1916). In the described circumstances, 1(7A) deviates from this familiar rule and provides a heightened or elevated standard of proof. MacDonald s Case, 73 Mass. App. Ct. 657, 659 (2009); Goodwin s Case, 82 Mass. App. Ct. 642, (2012). Medical proof that the employee was disabled (either totally or partially) and that there was a causal relationship between the employee s disability and the injurious event is not sufficient. Castillo v. Cavicchio Greenhouses, Inc., 66 Mass. App. Ct. 218, 220 (2006). Application of the standard may be confounding and its understanding is not essential in a third party case; it is enough to understand that the standard is different and more exacting than the rule governing the tort claim. (To gain a more in depth understanding of the 1(7A) begin with Cornetta s Case, 68 Mass. App. Ct. 107 (2006)). Although the terminology major but not necessarily predominant cause is of very limited application, it unfortunately has become prevalent in medical reports to which the standard does not apply. The applicability of the heightened standard is limited to a discrete group of cases. The case must be established to involve a combination injury. If a medical opinion states, on the one hand, that the preexisting condition has no causal effect, or, on the other hand, that the effect of the injury has receded to the point preexisting condition has become the sole cause of the worker s difficulties, 1(7A) is not invoked. The preexisting condition must result Follow the money. In Forensic Accounting, you follow the clues, the facts, the money. No matter how elusive. Or how deeply buried. from an injury or disease, so other preexisting factors should not trigger the heightened standard. See, e.g., Errichetto v. Southeast Pipeline Contractors, 11 Mass. Workers Comp. Rep. 88, 91 (1997) (age related condition not predicate for 1(7A); Blais v. BJ s Wholesale Club, 17 Mass. Workers Comp. Rep. 187, 192 (2003) (if preexisting degenerative disc disease normal condition for employee s age 1(7A) does not apply); Alicea v. John B. Cruz Constr., 26 Mass. Workers Comp. Rep. 15, (2012) (smoking not a pre-existing condition owing to an injury or disease); and Beliveau v. Top Flite Golf Co., 23 Mass. Workers Comp. Rep. 141, 142 (2009) (morbid obesity not established as disease; 1(7A) inapplicable). The prior injury must not have been compensable in workers compensation. In all other cases, including cases involving preexisting conditions or diseases, the customary as is standard of causation applies. See Carpenter s Case, 456 Mass. 436, 448 (2010) (if a noncompensable preexisting condition does not exist 1(7A) not implicated). Nonetheless, the phrase major but not necessarily predominant cause often appears in reports that do not address combination injuries. When the plaintiff offers the medical report It is entirely proper for a plaintiff to certify under G.L.c. 233, 79G and introduce into evidence a report establishing causation in these terms. However, the terminology is opaque and confusing, and the last thing Massachusetts plaintiffs need is a greater challenge to their juries comprehension of legal causation. Consequently, trial lawyers soliciting reports from treating or examining physicians should consider informing the doctors that the major but not necessarily predominant cause standard does not apply, and asking them to avoid or edit out such terminology in favor of a Continued on page 9 To learn more about our services, please contact: Kimberley Train, CPA/ABV ktrain@blumshapiro.com Nancy Gregory, MBA, CFE ngregory@blumshapiro.com blumshapiro.com

6 6 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS February 2015 MATA celebrates the season

7 February 2015 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS 7 in style at Holiday Ball event How will your clients perform during stressful litigation? With over 17 years of experience in high stakes litigation Dr. Kathy Davis is unparalleled in solving complex ethical dilemmas. She will: davis med COLOR Get you what you need from your client Expedite communications with physicians Manage your client s well-being, releasing you from that burden Dr. Davis was the missing link in this case! She expedited settlement discussions by obtaining crucial medical reports, and provided the client with the emotional support she needed to make decisions. ~Attorney Juliane Soprano Kathleen K. Davis, PhD Office: Fax: info@davismedicolegal.com

