Episode

67 – Brendan Lupetin – Masked Justice: Part 1

In this Trial Lawyer Nation podcast, Michael sits down with trial attorney Brendan Lupetin out of Pittsburgh, Pennsylvania. Brendan, a self-proclaimed “trial nerd,” is one of just a handful of attorneys who has tried a case in the era of COVID-19, receiving a $10.8 million dollar jury verdict on his medical negligence case. They’ll discuss Brendan’s background, the details of the case, how he prepared, what it was like trying a case during a pandemic, and his advice for lawyers and courts across the country to start having jury trials again.

The episode begins with an overview of Brendan’s background and how he became the successful trial lawyer he is today. He explains how he began by trying about 10 bad cases where he lost “in brutal fashion,” and finally found his first victory with a $500 rear-end car case verdict. Since then, he’s focused on reading everything and anything he can on trials. Now, he’s tried 40 cases to jury verdict and has found great success in the last 10.

As a self-proclaimed “trial nerd,” Brendan spends most of his free time reading and studying the work of other great trial lawyers and legal scholars, citing Rick Friedman, Keith Mitnik, David Ball, Artemis Malekpour, Jude Basille, and many others. He and Michael discuss the difficulties of implementing all the trial theories and strategies available today, but Brendan explains how his approach is to blend them all together to find what works best for him. A sentiment echoed by Michael and certainly a recurring theme on the show.
Michael then asks Brendan about the details of the medical malpractice case he recently tried. While the difficulties of trying a case during a pandemic are apparent, Brendan insists his job was made easier by the fact that this was truly a great case. Brendan’s client, a 41-year old father and project manager, went to the hospital for an MRI. He had an allergic reaction to the contrasting chemical they injected him with. While the hospital had policies in place to protect patients in the event of an allergic reaction, none of those policies were followed and Brendan’s client was unfortunately left with a severe brain injury.

Michael then notes that Brendan ended up with such a simple theory, which Brendan explains was a long road to get to. They originally had 3 defendants, but after numerous focus groups and hiring John Campbell of Empirical Jury to run a study after Brendan “serendipitously” listened to his podcast episode 3 ½ weeks before the trial, they decided to drop one of the defendants because he complicated the story. Michael agrees that this was a smart move, quoting Rodney Jew by saying, “If you chase two rabbits, you won’t catch either one.”

Brendan also kept in mind Mark Mandell’s case framing theory throughout the trial and describes how he was tempted to dispute the defense’s timeline of events because he found they were about a minute and a half off. But after employing the case framing theory, he and his partner decided to leave that out because it drew away from the main focus of the case – “Policy violations caused delay, and delay is never good in an emergency.”

Michael then asks Brendan what else he’s learned throughout his study of advocacy that he used in the trial, to which Brendan simply replies, “everything.” He describes his journey to crafting the perfect opening statement, employing techniques from David Ball, Nick Rowley, Keith Mitnik, and many others. He also recorded the final product and shared it on his YouTube channel. It’s clear throughout the episode that Brendan is truly a lifelong learner and is constantly honing his craft as a trial lawyer.

After gaining insight into the case and Brendan’s trial techniques, Michael asks the question on everyone’s mind – What was it like trying a case during the pandemic? Brendan first gives credit to Judge Jackie Bernard and the court system for setting up an incredibly safe and effective trial plan, and emphasizes the need for more courts to follow suit and begin holding jury trials again.
The court began by sending out a questionnaire to potential jurors which asked hardship questions, immediately excluding anybody who had health concerns or was extremely uncomfortable attending a trial because of COVID-19. Voir dire was held in a huge courtroom with 45 people in the room, and 45 others in a separate room watching on video. The process was so streamlined and well planned that they were able to select the jury in less than four hours.

Once the trial began, this attention to detail became even more evident. Everybody wore masks for the duration of the trial, there was plexiglass around the judge and witness stand, and the jury was spread out around the room in a way so creative you have to hear it to believe it. By using these precautions, the trial went on without a hitch and with a significantly lower risk of infection than a traditional trial set up.

Brendan and Michael agree that without a significant threat of a trial, their big cases won’t result in a fair settlement. They discuss the immediate need for courts to find a safe solution to continue jury trials and the need for plaintiff lawyers to work together to persuade their courts to do so.

They end the episode on a surprising note. Brendan explains how everybody thinks trying a case during the pandemic is this crazy experience, but he said it really didn’t feel very different from trying a case in a courtroom you haven’t been in before. You always need to adapt to a new judge’s rules, a new courtroom set up, etc. This wasn’t much different than that. And by implementing the safety precautions Brendan described, courts around the country can begin to open and allow the pursuit of justice instead of pushing trials off further and further. As Brendan poetically put it, “Hope is not a plan.”

