Current Feed Content from 10 Oct 08 07:14
Trial Tip For Alabama Lawyers - Best Closing Argument?
Sat, 04 Oct 2008 14:14:54 -0600We have previously mentioned how much we like the weekly Elliott Wilcox articles about trial strategy and this week is not different. It concerns stating your weakness first in closing and then saying "but" and then flow into your stronger argument. Give it a read, and the comment by Bob Gerchen which has a different take, and decide for yourselves if this is a good strategy to use in Birmingham and other counties around here.
Important Eleventh Circuit Case On The Effect Of Bankruptcy On Personal Injury Claims
Mon, 18 Aug 2008 19:02:33 -0600Ronald Miller, Jr. has an excellent post on his blog about the recent Eleventh Circuit case about people going through bankruptcy who do not list all assets, including potential lawsuits. Read the post and the case itself as these are good reminders of how careful we have to be when dealing with clients who are in bankruptcy.
Fascinating NY Times Study On Settling Versus Going To Trial
Sat, 09 Aug 2008 07:25:22 -0600The NY Times has a very interesting article about a study that was conducted to find out whether parties to a lawsuit typically make the right or wrong decision about going to trial. This only looks at the money aspect - did the plaintiff get more or less money and did the defendant pay out more or less money. There are, of course, other aspects than just money - for example a party's reputation may be at stake at the trial may be worth the risk. But this is an interesting article to consider for both lawyers and parties.
Using Summary Judgment In Auto Cases Against Defendants
Fri, 08 Aug 2008 09:33:07 -0600Traditionally summary judgment has been used against plaintiffs in Alabama car wreck cases (and other types of personal injury cases) by defendants. Defendants have used this device to narrow the issues and to remove from the jury's consideration theories such as wantoness that might support punitive damages. There have been times when it would be appropriate for the plaintiff to use the summary judgment approach against the defendant but traditionally we did not want to do that - we thought it was better to talk about liability rather than just have a trial on damages. This would occur in a typical rear-ender case.
Experience in the last couple of years has taught us, however, that it is best to win whatever can be won before standing in front of the jury. We have had situations where a juror may decide rear ending someone is not negligence and that affects the ultimate award the jury returns.
Our approach now is to use this device against defendants. An excellent discussion of this approach is found in the Baltimore Injury Law Blog's recent post on "Offensive Summary Judgment In Injury Cases" by John Bratt.
Trial Tip - Past Recollection Recorded
Mon, 04 Aug 2008 18:32:16 -0600Elliott Wilcox has a short article that really captures the meaning of this somewhat obscure rule of evidence. This is used when your witness at one time knew the answer, and recorded that answer in writing, but now cannot remember it. Even when showed the document there is still no memory. What do you do?
Read this fine article for the answer and sign up to get these trial tips from Elliott delivered to your email every Friday. We look forward to them every week.
Deposition Tip - When The Witness Answers A Question Not Asked
Thu, 17 Jul 2008 18:20:11 -0600Sometimes a witness will answer a question that you did not ask. This is sometimes done intentionally and sometimes it is unintentional. For example, in a car wreck case the defendant driver may be asked:
"When did you hit your brakes before the impact?"
The answer may be "I was always going under the speed limit."
That is an answer that was not asked for - instead the defendant was asked about when he hit the brakes - not how fast he was going. Normally the best approach is to say:
"Thank you. Now my question was actually when did you hit your brakes before impact."
The Illinois Trial Blog has a good post today on this subject and has some excellent suggestions on how to proceed. Depositions usually have some of these moments in them and its always good to have some options on how to proceed.
What Is Vicarious Liability In Alabama?
Tue, 15 Jul 2008 02:27:11 -0600Vicarious liability often comes up in lawsuits in Alabama, particularly against trucking companies. We are often asked by clients who have done some research before hiring a lawyer what this term means in general and what it means for their case in particular.
The simplest meaning of vicarious liability (or also known as "respondeat superior") is that one person (the master or principal) is held legally responsible for the tort or wrongful act of another (the servant or agent). We will discuss in another blog post the idea of "negligent entrustment" which is another manner in which one person can be held legally liable or legally responsible for the wrongful acts of another but generally vicarious liability is how this occurs.