8 8 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS February 2015 Continued from page 1 through life without a hand and to have to give up all those activities that require two hands. You may also award an amount to fairly compensate his spouse for her loss of consortium, but in no event, may you consider how you would feel if you were her. In any event, you must not consider what any of this felt like or will feel like if you were either of the plaintiffs. In fact, the only just, rational basis for assessing damages for pain and suffering is trying to imagine what it would be like to be the plaintiff. I would suggest that any juror who doesn t do that is engaging in impermissible bias. Everyone s natural bias is to minimize the impact of bad things that happen to other people. David Ball once described that bias as your broken leg is funny; my broken leg is a tragedy, which is similar to the old joke: Minor surgery is what happens to someone else. The only way to overcome that natural human bias is not only to allow, but to encourage jurors The rule against the Golden Rule to put themselves in the place of the plaintiffs. Unless we allow that, plaintiffs will not receive what the law says they are entitled to, which is the equivalent in money for the actual wrong caused by another. Sullivan v. Old Colony Street Railway, 197 Mass. 512, 515 (1908). There s really no other way to value pain and suffering. The Supreme Judicial Court said that we may not refer to numerical amounts that have no basis in the record, for example the cost of Super Bowl ads, rare art or ballplayer salaries. We also can t talk about verdicts in other cases. Harlow v. Chin, 405 Mass. 697, 704 (1989). The Legislature recently passed a law allowing us to suggest a specific number to the jury for pain and suffering. We have to be able to justify it somehow. But the law is silent on how we do that. My very first Editor s Note touched on my view that law frequently gets in the way of a personal injury practice. So here s some really good, surprising news I discovered: There may not actually be a meaningful prohibition on Golden Jonathan A. Karon, editor-in-chief of the MATA Journal, is a partner at the Boston firm of Karon & Dalimonte. He has a national practice representing the catastrophically injured, including cases involving amusement ride accidents, traumatic brain injuries and defective products. He is on MATA s Executive Committee and Board of Governors of. He can be reached at (617) or at jakaron@kdlaw.net. Rule arguments in Massachusetts civil cases. First, if it applies at all, it only applies to damages issues. Even in criminal cases, juries can be asked to put themselves in the place of a witness to evaluate whether their testimony was credible U.S. v. Kirvan, 997 F.2d 963, 964 (1st Cir. 1993), and most importantly to us, can be asked to put themselves in the place of the defendant to evaluate the defendant s conduct. U.S. v. Moreno, 947 F.2d 7, 8 (1st Cir. 1991). But here s the amazing part: In Forrestal, the 1st Circuit s leading case holding that the Golden Rule argument is improper, the court essentially said that jurors have to put themselves in the plaintiff s shoes to value pain and suffering, [b]y its very nature, pain and suffering is hard not to personalize. Although we abjure jurors to be objective, the measurement of how much pain and suffering is worth in dollars is bound to start with a subjective reaction on the part of the jurors. Forrestal, at 309. I read this as saying that in order to value pain and suffering properly, jurors must put themselves in the place of the plaintiff, but under no circumstances may counsel or the court tell them that s what they need to do. This is, of course, silly, but it would also explain why there are apparently no appellate cases in Massachusetts or the 1st Circuit in which a plaintiff had a verdict taken away for making the Golden Rule argument. Let me be clear: I am not suggesting that any of us intentionally make a prohibited argument in the hope that it will be viewed as harmless error. What I am suggesting, however, is that even now, the prohibition on making Golden Rule arguments is very limited and that our courts should look closely at whether it is impeding rather than promoting justice. Now that I ve gotten that off my chest, welcome to the latest issue of the MATA Journal. We are proud to bring you a Tip from Mike Mone, a master of the trial bar, who uses a compelling example from one of his cases to teach us some valuable lessons. Tom Murphy addresses