There are times when my clients are required to attend an "Independent Psychiatric Examination." This does not happen often because I prefer to present my clients' losses in human as opposed to psychiatric terms.
Here is what happens at a psychiatric examination. After reviewing all medical records and the client's deposition, the psychiatrist or psychologist conducts their own "interview." In that interview, the psychiatrist asks any question the psychiatrist wishes to ask. Basically, it is a second deposition for the defense. In a recent psychiatric exam, the "interview" lasted 6 hours with the first 30 minutes devoted to my client's childhood before the age of 5.
Following the interview, the psychiatrist will prepare a report as to their opinions. With the report not based on any objective data, the opinions of the psychiatrist are purely subjective. The reports tend to be as verbose as the psychiatrist.
With this background, clients should understand why it is that I choose to avoid psychiatric/psychological testimony if possible to present their harms and losses. Juries have trouble understanding this evidence in the first place and presenting your case based on this evidence entitles the defense to have the psychiatrist of their choice conduct the 6 hour interview. The exceptions to this Rule involve cases of severe head injury or instances in which the client, himself, has been forced to seek psychological treatment.
When the client is required to attend a psychiatric examination at the request of the Defendant, what do I do to protect the client. The first thing I do is attend with the client. Being present allows me to protect against abuses of the system, e.g., not allowing clients to take bathroom breaks, preventing improper questions into subjects like conversations between clients and lawyers. The second thing I do is to make certain that the client knows that questions can be asked on just about any subject matter. Finally, I make certain that the client understands their case and where psychological testimony will be important. It is not unusual for this preparation to take mulitple meetings lasting several hours.
The psychological examination is unpleasant for the client but the goal is always for the client to present themselves properly. You always have to play your hand smartly. See www.Junelawyer.com
Wednesday, March 5, 2014
Monday, February 24, 2014
Why Its Different Representing Alaska Natives Outside Anchorage
I spent part of last week in Kotzebue, a small town of mostly Alaska Natives just north of the Arctic Circle. The weather was clear and beautiful but cold. The high temperature was 12 below.
After a morning hearing, I spent the afternoon reconnecting with an old friend and client. We sat in his living room and over the course of the afternoon shared notes on each of our children, our spouses, his business, my practice and everything else under the sun. Sometimes the conversation was slow but we let the natural gaps in the conversation sit there.
While visiting, there was a steady parade of people coming into his home. Each person would knock briefly at the door and come in without waiting. This is what one does when it is below zero outside. Once inside, the person would ask a quick question and be on their way. Sometimes, the person had no business and one woman came in simply to warm up on her walk through town.
At the end of the day, my client served me dinner--salmon that he had caught during the previous season at his setnet site. In towns like Kotzebue, you appreciate dinner invitations because you know that each dinner is a gift out of the subsistence gathered to last the entire winter.
The visit reminded me of why I enjoy this side to my practice. When one makes a friend in the smaller towns of Alaska, they are a friend forever and they will look out for you forever. As a lawyer, you owe them the same responsibility in return.
After a morning hearing, I spent the afternoon reconnecting with an old friend and client. We sat in his living room and over the course of the afternoon shared notes on each of our children, our spouses, his business, my practice and everything else under the sun. Sometimes the conversation was slow but we let the natural gaps in the conversation sit there.
While visiting, there was a steady parade of people coming into his home. Each person would knock briefly at the door and come in without waiting. This is what one does when it is below zero outside. Once inside, the person would ask a quick question and be on their way. Sometimes, the person had no business and one woman came in simply to warm up on her walk through town.
At the end of the day, my client served me dinner--salmon that he had caught during the previous season at his setnet site. In towns like Kotzebue, you appreciate dinner invitations because you know that each dinner is a gift out of the subsistence gathered to last the entire winter.
The visit reminded me of why I enjoy this side to my practice. When one makes a friend in the smaller towns of Alaska, they are a friend forever and they will look out for you forever. As a lawyer, you owe them the same responsibility in return.
Tuesday, December 24, 2013
Sometimes Trial Is The End of The Case. Sometimes, Trial Is Just Another Event
I just finished a 2 week trial in a motor vehicle accident case ending on December 20. After 5 years during which the case went up to the Alaska Supreme Court, the jury came back with a $1,430,000 verdict. While the verdict was good news for the client, the trial was also an exercise both in how challenging it is for a client's case to go to trial and how many pitfalls lie in trial.