If you’d like to learn more from Brendan Lupetin, visit his firm’s website and subscribe to his YouTube channel.

This podcast also covers Brendan’s favorite closing strategy, obtaining a representative jury during COVID-19, the “freaky” accurate results of Brendan’s Empirical Jury study with John Campbell, and so much more.

 

Interested in hearing more COVID Era trial stories? Check out our other Masked Justice episodes:

 

Bio:

Brendan is a trial lawyer in Pittsburgh, Pennsylvania.  He focuses on medical malpractice, product defect and personal injury law.  He loves helping the people he represents and trying their cases to jury verdict when necessary.

Brendan is a trial nerd and truly enjoys reading trial books, studying trial videos and seminars, watching trials and “talking shop” with fellow trial lawyers.

The son of a doctor and trauma counselor Brendan learned early on the importance of compassion, empathy and to always stand up for what is right, no matter the consequence.

Following a four-year tenure as a scholarship swimmer, Brendan received his B.S. from the University of Pittsburgh in 2000 and his J.D. from the University of Pittsburgh School of Law in 2005.
During his career, Brendan has tried numerous cases of all types to jury verdict.  Over the course of the past several years, Brendan has obtained numerous multi-million-dollar verdicts for his clients – all of which far exceeded the highest offers of settlement.

What Brendan loves more than anything, however, is spending time with his wife and high school sweetheart Lacey and their three sons Nathan, John and Owen.

 

66 – Dorothy Clay Sims & Dr. Oregon Hunter – The Lawyer-Doctor Duo: Exposing Deceptive Defense Doctors

In this Trial Lawyer Nation podcast, Michael sits down with attorney Dorothy Clay Sims and Dr. Oregon Hunter to discuss their research on defense-paid medical witnesses. They’ll discuss how the pair became involved in this research, Dorothy’s book “Exposing Deceptive Defense Doctors,” Dr. Hunter’s published study on the subject, and take an in-depth look at Dorothy’s favorite tactics for exposing deception in defense doctors.

The episode begins with a brief overview of what Dorothy and Dr. Hunter each do and how they became involved in it. Dr. Hunter focuses on watching video tapes of defense medical exams and generating charts of everything the “expert” lied about in those statements. In his initial study, he’s sad to say they lied or misrepresented the facts 100% of the time.

Dorothy explains how she used to have a large worker’s comp practice in Florida when she noticed a pattern – 60 of her clients were found to be malingerers by a Harvard-educated, smooth talking defense doctor. He was giving them all the same test, the MMPI (Minnesota Multiphasic Personality Inventory). Dorothy decided to sit down with the doctor who first created the test and found that the defense doctor was completely misrepresenting the results of the test. She even got the doctor who created the test to sign an affidavit saying, “If he was a student, I’d flunk him.”

This sparked a deep interest in the subject, and she began researching other tests to see how they’ve been manipulated to serve the interests of the defense. As her work gained more attention, she began receiving phone calls from David Ball himself telling her, “You’ve got to write a book, dammit. You’ve got to do it!” So, she complied and wrote “Exposing Deceptive Defense Doctors,”which Michael describes as “the Bible” for any case where you have a doctor on the other side.

Dorothy goes on to share some of her more shocking findings, from 40% of defense doctors lying about their degrees, to a doctor who was fired for stealing from a poor patient’s medical fund to pay for prostitutes. She also shares some creative resources she uses to find this information and implores all plaintiff attorneys listening to do their due diligence whenever there’s a doctor on the other side trying to discredit their client.

Dorothy then shares her detailed, organized method for marking up her depo notes, allowing her to go into every defense doctor deposition prepared with the pertinent information (and a record of their lies). She has now compiled 30,000 pages of information on thousands of defense doctors, which she is willing to share with any plaintiff lawyer interested.

The conversation shifts to Dr. Oregon Hunter, whose published study on the subject.  He explains how if you look at the medical exams from defense doctors, they will appear at face value as an exam of a perfectly healthy person. But when he watches the video tape of the exam, all he can say is, “Oh my god.” He goes on to share countless examples of doctors who claimed they conducted a test, but either didn’t conduct the test at all or were so sloppy about it that there’s no way they could actually tell if the client was injured or not. He also shares how they’ll often use templates which contain information that has nothing to do with the person they’re examining. For example, a patient’s ankles were described as “normal,” but there was just one issue – the patient’s legs had both been amputated.