one of the most important issues regarding voir dire; Alan Klevan tells us about AVVO; Charlotte Glinka provides her President s Page; and Mike Conley alerts us to a hidden pitfall regarding medical reports in workers compensation cases. I hope you enjoy this issue and once again, if you d like to submit something or if there s a subject you d like to see us address, please let me know. Tips from the masters: Stop, look, listen & cross Continued from page 2 pared for such testimony, but the expert never mentioned anything about a fragile aorta; in fact, he never went near the subject of how difficult or easy it would be to penetrate an aorta with a blunt grasper. Cross. Now, having looked (prepared) and listened, you are ready to cross. We first established with the expert in great detail the well-compensated work that he had done for the Risk Management Foundation on symposiums on the defense of medical malpractice cases. Those were fees he earned in addition to what he had earned as a testifying expert. We then turned to the fact that the expert, notwithstanding his searching the entire world of medical journals and case reports, could not find a single similar incident involving damage to the aorta during bariatric surgery. He attempted to cite the Australian case but when confronted with the actual case report, agreed it was not similar in any fashion to ours. He further admitted that in the several years since learning of this event, by being employed as an expert in this case, he had not changed the informed consent information that he gave to his own patients preparing for bariatric surgery by including the possibility of an aortic injury. He further agreed that he was a colleague of the defendant doctor, and even began referring to him by his first name during his cross examination. Ultimately, he disclosed the fact that his friend, colleague and co-member of the Lehman Committee on Mortality and Morbidity in Bariatric Surgery had never informed the committee that he had personally experienced the most serious surgical complication, unheard of in medical literature. He further admitted on cross that although his friend and colleague had never informed him or the other members of the committee of the most serious life-threatening complication he had ever encountered, he had heard rumors of the event but never raised it with the defendant despite their mutual interest in avoiding serious complications. Stop. The cross had gone really well, and I had a nanosecond thought as to whether or not I should confront him with the fact that he had not supported the defense proposition and the defendant s testimony regarding the ease with which a thoracic aorta could be torn in this particular case. During that nanosecond, I considered that I was about to walk into a trap or that the very experienced defense lawyer had forgotten to ask about the force needed to tear the aorta and would come back to it if I raised it. There would then be a full explanation, which, although probably nonsense, might convince someone, so I stopped and never raised the issue. You need to know when to stop because although things can get better, they can also get worse. In final arguments, I made it a major point that their expert, who was very well-qualified and a great friend of the defendant, never agreed with the premise that the aorta was uniquely susceptible to injury, and thus a doctor confronting it in pushing through the tissue might not have known that he was about to tear the major muscular vessel in the body. So in following your mother s advice about crossing a street, hopefully you never got hit by a truck. If you think of this advice, you might not get hit by a legal locomotive during cross-examination. To join MATA please visit MASSACADEMY.COM Michael E. Mone is a partner at Boston s Esdaile, Barrett, Jacobs & Mone, where he specializes in litigation with particular interest in products liability, medical malpractice, aviation and insurance law cases. A graduate of Middlebury College and Boston College Law School, he has served as president of the Massachusetts Academy of Trial Attorneys, the American College of Trial Lawyers and the Massachusetts Bar Association. He has been listed in every edition of The Best Lawyers in America and was recently selected by Massachusetts Lawyers Weekly as a Lawyer of the Year. Mone s pro bono work includes the representation of lawyers and judges in disciplinary matters and the representation of a detainee at Guantanamo Bay.