The case involved a 25 year old man who was a motor vehicle accident victim in a T-bone collision on December 31. When other people were celebrating the New Year, he was in the emergency room. Within a month, he had been diagnosed with herniated discs in his low back. Within 6 months, he had been forced to undergo disc replacement surgery. These injuries caused him to develop herniated discs in his neck 4 years later. He made 2 unsuccessful attempts to go back to work.
The trial show the lengths that an insurance company and defense lawyer would go to avoid payment. Over the last 5 years, these have been the defenses.
1. It is impossible for persons to be seriously injured in a T-bone collision.
2. The client's injuries must have been the result of misjudgments by his physicians who were trying to help him recover.
3. The client's problems must be related to the medications his physicians prescribed to control his pain.
4. Because the client happened to occasionally play poker, he must be able to work.
During trial, the insurer actually called a biomechanicist to testify that the forces of a T-bone collision were less than walking down stairs or lifting up a box. The biomechanicists earns his living giving this testimony.
The insurer also called a retired neurosurgeon to also testify that serious injury was not possible. The surgeon, working part time, has earned hundreds of thousands of dollars from insurance companies giveing testimony like this.
After a hard 10 days, the jury came back with its verdict. While gratified, I have seen juries return verdicts that were much less compassionate under similar facts. Sometimes, they believe the hired gun witnesses.
As for the future, my client is waiting to see whether the insurer will now appeal.
You have to play your hand well.
The case involved a 25 year old man who was a motor vehicle accident victim in a T-bone collision on December 31. When other people were celebrating the New Year, he was in the emergency room. Within a month, he had been diagnosed with herniated discs in his low back. Within 6 months, he had been forced to undergo disc replacement surgery. These injuries caused him to develop herniated discs in his neck 4 years later. He made 2 unsuccessful attempts to go back to work.
The trial show the lengths that an insurance company and defense lawyer would go to avoid payment. Over the last 5 years, these have been the defenses.
1. It is impossible for persons to be seriously injured in a T-bone collision.
2. The client's injuries must have been the result of misjudgments by his physicians who were trying to help him recover.
3. The client's problems must be related to the medications his physicians prescribed to control his pain.
4. Because the client happened to occasionally play poker, he must be able to work.
During trial, the insurer actually called a biomechanicist to testify that the forces of a T-bone collision were less than walking down stairs or lifting up a box. The biomechanicists earns his living giving this testimony.
The insurer also called a retired neurosurgeon to also testify that serious injury was not possible. The surgeon, working part time, has earned hundreds of thousands of dollars from insurance companies giveing testimony like this.
After a hard 10 days, the jury came back with its verdict. While gratified, I have seen juries return verdicts that were much less compassionate under similar facts. Sometimes, they believe the hired gun witnesses.
As for the future, my client is waiting to see whether the insurer will now appeal.
You have to play your hand well.
Monday, September 23, 2013
Trial Postponement: Why This is Frustrating for both Clients and Lawyers.
Last Thursday, the Judge continued (postponed) a trial scheduled to start today (Monday) for 45 days. The Defense did not want to go to trial. Because Judges are never reversed for postponing trials (and sometimes reversed for refusing to postpone trial for a party that claims not to be ready), the postponement was granted.
For the client, postponement is another frustrating event in a long process. Psychologically ready for trial, the Client must regroup and prepare to fight another day. In the meantime, the stress and uncertainty of resolution that only a trial can bring to an end, continues.
For the lawyer, postponement presents a series of events as the lawyer stands down in his trial preparations while, at the same time, beginning preparations for the new dates. These steps include:
1. Notifying each and every witness who has made room in their schedules to testify that the trial is being postponed.
2. Working with the same witnesses to reserve time on the new date to testify. It is not unusual to deal with scheduling conflicts on the new date. This all has to be worked out.
3. Reviewing the Lawyer's Calendar to address scheduling conflicts on the new trial date. With the trial case having the highest priority, this means addressing new dates for other cases.
4. Continuing to work on issues pertaining to exhibits that are not resolved simply by the postponement of trial.
5. Reviewing the status of other matters that were being put on hold because of the now-cancelled trial.
No matter what happens, one has to continue to play their hand smartly. See www.Junelawyer.com
For the client, postponement is another frustrating event in a long process. Psychologically ready for trial, the Client must regroup and prepare to fight another day. In the meantime, the stress and uncertainty of resolution that only a trial can bring to an end, continues.