While there are certainly exceptions to this the basic gist is that an employer or principal has hired an employee or agent and if that employee or agent commits a tort while working for the employer or principal, then the employer or principal is liable. So, if a truck driver runs a red light while driving for FedEx, for example, then FedEx is responsible for that wrongful conduct. It doesn't normally matter if FedEx tells its drivers not to run red lights. It doesn't matter because FedEx is getting the benefit of having its employees act on its behalf and it must compensate those Alabama residents who are injured by the negligence of FedEx employees.
The test is whether the employee or agent or servant was "acting in the line and scope of his or her employment (or agency)". If so, then normally the employer or principal is liable. If not, then there is normally no liability.
Anytime someone in Alabama has been injured in a car wreck or truck wreck, we always want to know if the person who was negligent was "on the job" or running an errand for somebody else as that other person or company may be responsible. This is critically important as often times the negligent person does not have insurance or only has the minimum amount ($25, 000) but the principal or employer may have enough to fully compensate our injured client.
Please feel free to contact us if you have any questions about this or your particular situation if you do not already have a lawyer.
The Ten Worst Insurance Companies Of America Include...
Mon, 14 Jul 2008 19:13:25 -0600The American Association For Justice has released a report on the top ten worst insurance companies in America. This is a lengthy report that we recommend you review.
If you live in Alabama and are having any issues with insurance companies, please feel free to contact us.
What Is Mediation In Alabama And How Does This Help Me?
Fri, 11 Jul 2008 12:04:02 -0600One of the first questions clients often ask us is "Will I have to go to court?" The short answer is "Maybe". Very lawyer-like answer, I know.... But it is true - if the case is not dismissed or not settled, then it will go to trial.
One of the best ways the personal injury and fraud cases get settled is by "mediation" - which is where all the lawyers and parties gather in the mediator's office in separate rooms and the mediator goes back and forth between the parties to bring resolution to the case. There are different formats but here is a basic outline of the process:
1. It is voluntary on whether you settle your case.
2. The mediator is normally an experienced trial attorney who has the respect of all the parties to the lawsuit.
3. Everyone starts off in the same room and the mediator goes over the procedure and let's both sides make an "opening statement" if they wish.
4. Then the parties are sent to separate rooms with the lawyers and the mediator begins the work.
5. The mediator will go to one room, discuss the case - its strengths and weaknesses, and then get an offer or a demand.
6. Then the mediator goes to the other room, conveys the message and the number and then discusses with that party the strengths and weaknesses of the case.
7. The mediator gets a response and then moves back to the first room.This is a simplification and there are all sorts of interesting things that mediators do to bring the parties to a point where the case is settled.
Keep this in mind if you are looking at filing a lawsuit - this is one tool that experienced lawyers use to resolve cases and allow you to control the outcome of the case - as opposed to having a jury or judge control the outcome of the case.
What Is A Wrongful Death Case In Alabama?
Wed, 09 Jul 2008 07:50:49 -0600In the "olden days" if someone committed negligence and the victim died from the negligence, the negligent person walked away and could not be sued. The reason is that the victim's claim "died with him". This, fortunately, was changed so that if someone is killed as a result of another's negligence, a "wrongful death" claim can be brought against the wrongdoer.
In Alabama the estate of the victim must bring the claim and this is done by the personal representative of the estate. Normally this is the executor named by the will or the administrator if there is no will.
Alabama is unique among all other states in that only one type of damages is recoverable - punitive damages. Other states take into consideration the income of the victim, the impact on the victim's family, etc. But not our dear state - we only consider punitive damages. Here is where the oddness comes in:
We have tried cases under the laws of another state that allow the family to testify to their grief, their loss, etc. In our cases tried under Alabama law, none of that comes into evidence. The family can not testify as to the loss they have suffered. Instead, the entire focus is on the wrongful act of the negligent party and then damages are awarded to punish that negligent person and to discourage or deter others from doing the same type of wrongful conduct.
There are other aspects that come about in a wrongful death case such as if the victim files suit and then dies of the injuries. We will be happy to discuss with you any questions you might have about how Alabama wrongful death cases operate and what it means to you in your own unique situation.