9 February 2015 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS 9 Major cause = major confusion Continued from page 5 straightforward opinion as to causation. That may not be possible with respect to existing reports generated by physicians in the course of the workers compensation proceeding. While one might seek this revision of a report prepared on behalf of the injured worker, such revisions will presumably not be available with respect to reports by insurers physicians or impartial examiners. If admitting a favorable report including the major but not necessarily predominant cause language, it would be worthwhile to avoid confusion (and emphasize the positive opinion) by seeking an instruction that major cause is a higher standard and that jury should focus its deliberations on the Court s charge concerning causation/aggravation. Infrequently, plaintiff s counsel may encounter a report in which the examiner confirms a causal relationship, but not a major cause. Unless it can be intelligibly redacted, the confusion arising from such a report may outweigh the report s benefit, even though it is nominally helpful to the plaintiff. When the defense offers the medical report Any time the defense offers a negative causation report containing a major, but not necessarily predominant or similar language, plaintiff s counsel should file a motion in limine excluding the report. The grounds for such a motion are that the opinions as to causation may represent a correct standard for a worker s compensation combined injury proceeding, but are inapplicable to causation issues in a common law tort case. Accordingly, permitting such opinions into evidence is likely to confuse and mislead the jury, or impose upon the Court the need to explain to the jury the different standards in worker s compensation which, in turn, impinges on the customary exclusion of worker s compensation evidence at trial. Moreover, admitting evidence based on the incorrect standard limits its probative value and creates the substantial danger of unfair prejudice. See Massachusetts Guide to Evidence Section 403 and cases cited. Such a motion is appropriate not only in true combination injury cases to which 1(7A) applies, but also where the examining physician has incorrectly or extraneously included the major cause phraseology. Correctly or incorrectly, the physician has signaled that his/her opinion is based on a heightened standard not relevant to the issue in the third party case. In addition, in a true combination injury scenario in which 1(7A) would apply; counsel may challenge a negative report s admission even if the report does not include the precise statutory language of the heightened standard. Stewart s Case, 74 Mass. App. Ct. 919, 920, 910 N.E.2d 937 (2009) (expert witness need not use magic words of 1(7A); opinion expressed in terms substantially equivalent to those of statute will suffice). For trial lawyers handling third-party cases, a passing understanding with 1(7A) can help us to avoid confusion in medical reports offered on behalf of injured workers and to identify opportunities to limit or prevent admission in our trials of damaging medical reports reciting or utilizing the statutory heightened standard of causation. (Thankfully, we only need to know the statute is there, and do not need to join our brethren in the workers compensation bar trying to apply the concept of major cause in an understandable and predictable way). J. Michael Conley, immediate past-president of MATA, is one of the founders of Kenney & Conley, P.C. He has dedicated his professional career to advancing the rights of injured individuals and their families. He concentrates his practice on representing injured victims of negligence and other misconduct. He is a frequent writer and lecturer for a number of organizations, including the Massachusetts Bar Association, Massachusetts Continuing Legal Education, Inc. and MATA. Michael was the longtime chair of the MATA Amicus Curiae Committee and the MATA Journal. A graduate of The George Washington University in Washington D.C. and Suffolk University Law School, he is an active member of the MBA and its MBA Appellate Bench Bar Committee and Civil Litigation Section. Michael also is a member of the American Association of Justice and is an active in its Product Liability Section, Insurance Law Section, Motor Vehicle Collision, and Highway and Premises Liability Section. I know the law, but I need to learn the business of law Amicus Committee update Continued from page 1 $63 million compensatory award was supported by the evidence, or if it was in effect punitive and therefore subject to due process limits; and the issue of expert testimony. Alongside MATA s brief in support of the plaintiffs were filings from the American Association for Justice, the Attorney General s Office and a third co-signed by the Massachusetts Bar Association and the Massachusetts Medical Society. The Dec. 1, 2014 oral argument was superb and is available on the SJC s website. In addition to considering other cases, the committee wrote a letter to the SJC in support of plaintiff s application for direct appellate review of Boyle v. Zurich (SJC No ). They took the case. The issue there is whether