Michael then asks Dorothy, what are some other things we need to look out for when they’re “trying to pull the wool over our eyes?” Dorothy shares her experience with brain scans and the defense doctor showing slices of the scan which do not show damage, when there are other slices which show the damage much clearer. She continues with other examples of similar practices with different injuries and concludes by emphasizing the need to always be on the lookout for “false choices.” For example, the defense will say a client who had preexisting arthritis cannot have a herniated disc from the crash, when in reality you can have both.

Michael continues on this note by sharing a story of a radiologist who attempted to re-define the word “trauma” for the sake of the defense argument. After finding the book the doctor was referencing (MRI of the Brain and Spine by Scott Atlas) Michael uncovered a paragraph which states, “there is no legal or factual basis to date when a herniation happened from looking at an MRI.” After bringing this up in the deposition, he effectively ended the radiologist’s testimony career.

The episode concludes with Dorothy’s final words of advice for deposing defense doctors. She recommends numerous helpful strategies, including having the plaintiff present when the doctor calls them a liar, having your own doctor present to induce what Dr. Hunter calls “the halo effect,” and finally (and most importantly) do your research. Does the doctor say they are board certified? Look into the organization (one even certified a cat). Does their CV say anything about Harvard? Definitely look into that, as she’s found 80% of defense doctors with Harvard on their resume are lying about it. Utilizing this advice and the excellent resources mentioned in this episode will ensure that even if the defense doctor is lying through their teeth, you won’t let them get away with it.

This podcast also covers gaining permission to video record defense doctor exams, sociopathy in defense doctors, what “grossly normal” on a report really means, the importance of reading the literature the defense doctor cites, and so much more.

You can reach Dorothy Clay Sims via email at dcs@dorothyclaysims.com and through her website at https://dorothyclaysims.com/.

 

Bio:

Dorothy Sims and her team combine decades of experience in medical, legal, and research fields.

On a daily basis, Dorothy consults with attorneys throughout the U.S., to provide methods of expert testimony cross-examination. If an attorney requests, Dorothy can depose experts herself. For more information about her consulting, visit the Consultations page .

Dorothy’s practice includes numerous other projects and philanthropic work. She is frequently invited to in-house seminars for lawyers and law firms on researching and cross-examining. She has given over 350 speeches internationally on medical/legal issues throughout the world and is often invited as the state keynote speaker. She has spoken in almost every state in the United States including Hawaii and Alaska. She has also been a featured speaker in Paris, France, Jaipur, India, and twice in Kyoto, Japan.

She has authored chapters in books with individuals such as David Ball and Don Keenan as well as Dr. Michael Freeman. Dorothy donates a percentage of her book profits various organizations including the American Association for Justice and the International Federation for Human Rights. Her book, “Exposing Deceptive Defense Doctors ” was a best seller for 3 years in a row and went into reprint status soon after publication, unheard of in the industry. She has also authored two children’s books for parents who are injured. The books are available for free upon request. She has also authored articles in national publications to include the Champion MagazineTrial Magazine (The American Association for Justice Journal) most recently on the cover of the December, 2015 issue, and Brain Injury Professional.

About Dorothy Sims

Dorothy received both her undergraduate and law degree from the University of Florida; and studied international law at Oxford University. She is licensed in the state of Florida, US District Court – Northern District of Florida, US District Court and the Middle District of Florida. She has also cross examined experts in many states throughout the US.

Dorothy initially represented miners in Kentucky who were denied black lung benefits. Going down into the bowels of a mine in Eastern Kentucky, she felt vibrations as the miners “shot coal” (exploded portions of the face to loosen the coal). Despite wearing a mask, her trip left her coughing and sneezing coal dust for days; leading to a newfound respect for the dreaded pneumoconiosis suffered by miners who had spent decades in the mines.

After representing coalminers, Dorothy began representing workers who were injured and denied medical care. She co-founded the Florida Workers’ Advocates – the state’s first watchdog over the insurance industry devoted to serving injured – and eventually served as president.

For over a decade, Sims volunteered time to lobby on behalf of the injured and was the first woman to be elected Chair of the Florida Bar Worker’s Compensation Section in its 22-year history. She also served as President of the Marion County Bar Association.

While practicing law, she began to notice an alarming pattern. Forensic experts hired by the other side were reaching conclusions by (1) misrepresenting the science (2) ignoring the science (3) misrepresenting the facts and/or their examination and/or (4) testifying beyond their own training and education.