Trial Tip - Before Trial Talk Less And Listen More
Wed, 09 Jul 2008 06:04:01 -0600Elliott Wilcox recently wrote an article entitled "Do you talk too much before trial?" and every lawyer who tries cases should read it and every client who has a case should read it. Both groups should apply it.
The gist of the article is that if we boast about our strengths or our opponent's weaknesses before trial, we may be in for a nasty surprise. The same is true of settlement discussions and all other discussions before we have actually won the case. Clients sometimes talk when they shouldn't and reveal case strategies or weaknesses to others.
Here is the concluding advice we should all heed:
Your opponents probably love to brag about the strengths of their case or the weaknesses in your case. Next time, rather than disagreeing with them, quietly listen to what they’re saying and encourage them to boast. Play “dumb as a post” and see what they say. As the great Yogi Berra said, “You can observe a lot just by watching.” Don’t get drawn into an argument with them trying to justify the strength of your case or dispute the strength of theirs. If they try to pick a fight, just give them noncommittal responses like, “You may be right, ” and let them continue boasting.
You’re trained to battle in the courtroom, so it won’t be easy to suppress your natural instinct to respond in kind, but it’s something you’ll have to do. Then, after they’ve finished boasting, find a way to shore up your weaknesses or better prepare for their strengths. If you do that, then you can brag and boast when it really matters… After you’ve won your case!
Trial Tips - Reframing Your Client's Story
Mon, 07 Jul 2008 01:54:47 -0600Elliott Wilcox has a great site devoted to trial tips and his latest article is on "re-framing" the story to benefit your client. He uses the story portrayed in the Wizard of Oz and then in the "re-framed" story Wicked (which is coming to Birmingham in April 2009 as my kids remind me).
Read the entire article but here is the final part and Elliott makes a very strong case for this type of strategy in trial:
For example, think about a case involving police brutality. Most of your typical jurors think that the police officers in their community are good, honest people doing a difficult, thankless job. If you try to frame your case as a story of “cops are bad, ” then you’re swimming upstream, fighting against the jurors’ instinctual beliefs. However, if you reframe your story as “Cops are good, and the best way that we can continue to protect the good cops is to point our fingers at the bad ones, ” you can use their instinctive beliefs and attitudes to your benefit. Same facts, different story.
The next time you go to court, your client will be depending upon you to tell (and to sell) his story to the jury. Don’t merely recite a bland story for them — pick through the facts so that you can tell the most persuasive story possible. Don’t accept the common thinking that your client is “wicked” — spend as much time as necessary thinking about how to reframe your facts, and you’ll be able to tell a story that portrays your client in the most positive (and persuasive) light possible.
Well said.
Deposition Tip - Move On After Getting A Good Answer!
Sat, 05 Jul 2008 09:21:56 -0600The excellent South Carolina Trial Law Blog has referenced a great article by Illinois Trial Practice Blog on not asking a witness again about an area that you have received a good response... It is always tempting to try and get an even better answer but we should remember that once we get a good response it usually is wise to leave it alone.
Here is a brief excerpt from the post at the Illinois Trial Practice Blog:
Why give the witness a chance to change or explain his answer? I can think of only a couple of reasons, neither of them very good: (1) You're not sure whether you've pinned the witness down or (2) you can't remember what the witness said.Both of these possibilities should be dealt with on the first go-round. First, pin the witness down after you get good testimony. Second, take good notes. Then move on to the next area of questioning--never to return until trial, when it will be much easier to impeach the witness than during the deposition when you have no transcript.
Good advice.
Great News For Alabama - Verdict Against GlaxoSmithKline And Novartis For Overcharging Alabama
Thu, 03 Jul 2008 09:14:36 -0600On Tuesday a jury returned a verdict in Montgomery, Alabama, in favor of the State of Alabama against GlaxoSmithKline and Novartis for $114 million. Read more of this fascinating story at the Beasley Allen website here.
Here are some more articles about this verdict that the Beasley firm obtained on behalf of Alabama - a news conference is set for today and the Attorney General has issued a press release about this verdict.
Deposition Tips - Boxing In Or Being Boxed In
Tue, 01 Jul 2008 15:30:49 -0600A great blog is The Illinois Trial Practice Weblog and this post discusses boxing witnesses in. If you are going to be deposed, you will find this interesting to know what to expect from a good lawyer. You may also want to check out our other posts on deposition tips.
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