the notice of a pending lawsuit to an insurer required to prompt the duty to defend must come from the insured-tortfeasor, as called for in the policy, or whether such notice from some other source, such as the plaintiff-victim, suffices. A related question is whether the insured-tortfeasor s failure to provide such notice precludes coverage absolutely, or as the trial judge ruled, merely defeats coverage when such failure prejudices the insurer. The case is slated for oral argument in March. The Amicus Committee provides a valuable service to MATA, the bar and the community. Anyone interested in helping with this work should contact the chair. Thomas Murphy of the Law Offices of Thomas R. Murphy has tried scores of cases to verdict in state and federal courts, for plaintiffs and defendants, in Massachusetts and elsewhere. He has briefed and argued a significant number of cases at all levels of state and federal courts except the U.S. Supreme Court. An active member of the MATA Amicus Committee since 2006 and chair since 2013, he has been the principle author or editor of amicus briefs in many cases, including Klairmont v. Gainsboro Restaurant, Sanchez v. United States of America, and most recently, Reckis v. Johnson & Johnson. A proprietor of the Social Law Library and elected as the Ipswich town moderator, he is a member of the Essex County and MBA and has been inducted into the American Board of Trial Advocates. Ad Rep: Melanie Client: LOMAP Lawyers Weekly Advertising Size/Section: MATA 2x6.854 Client Rela ons Reduce your risk by implemen ng effec ve client conflict systems, a client qualifica on system and an effec ve communica on policy. lomap bw Disaster Recovery Are you ready for a disaster? Have you protected your client s interests? Can you stay in business? We can help you answer these ques ons with an empha c Yes. Finances Improve billing prac ces, set a value for your services and plan for the future. Marke ng Target and convert great clients. We will show you how to plan for your market entry or refine your exis ng marke ng pla orm. Office Technology We will guide you toward technology that works in the legal environment. FREE CONFIDENTIAL PRACTICAL SOLUTIONS Your law practice advisor MILK STREET, SUITE 810, BOSTON, MA RACHEL@MASSLOMAP.ORG DON T MISS US ONLINE MASSACADEMY.COM The space you purchased has been reserved and the above copy must be approved b day at 3pm. The ad will run as shown unless we are notified of changes. I approve the above ad to appear in Lawyers Weekly on according to their stated terms and conditions at a rate of $

10 10 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS February 2015 Continued from page 3 is its fairness. Other sites have no guidelines as to who may review an attorney. It s not uncommon for opposing parties to leave negative reviews out of spite on sites such as Google or Yelp. Avvo, by contrast, has strict review standards and vets reviews before they are published. It will remove a review if it does not meet certain guidelines as to appropriate reviewers and subject matter. This leads to a more accurate representation of an attorney s quality, which can then be presented to potential clients. Avvo has its own ratings scale for lawyers, based on a proprietary algorithm, which has come into question. A suit in Seattle against the Avvo rating system was dismissed, the court ruling that the Avvo-generated profile was only an opinion and thus protected by the First Amendment. According to McMillan, Avvo worked with industry leaders to develop an algorithm that brings together all of the key elements of an attorney s resume in order to assist consumers in evaluating different lawyers. Some, but not all, of these factors include education, level of experience, and continued participation in the legal industry according to McMillan, To what extent are they a leader in their profession? It is important to note that a lawyer has the option of not having their Avvo-generated rating displayed on their Avvo page. A lawyer can claim their Avvo profile and populate it with their resume information to assist in maximizing ratings. According to Avvo, this can be done in as little as five minutes; however, populating it with as complete a resume as possible will take closer to a half -hour. Once your page is populated, you can solicit peer endorsements and, equally or even more important, client reviews. For some lawyers, the critical feature of Avvo is its Question and Answer forum, on which a visitor can post a question to be seen by all lawyers on the site. While an attorney/client relationship is not expressly created in this forum, the client may look up your profile, then contact you offline to retain you. Answering questions on Avvo provides two clear benefits. First, potential clients seeking answers to legal questions may find you through an answer provided in the Question and Answer forum and contact you as a result. Second, potential clients reviewing your Avvo profile as a part of their evaluation process will be able to see the answers you provided right on your profile page and get a better understanding of your knowledge in that specific legal field. Therefore, the more questions you answer, the higher the likelihood