For the lawyer, postponement presents a series of events as the lawyer stands down in his trial preparations while, at the same time, beginning preparations for the new dates. These steps include:
1. Notifying each and every witness who has made room in their schedules to testify that the trial is being postponed.
2. Working with the same witnesses to reserve time on the new date to testify. It is not unusual to deal with scheduling conflicts on the new date. This all has to be worked out.
3. Reviewing the Lawyer's Calendar to address scheduling conflicts on the new trial date. With the trial case having the highest priority, this means addressing new dates for other cases.
4. Continuing to work on issues pertaining to exhibits that are not resolved simply by the postponement of trial.
5. Reviewing the status of other matters that were being put on hold because of the now-cancelled trial.
No matter what happens, one has to continue to play their hand smartly. See www.Junelawyer.com
Monday, September 9, 2013
Preparing for Trial: Always a Surprise
I am preparing for a trial in 2 weeks. The case is straightforward in that my client was injured in a motor vehicle accident and there is no question that it was the other driver's fault. Still, over the last 3 weeks, there has been a constant parade of filings by the defending lawyer, identifying new witnesses with questionable connections to the case, accusing my client of dishonesty, and accusing myself of misconduct.
Why is this? Here are some possible reasons.
1. While it may seem that everything should be resolved prior to trial, there are regularly loose ends that have to be addressed. This is part of the challenge of going to trial. You have to keep your eye on the goal and move forward no matter what issue is raised.
2. With legal responsibility unresolved, the defense lawyer has nothing else he can talk about. All he can do is make molehills into mountains and raise innuendo. Unfortunately, sometimes this is an effective strategy because juries can be fooled.
3. Different lawyers have different standards of professionalism. In this case, the opposing lawyers practice is to do this.
So, what does one tell the client under these circumstances: When it comes to trial, expect the unexpected, be prepared for unpleasant "surprises" from the other side, respond to the best of your ability, and put your best foot forward.
As always, the bottom line is to play the hand smartly to the best of your ability. For clients, this is advice more easily given than followed. See www.Junelawyer.com
Why is this? Here are some possible reasons.
1. While it may seem that everything should be resolved prior to trial, there are regularly loose ends that have to be addressed. This is part of the challenge of going to trial. You have to keep your eye on the goal and move forward no matter what issue is raised.
2. With legal responsibility unresolved, the defense lawyer has nothing else he can talk about. All he can do is make molehills into mountains and raise innuendo. Unfortunately, sometimes this is an effective strategy because juries can be fooled.
3. Different lawyers have different standards of professionalism. In this case, the opposing lawyers practice is to do this.
So, what does one tell the client under these circumstances: When it comes to trial, expect the unexpected, be prepared for unpleasant "surprises" from the other side, respond to the best of your ability, and put your best foot forward.
As always, the bottom line is to play the hand smartly to the best of your ability. For clients, this is advice more easily given than followed. See www.Junelawyer.com
Wednesday, July 31, 2013
What Is the Best Testimony An Accident Victim Can Hope For from a Coworker
I was in San Pedro, California last week taking depositions of a former job superintendent and foreman on a construction site. My client was a piledriver/welder. This is the best testimony that a lawyer can hope to get from coworkers like this, particularly supervisors.
"He was an excellent welder."
Testimony like this does more than support a claim for wage loss. It bolsters the client's believability as a witness because good workers can be relied upon.
The strongest witnesses for my client are usually not friends or family but job supervisors.
"He was an excellent welder."
Testimony like this does more than support a claim for wage loss. It bolsters the client's believability as a witness because good workers can be relied upon.
The strongest witnesses for my client are usually not friends or family but job supervisors.
Thursday, June 6, 2013
What Cruise Ship Passengers Should Know After An Accident
Todays' news reported a tragic accident in Southeast Alaska. National Geographic tour passengers from the cruise ship, Seabird, were on a Pacific Wings DeHavilland Beaver that crashed into a mountainside. The causes of the crash remain unknown but one man, a respected engineer from Los Alamos died and other passengers were seriously injured. Because of the steepness of the mountainside, basically a cliff, the survivors were evacuated by use of a helicopter winch.
Cruise passengers who become accident victims while on an excursion need to pay special attention. Their claims can be treated differently from the claims of other accident victims to the detriment of the Cruise Passenger Accident Victims.
The most important document affecting Cruise Passenger Accident Victims rights is the Ticket Contract. The "ticket"is more than a stub, more than a boarding pass, and is long enough that you know it has been written by the cruise's lawyers. Hard copies of the Ticket Contract may be provided passengers but, increasingly, the Ticket Contract is only provided online or electronically. In the end, the Ticket Contract is written by the Cruise Company for the protection of Cruise Company if the Cruise Passenger has a dispute.