About Dr. Oregon Hunter

Dorothy’s most recent addition to her team is Dr. Oregon K. Hunter, MD – a medical doctor licensed in Florida – who currently works on cases with Dorothy and other lawyers to determine if misrepresentations are made about the science. If you provide notice to defense counsel, he can attend a deposition as a non-testifying consultant. He can remote in for mediations to explain medical issues to the defense in support of the plaintiff’s case. He watches videotapes of defense exams and provides an analysis for lead counsel explaining what the other side’s expert misrepresented. For an example of an evaluation of a case conducted by Dr. Hunter in which the expert’s exam was videotaped contact us here.

Dr. Hunter is board certified in Physical Medicine and Rehabilitation and practiced medicine in Hawaii, California and Florida. He joined Dorothy’s team in 2015 and is an invaluable asset in reviewing cases.

Dr. Hunter is also available to attend mediations by video and explain weaknesses in defense’s position. Attorneys Evan Lubell (elubell@floridalegalrights.com) and Dan Ramsfeld (dan@ramsdelllaw.com) can be contacted as references for Dr. Hunter’s recent participation in their case.

 

65 – Malorie Peacock – Lessons from a Virtual Seminar: Successful Applications in a Courtroom and Online

In this Trial Lawyer Nation podcast, Michael talks with his law partner Malorie Peacock to discuss his recent virtual seminar, Cowen’s Big Rig Boot Camp. They draw parallels between the seminar and the courtroom, including utilizing camera angles through Zoom, energy management, and how to use slides and graphics effectively. Michael also shares a sneak peek inside his upcoming Trial Guides book on trucking law.

The episode begins with a brief overview of what Cowen’s Big Rig Boot Camp looked like in 2020. While it remained a 6-hour trucking seminar, it was done entirely virtually. Michael describes the multitude of tactics he used to keep the audience engaged, which included celebrity appearances and surprising attendees with actor and comedian David Koechner live.

He notes one of the biggest engagement factors was the use of multiple camera angles and a professional AV crew. Through this, he was able to stand for the presentation and use hand gestures naturally. Malorie and Michael draw parallels between this and a Zoom hearing or trial and agree they’d like to find a way to stand while conducting Zoom hearings. Michael goes as far as to say he’d like to set up a Zoom “studio” in the office in the future, and says he would even hire a professional AV crew again if he had a very big hearing or a virtual trial.

Malorie comments on how surprised she was that utilizing multiple camera angles made such a big difference in the presentation engagement. Michael agrees, and explains how he first heard of this concept from Mark Lanier who utilizes a 3-camera setup for his depositions. When showing depo footage in trial, Lanier will only show the same camera angle for 7 seconds. (This is how they do it in the news media to keep the audience engaged.) If virtual trials move forward, these concepts will all need to be considered to effectively produce a dynamic virtual experience which holds the jurors’ attention.

Malorie then asks Michael a question which must be on everyone’s mind, how did you keep your energy up for 6 ½ straight hours of speaking to a camera without a live audience? Michael notes how similar this was to presenting in a courtroom – you can be absolutely exhausted, but as soon as you step in the room, “you’re on.” He also explains how you can’t be high energy the entire time without coming off frantic and stressing your audience out. The key is to have a range of highs and lows, which serves to conserve your energy and make the highs more impactful.

This type of energy management has taken Michael years to master, and he shares an insightful story from a trial 15 years ago where he learned an important lesson – even if you can’t say everything you want to, you need to slow down and make it about the listener.

Michael goes on to explain his mindset change through the teachings of Carl Bettinger in the book “Twelve Heroes, One Voice.” He used to think it was his job to win the case, but now he knows that’s the jury’s job. And by incorporating this mindset, it’s abundantly clear that the jury deeply understanding the case is much more important than you saying everything you want to say. Malorie then describes her own journey through this, when she was told she speaks very loudly when she’s telling a story she’s passionate about. She realized this comes off as abrasive when the jury isn’t there with her yet and has worked to consciously change this.

Another strategy Michael used to manage his energy during the presentation was the strategic use of PowerPoint slides. He incorporated a variety of both “busy” slides filled with information and simple slides with just a topic or phrase. While presenting the information dense slides, he could be lower energy. But when there was a simple slide, he knew he had to be high energy to carry that portion of the presentation.

This leads Michael and Malorie to discuss the larger applicability of these tactics in the courtroom. When presenting in trial, Michael utilizes completely blank slides in his PowerPoints when he wants the jury to be focused on him. While they both agree more visuals will be necessary in a virtual trial, they recognize the need to incorporate film professionals to make those visuals effective.