of receiving potential clients. Why is it so important to claim your Avvo profile page and participate in the Understanding Avvo Question and Answer discussion? The numbers are staggering. McMillan provided the following information to me, which I have confirmed with a simple online search: Avvo receives approximately 8 million visitors per month. Every 10 seconds, someone receives legal advice on Avvo. There are more than 6.5 million searchable questions and answers on Avvo in the Question and Answer forum. Approximately 200,000 attorneys have claimed their profile on Avvo. Approximately 97 percent of all practicing lawyers are rated on Avvo. There are more than 770,000 client and peer reviews presently on Avvo. With the amount of traffic that is generated through Avvo, it is easy to see why it performs so well in online search rankings. A quick Google search of personal injury lawyer newton and divorce lawyer newton revealed Avvo to be the top result under the paid lawyer advertising. To achieve that visbility, Avvo relies on lawyers to answer questions and populate their own page with terms that the latest Google algorithm finds attractive, called a long tail search. According to McMillan, Google values good content and information. It cares about attorney reviews. Google will pull our information into their algorithm because Google wants to see valuable and original content. So, in essence, by generating content for Avvo and not their own sites, lawyers are actually helping Avvo move up in the rankings. However, as McMillan is quick to point out, the relationship between attorneys and Avvo is mutually beneficial. Avvo s platform makes it easy for attorneys to generate content. By answering a consumer s question, attorneys are exposing themselves to the consumer, thereby bypassing the process of search engine optimization and marketing straight to their target audience. It is free visibility for the lawyer. By participating in Avvo, you will get visitors to your profile. Once they get to your profile, Avvo offers free character visibility where you can, for free, showcase your skills and experience. Further, according to McMillan, attorneys who answer just 15 questions receive 10 times the contacts on average as attorneys who don t answer questions. Avvo also provides additional services for a fee. Starting at $99 per month, Avvo Websites will custom design a website compatible with both desktop and mobile devices, with an emphasis on maximizing content with Google s most recent search algorithm. For $49 per month, lawyers can upgrade their account to Avvo Pro,, which allows you to customize your profile, spotlight client reviews and peer endorsements prominently on your profile and, equally important, removes other lawyers sponsored ads that appear on your profile. For $199 per month, there is the powerful Avvo Ignite Suite, which is essentially a plug and play client and marketing management database, immediately notifying you when a new prospective client is trying to contact you, and keeping track of all communications with leads and existing contacts. Ignite also provides you with templates you can use at the touch of a button, and contains a scheduling tool to schedule communications. Ignite also contains marketing and client conversion tools to allow you to see which marketing channels are working best, along with reports to assist you in making decisions about how your practice is running. Avvo recently introduced Avvo Advisor, an on-demand legal advice service from an attorney anytime, anywhere, for a fixed fee of $39 for 15 minutes, over the phone. When I heard about Avvo Advisor, my first thoughts were: How can one give a client legitimate advice in 15 minutes? And how can one give ethical advice? The service has proven to be a success while allaying my concerns. According to McMillan, the vast majority of issues raised by clients in the 15 minute calls are resolved. Oftentimes, the attorney with whom the client is speaking will continue the conversation because the attorney has agreed to do so. If the attorney feels that the matter is such that an attorney/client relationship needs to be established, the parties take the conversation offline in order to do so. Avvo has also posted a document online that addresses the various ethical questions that the service might raise. Avvo Advisor is presently serving Massachusetts, and all you need to participate is a bank account and a phone. When Avvo receives an inquiry from an individual, it will send a text message to the attorney. The attorney must respond to Avvo in order to get credit for the call. After the call is completed, the attorney gets the $39 deposited into their bank account. Participating attorneys would then pay a $10 marketing fee to Avvo per phone session. As McMillan notes, Avvo Advisor enables lawyers to monetize their downtime. Avvo also presents both web-based and standalone CLEs featuring national speakers. For the past four years, Avvo has put on a national legal marketing conference known as Lawyernomics. This year, Lawyernomics will be held at the Wynn Las Vegas from May Topics will include: The Creative Side of Online Marketing and Search Engine Optimization, Understanding Cloud Computing, Creating