The Ticket Contract commonly attempts to change Cruise Passenger Accident Victim rights in 3 ways. One way is a Contractual Statute of Limitation. The language of the Ticket Contract will require the Cruise Passenger Accident Victim to present a claim in a period shorter than Alaska's 2 year statute of limitation and I have seen periods as short as 6 months when the Cruise Passenger Accident Victim is focused on medical treatment and controlling his losses and before he is able to focus on compensation for those losses. Interestingly, on one occasion, the Alaska Supreme Court ruled that this type of conduct is unenforceable. But there is no downside to the Cruise Company raising the defense and zealous advocacy will trump more humanitarian principles. Because its better to avoid this defense if possible, the recommendation for Cruise Passenger Accident Victims is to locate the Ticket Contract and know their rights.
The second attempted change of the Ticket Contract is to require that any lawsuit be filed in a specific venue, forum, state or city. For example Carribean cruise companies frequently require suit be filed in Miami and the passengers of the Italian cruise ship, Costa Concordia that ran aground with loss of life were required to file in a place in Italy. Again, the recommendation for Cruise Passenger Accident Victims is to locate the Ticket Contract and know its requirements so that they can determine whether this provision is enforceable.
The most disappointing provision in the Ticket Contract is often an attempt to deny legal responsibility for passenger excursions. When one purchases a cruise, a passenger buys more than transportation on a boat. The passenger buys the services of a professional organization to provide guidance as to appropriate and safe travel activities and to steer the traveller away from unsafe activities. Excursions sold in conjunction with the cruise contain an implicit endorsement by the Cruise Company. The Cruise Company's legal responsibility for the actions of its excursion partners will depend on the specific facts of the excursion, the written agreements with the excursion provider, and other facts.
If you have the misfortune of being an accident victim, you have to play your hand smartly. See WWW.JUNELAWYER.COM.
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Cruise passengers who become accident victims while on an excursion need to pay special attention. Their claims can be treated differently from the claims of other accident victims to the detriment of the Cruise Passenger Accident Victims.
The most important document affecting Cruise Passenger Accident Victims rights is the Ticket Contract. The "ticket"is more than a stub, more than a boarding pass, and is long enough that you know it has been written by the cruise's lawyers. Hard copies of the Ticket Contract may be provided passengers but, increasingly, the Ticket Contract is only provided online or electronically. In the end, the Ticket Contract is written by the Cruise Company for the protection of Cruise Company if the Cruise Passenger has a dispute.
The Ticket Contract commonly attempts to change Cruise Passenger Accident Victim rights in 3 ways. One way is a Contractual Statute of Limitation. The language of the Ticket Contract will require the Cruise Passenger Accident Victim to present a claim in a period shorter than Alaska's 2 year statute of limitation and I have seen periods as short as 6 months when the Cruise Passenger Accident Victim is focused on medical treatment and controlling his losses and before he is able to focus on compensation for those losses. Interestingly, on one occasion, the Alaska Supreme Court ruled that this type of conduct is unenforceable. But there is no downside to the Cruise Company raising the defense and zealous advocacy will trump more humanitarian principles. Because its better to avoid this defense if possible, the recommendation for Cruise Passenger Accident Victims is to locate the Ticket Contract and know their rights.
The second attempted change of the Ticket Contract is to require that any lawsuit be filed in a specific venue, forum, state or city. For example Carribean cruise companies frequently require suit be filed in Miami and the passengers of the Italian cruise ship, Costa Concordia that ran aground with loss of life were required to file in a place in Italy. Again, the recommendation for Cruise Passenger Accident Victims is to locate the Ticket Contract and know its requirements so that they can determine whether this provision is enforceable.
The most disappointing provision in the Ticket Contract is often an attempt to deny legal responsibility for passenger excursions. When one purchases a cruise, a passenger buys more than transportation on a boat. The passenger buys the services of a professional organization to provide guidance as to appropriate and safe travel activities and to steer the traveller away from unsafe activities. Excursions sold in conjunction with the cruise contain an implicit endorsement by the Cruise Company. The Cruise Company's legal responsibility for the actions of its excursion partners will depend on the specific facts of the excursion, the written agreements with the excursion provider, and other facts.
If you have the misfortune of being an accident victim, you have to play your hand smartly. See WWW.JUNELAWYER.COM.
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