Part 1 – Preparing Yourself
Review all of the following:
Pre-crash med records, tab all positives and pitfalls
(positive = entries of no pain; pitfalls = entries of pain) Post-crash records, tab all positives and pitfalls
(positives = proof of injury, pitfalls = things defense will seize on) Facebook posts
Surveillance (if you can get them in advance)
Repair bills and vehicle damage photos
Disability filings
Employment records (to look for pitfalls)
Tax Returns (if making a wage loss claim)
Client’s interrog. answers or prior statements (to avoid inconsistencies)
From your review, create the following:
A medical summary/timeline
A list of all positives
A list of potential pitfalls and solutions
Part 2 – Preparing your Client
Ask about and make a list of positives:
Impressive parts of their life story
(military service, volunteer work, accomplishments)
Detail the impact of injuries:
- Frequency of pain or discomfort
- What causes it to flare up
- Routine adjustments/ choices they have to make
- The little things that no one can see
- Impact on sleep (getting and staying comfortable)
- Their new baseline
- Feelings associated with loss of baseline
- Things they do still do, but the experience is different
- Things they don’t do anymore
- Fears for the future
(as the natural aging process overlays on top of their injuries) - How it feels to be treated as if they’re not really hurt -
Give them homework to create a list of daily effects
(Get it back, cull thought it and discuss with client)
Make a list of potential pitfalls and solutions:
If they haven’t had surgery, talk about why
(example: putting it off as long as they can, knowing the day is coming) If there are gaps in treatment
(examples: lost hope for a cure, getting on with life, other obligations) If there are prior injuries, explain the difference from this injury If there are subsequent injuries, explain the difference from this injury Talk about any entries in medical records which the defense will seize on
Inform them about the importance of:
Full disclosure as to prior injuries, accidents, and pain complaints Not overstating or understating pain, be accurate
Be careful with pain scales
Dressing for success at depo
Making a good impression with their demeanor
Listening to questions and thinking before answering
Giving direct answers, without rambling
Prep them similarly for their visit with the defense doctor: Don’t make things seem worse than they are
Don’t change how they walk
Give maximum effort
Be honest about all prior injuries and subsequent ones
[The examples given throughout are to demonstrate types of responses you may get, not to suggest answers that should be given.]
POST-DEPO CHECKLIST FOR YOUR CLIENT
Make a list of things to do and start the process right away: - Documents to gather
- Witnesses to talk to or depose
- Motions to file
-
Make a list of soundbites
(positive facts you may use in negotiations or at trial)
Make a list of newly discovered potential pitfalls
As to each, ask yourself:
- Why are they wrong about the meaning of that fact? - If they are right on a fact, why are we still right overall? Then make a plan to deal with them:
- Eliminate them (motions in limine)
- Own them
- Put them in context
PRE-DEPO CHECKLIST FOR TREATING DOCTORS
Part 1 – Preparing Yourself
Review:
- Client’s depo prep file with all the lists
- Medical summary
Make a list of areas to cover with Dr. (positives and pitfalls)
Part 2 – Pre-depo Meeting With Doctor
Make sure that Dr. has all relevant records including radiographic films
Cover the following:
Items on your list of areas to cover (positives and pitfalls) Prior and subsequent injuries
Tabbed medical records
Relevant radiographic records
Surveillance/Facebook posts/car pictures
All opinions:
- Causation (new/aggravation)
- Permanency
- Past medical expenses (reasonable, related and necessary) - Life care plan
- Cover legal standard language
- Any aggravation (describe how it was made worse)
POST-DEPO CHECKLIST FOR TREATING DOCTORS
Make a list of things to do and start the process right away: - documents to gather
- witnesses to talk to or depose
- motions to file
Make a list of soundbites
(positive facts you may use in negotiations or at trial)
Make a list of newly discovered potential pitfalls
As to each, ask yourself:
- Why are they wrong about the meaning of that fact? - If they are right on a fact, why are we still right overall? The make a plan to deal with them:
- Eliminate them (motions in limine)
- Own them
- Put them in context
CHECKLIST FOR DEFENSE DOCTORS
Part 1 – Preparing Yourself
Get rog answers as to money made from defense:
Review:
- Defense doctor’s report
- Medical records summary
- Post-depo checklists from our client and treating doctors - Any critique from exam if taped
Create a masterplan for taking the depo which includes: - A list of topics to cover
- Gathering sound-bites for opening and cross-exam
- How to deal with downplaying or denying injuries
- Exposing bias
Part 2 – Taking Depo of Defense Doctor
Bring with you:
Tabbed medical records and records summary
Relevant radiographic reports
Defense doctor’s report
Rog. Answers as to money made from defense
Any critique from exam if taped
The masterplan (check topics off as you cover them)
A legal pad to keep track of answers to be followed up on A legal pad for post-depo things to do
Get answers that will help us:
Are you suggesting Ms. Jones is malingering
The crash likely did cause harm, strain/sprain (to shoot down low impact) Treatment that was reasonable, necessary and related Degeneration is nothing more than normal aging
Can get herniation from car crash
Can aggravate herniation in crash
Plain x-rays don’t show herniated discs, MRIs do
Did he review films or just reports
If he did read the film, does he disagrees with treating radiologist
Extreme answers (shows he has an agenda)
Not playing with full deck (missing key info)
Misinformed (misread records or depos)
Isn’t playing straight (cut & pasting, or cherry-picking records) Pin down that’s all his opinions
Bias questions
- Charges in general and in this case
- Number of times worked for this defense law firm and lawyer - % for defense
- % of income from being hired by one side in lawsuits - $ from defense
- Almost always says no permanency
- Almost always says it is sprain/strain that resolved - Almost always says pain from degeneration
Establish basis for “it’s all just a big coincidence” cross - No pain or treatment before the crash (for x years) - Pain and treatment started at the time of crash
- Pain has not gone away, it’s the exact same pain
For defense Radiologists
- Get slide numbers he is relying on from MRI
- Consult with treating radiologist or expert
- Get admission he did no clinical correlation
General reminders:
- Listen to answers
- If you don’t understand, don’t be proud, ask until you do - Reduce longwinded good answers down to sound-bites - Pin down (these are all of his opinions)
POST-DEPO CHECKLIST FOR DEFENSE DOCTOR
Make a list of things to do and start the process right away: Documents to gather
Witnesses to talk to or depose
Motions to file
If he came up with something new that the treater didn’t cover - Discuss with treater
- Notify the defense our expert/treater has new/rebuttal opinions
Make a list of soundbites
(positive facts you may use in negotiations or at trial)
Make a list of newly discovered potential pitfalls
As to each, as yourself
- Why are they wrong about the meaning of that fact? - If they are right on a fact, why are we still right overall? Then make a plan to deal with them
- Eliminate them (motions in limine)
- Own them
- Put them in context