a Website that Converts Visitors into Clients and New Tools to Win New Business, to name just a few. The event includes several networking opportunities as well. The cost is $525 for attendees who register by Feb. 28. Last year, over 400 people attended the conference and McMillan expects attendance to reach that figure this year as well. Besides Lawyernomics, Avvo presented 32 online webinars last year, available to lawyers who signed up for the option on the Avvo site. One of the most popular webinars was dedicated to how to respond to and/or remove a negative review. Other webinars included Keys to a Successful Facebook Page, How to Build a Robust Attorney Referral Base, Getting More Business With Avvo, How to Produce a Legal Video and What You Need to Know to Go Mobile. Upcoming webinars include Ethical Responses to Negative Online Feedback on March 12, Ethics of Blogging for Lawyers on April 9, If You re Not on Facebook You re Committing Malpractice on June 11 and Being Smart With Social Media on July 9. All webinars are free. Avvo s presence in the online legal community dictates that, at a minimum, lawyers must consider strongly participating in the Avvo community and claim their profile. Of course, Avvo s ultimate goal is monetization, and it certainly has the backing to continue to grow and develop new ideas. However, based on the products that it has to offer, the relationship between Avvo and attorneys can clearly be characterized as mutually beneficial. As McMillan states, and I have confirmed this with several local colleagues, Avvo works. But like any software or cloudbased package, you will only get out of Avvo what you put into it. And before stepping into its waters, you should do your research and determine exactly what you want to get out of Avvo before investing your time and effort. For some, the results may be nominal. For others, Avvo has become their exclusive online marketing tool. In any event, I suggest you claim your profile and ensure that the factors driving your reputation are accurate, as Avvo is here to stay as a major, if not the primary player in search engine marketing. Alan J. Klevan is a principal at The Law Offices of Alan J. Klevan, P.C. He concentrates his practice in the fields of workers compensation law, automobile tort law and general negligence law. In 2008, he formed Law Practice Strategies, a firm dedicated to consulting with small law firms and sole practitioners on how to use technology to build more efficient and profitable practices. In August 2009, the American Bar Association s General Practice, Solo and Small Firm Division awarded him its Solo and Small Firm Trainer of the Year Award. You can find Alan at alanklevan or

11 April 2014 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS 11 Getting the most out of videos at trial Continued from page 4 for later viewing, or can be encoded into a file small enough to be ed to a client or colleague for viewing. Just recently I helped a client prepare a mediation brief in electronic file format and we were able to embed deposition video clips wherever transcript testimony was cited, with a thumbnail icon hyperlinked to start the video when clicked. The mediator was sent a printed copy of the brief as well as a CD with the computer version. Edited video clips can be combined into a presentation in any order and used at trial. Rather than show a jury eight or more hours of video testimony you can create a quick and effective presentation without all of the pauses, non-responsive answers and stated objections that can be prevalent during a long deposition. And all of these processes can be accomplished by even the most basic computer user. You don t have to be a professional video editor to make great presentations. Tips from the courtroom roadies In Massachusetts, we are fortunate to have a wide variety of architectural and technological styles at use in the court systems. From the modern U. S. District Court building on Fan Pier in Boston to the other end of the spectrum, the Charles Bulfinch-designed Essex County Superior Courthouse, built in 1805 in the Newburyport, the design and usage of technical presentations are subject to the various venue capabilities. These capabilities must be kept in mind when planning and implementing your trial technology. These tips should come in handy for any location where you may practice. They have been gathered through much trial and error throughout the past two decades. Oh, say can you see There is a wide range of display equipment to choose from when designing a courtroom presentation. Some buildings are designed with technology in mind, such as the U. S. District Court in Boston, where courtrooms there are equipped with state of the art presentation tools. These include individual computer monitors in the jury box, the bench and on counsel tables; telestrator touch-screen monitors on the witness stand and counsel podium; and audio-visual playback devices built in to the room. Attorneys are invited to make the most of the equipment and use their technology to full advantage. In other venues, particularly at the Superior Court level, display equipment must be brought in because nothing is available in the courtroom but electrical