Issues in Litigation (Continued from page 34)
through the crawlspaces, but he sees Mike wincing and taking extra breaks by himself, when he never used to do that.
8. Maximize hard numbers. When you can put numbers on the board, which jurors will already have in their notes from the evidence, you will more likely see those numbers again on the verdict sheet. It is the intangibles which prove more difficult. Consider using a vocational rehabilitation ex- pert. Understand that juries want people to help themselves and get better. The very term “vocational re- habilitation” captures the jury’s values and beliefs, while, at the same time, it blunts the inevitable defense sug- gestion of malingering. The jury
needs to understand that your client doesn’t want to be injured and wants to go back to work. These experts tend to be well received by juries, and are identified as less partisan than others. Perhaps Mike’s doctor thinks that Mike really shouldn’t keep work- ing as an electrician, due to the physical demands of the job. A vo- cational rehabilitation expert can identify the fields of work for which Mike may be qualified, and quantify the cost and duration (time lost from work) of any additional training nec- essary to obtain work in the new field. If, unfortunately, that field won’t pay as well, your expert can calculate the incremental loss in in- come over time. You now have more hard numbers to put on the board.
9. Beware the “DME” Doc. Although the term “IME” has become widely
accepted, a more accurate term is “DME” as the doctor is not “inde- pendent,” having been hired by the defense. Too many plaintiffs’ attor- neys want to argue medicine with the defense doctor. Big mistake. They know more medicine than you, and they like to lecture. If the experts have some shop wear, expose it, but treat them cordially.
The standard in-
quires are fine — the number of DMEs done per month or year, the fees earned, relationship with defense firm, only one visit, the length of the visit, not for purposes of treatment, etc. If you have done your home- work, you’ll know the answers to these questions and can pose them in box form as statements to be agreed with, rather than points of contention. Finish strong and walk away. Instead of evincing disgust and condescension toward the DME doc in your closing, you can calmly sug- gest to the jury that the doctors they have heard from approached this case from two different perspectives. One is a treating doctor, who saw your client many times and asked, “How can I heal this patient?” One is in the DME business, does a ten minute inspection 2 years after the accident and asked, “What can I find that will help the defendant/law firm/insurer?”
10. Dirty fingernails experts. Depend- ing upon the case, you may really need a mechanical engineer or a met- allurgist, but consider alternatives. How about a guy from the bicycle shop down the street who has as- sembled 300 of these bikes, and can explain that the lock washers on the fork keep the front wheel from fall- ing off? I saw a very effective use of a body shop manager in a case where a compact pickup truck was struck from the rear, producing a modest dent in the back bumper. He ex- plained to the jury that pickup trucks have a ladder frame and rigid bumpers, unlike modern cars with unibody construction, crush zones and impact absorbing bumpers. That was why he often repaired dents in the cabs of the trucks (such as the other dent shown in the photo of the cab of this truck) involved in rear- end collisions, where the truck’s frame sprung to push the bed for- ward several inches to hit the cab and then sprung back. Once the jurors understood that the impact was
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