outlets (and many times, very few outlets at that.) When planning for display equipment, care must be given as to the layout of the courtroom. In order for all jurors to have an unobstructed view of the visual evidence, oftentimes counsel will find their options to be limited. We have had the greatest success using small video/computer projectors and large, portable movie screens. Not only can they be used in confined spaces, but by having one place for all the jurors to focus their attention, counsel can often control where the members of the panel look as well as the amount of time they spend studying the evidence. We also recommend using of the rule of threes. For example, if the witness stand is to the right of the jury box and the counsel podium is to the left, position the display screen in the center, directly across from the jury box. That way the attention of the panel can go from question, to display to answer without having to focus attention somewhere out of this visual arc. And if a deposition video is to be played, then jurors do not have to look at an awkward angle or crane their necks to get a good look at the picture. The care and comfort of the jury should be foremost in the mind of the presentation technician and the layout of the room and equipment will go a long way towards maximizing your use of the technology. success in your endeavors. Fade to black * When I videotape a deposition, I try to set up the room in a way that eases the difficult job of the freelance court stenographer who will transcribe the proceedings. In my time as a legal videographer I have had the privilege of working with some of the finest court reporters in the nation. In fact, the best advice came from J. Edward Varallo, a six-time National Speedwriting Champion (yes, they have races), one of the pioneers of Real-time Reporting and a renowned instructor and speed coach. He told me the best layout for a reporter is to have the witness on his right-hand side and the questioner on his left-hand side. Using their strange machines and phonetic language, the reporters begin a new line in a transcript by designating a question with a capital Q, which is stroked with the left hand, and a capital A for answer, made with the right hand. So having the questions and answers come from the appropriate side is just a small way to make things easier and help produce an accurate record. After all, the reporter has the hardest job in the room, while I have the easiest: I just have to stay awake watching TV. Final thoughts A successful litigator must wear many hats and develop and master many diverse skills. Investigator, counselor, legal expert and, most of all, teacher. These are just some of the things you must become and talents you need to successfully advocate for your client. As with any discipline, tools are available to make the job easier. Video technology is one such tool, and by using the technology you can bring to life your thoughts and words and create a vivid image in the minds of your jurors. By capturing their attention and teaching them everything they need to make an informed, just decision, you will have done your job NOMINATE to the best of your ability and find NOMINATE TODAY! NOMINATE TODAY! TODAY! Ian A. McWilliams is a videographer, trial presentation technician and member of the American Society of Trial Consultants who helps trial attorneys present their evidence in venues throughout the U.S. In 200, he was dubbed Captain Video by Suffolk Superior Court Judge Carol S. Ball during a civil trial. He can be reached at www. newenglandtrialservices.com. LITIGATION SUPPORT FORENSIC Northeast Consulting Engineers, Inc. Dr. John Mroszczyk, PE, CSP Vehicle Accident Reconstruction, Failure Analysis, Forensic Engineering, Mechanical & Product Design, Construction & Industrial Accidents, Slips, Falls, Premise Defects, Safety Engineering 74 Holten Street, Danvers, MA nce3@verizon.net (978) ECONOMIC EXPERT WITNESS EXPERT WITNESS for Plaintiff or Defense Expert Appraisals of Economic Loss Appraisal Reports Depositions Testimony Defense Consults Personal Injury Wrongful Death Wrongful Termination Divorce Free Initial Consult ACTUARIAL LITIGATION CONSULTING Kevin M. Reopel, FSA, MAAA Feeding Hills (Springfield area), Massachusetts KMR@ALC123.com Free Initial Consultation filler A LAWYERS WEEKLY WEEKLY EVENT CELEBRATING EVENT EXCELLENCE CELEBRATING IN: A LAWYERS EXCELLENCE WEEKLY IN: EVENT CELEBRATING EXCELLENCE IN: UP & COMING LAWYERS MARKETING PRO MARKETING BONO FIRM ADMINISTRATION MARKETING PRO BONO OPERATIONS PRO BONO PARALEGAL UP & COMING LAWYERS UP & COMING LAWYERS FIRM ADMINISTRATION FIRM OPERATIONS ADMINISTRATION OPERATIONS PARALEGAL PARALEGAL May 14, Marriot Long Wharf Hotel masslawyersweekly.com/excellence-in-the-law To be listed in the MATA Directory, please call Elaine Fanning at (800) x or (617) elaine.fanning@lawyersweekly.com DEADLINE TO NOMINATE IS FEBRUARY 20, 2015 May 14, Marriot Long Wharf Hotel May masslawyersweekly.com/excellence-in-the-law 14, Marriot Long Wharf Hotel DEADLINE TO NOMINATE IS FEBRUARY 20, 2015 masslawyersweekly.com/excellence-in-the-law DEADLINE TO NOMINATE IS FEBRUARY 20, 2015 H40603 H40603 H40603

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