On the topic of visuals, they shift to the role of graphics in the courtroom. Michael and Malorie agree that often a simpler graphic is much more effective than an intricate, expensive graphic from a courtroom exhibit company. Michael sums this up perfectly by stating, “If we have to explain the graphic, then we’re losing them.” He’s enjoyed working with his firm’s own graphic artist, and also recommends looking at Upwork and hiring an artist on a contract basis. Malorie adds you can even create some very effective graphics yourself in PowerPoint without spending a dime. This all boils down to the fact that you can’t win a complex case, and while intricate and expensive graphics certainly have their place in the courtroom, they are often overused and frankly a waste of money.

Malorie then shifts the conversation to a discussion of Michael’s upcoming book on trucking law, which Michael previewed during the virtual seminar. One of the major aspects of his research focused on electronic logs for truck drivers, and how they cheat on them. Michael explains how even though truck drivers are allowed to work up to 70 hours a week already, they spend so much time on unpaid activities (deliveries, loading, inspections, etc) they need to cheat in order to make a decent living. Trucking companies have been recommended to pay by the hour or a salary, but they almost always choose to pay their drivers by the mile because it’s better for the company economically.

Michael then describes numerous ways these drivers cheat their logs, including driving on “personal conveyance” time, creating a “phantom driver,” and more which are so intricate they need to be heard to be believed.

Michael and Malorie wrap up the episode with some terrifying facts. Michael spent some time researching drug testing protocols for truck drivers, where he was very disappointed by the current system. Through a plethora of methods, drivers successfully cheat on urine tests and stay on the road. One study indicated as many as 310,000 truck drivers on the road today would fail a hair follicle drug test if given one, to which Malorie replies, “What if that number was commercial airline pilots? People don’t think that way, but they should. These things are huge.”

This podcast also covers Sari de la Motte’s teachings, courtroom models and exhibits, how to catch a truck driver who cheated on their electronic logs, raising the minimum insurance limits for trucking companies, and so much more.

If you’d like to attend Cowen’s Big Rig Boot Camp in 2021 in person or virtually, visit www.BigRigBootCamp.com for live updates.

64 – Mark Mandell – The Case Framing Mindset

In this Trial Lawyer Nation podcast, Michael is joined by legendary trial lawyer and author Mark Mandell. Mark wrote the must-read books “Case Framing” and “Advanced Case Framing.” Michael and Mark take a detailed look inside these books, including what case framing is, how to apply case framing, what “I just can’t get over” issues are, using “echoes” in trial, Mark’s trial closing strategy, and the story of the hardest case Mark ever tried.

Michael begins the episode by asking Mark to describe what case framing is. Mark starts at the beginning and explains how when he first started practicing, plaintiff lawyers were basically in “the dark ages.” Mark began looking for new ways to try cases almost immediately, but found each method he tried had holes in it. Then about 15 years ago, he started to study decision science and put together the basis of case framing.

Mark insists case framing is not just a method. As another great lawyer stated and Mark has since adopted, “It’s more than a model. It’s a mindset.” Mark explains how case framing has become a part of him, and influences everything he does both pre-trial and in trial. When he was first asked to describe case framing in one sentence, Mark struggled initially but then settled on, “Every single thing you present at trial needs to be framed and sequenced in a way that focuses the attention of the jurors on the points YOU most want to make.” He goes on to describe how a case is decided by what it’s focused on, so why would you want to focus on anything else? As Mark astutely summarizes, “A case frame is the heart and soul of the case. It gives the case meaning.”

Mark continues with explaining how a case frame needs to have two qualities. It needs to relate to the facts of the case, and it needs to have universal application in our society. He shares the detailed example of how he first came to understand this from the OJ Simpson criminal trial. Mark lists off the issues of the case and explains how they aren’t case frames. After exhausting these, Mark explains how the case frame was actually wrongful accusation and elaborates on why that is such a powerful case frame to use because of both its power and universal applicability.

Michael then asks Mark to explain the next level of case framing, which Mark named “I just can’t get over” issues. Simply put, it’s an issue that if a jury can’t get over, it’s going to guide their verdict. These issues can come from an almost endless amount of places, but they need to embody that statement.

As a follow up Michael asks what every listener must be thinking, what are some examples of defense “I can’t get over” issues and what can plaintiff lawyers do to overcome them? Mark gives a laundry list of examples and directs listeners to his book “Advanced Case Framing” where he details 16 different ways to overcome them. He briefly explains how to overcome these issues by refuting them or by “substituting them” or “overcoming them” with more powerful issues.

Another aspect of case framing Mark discusses in his books is “echoes.” Marks insists this is actually one of the hardest concepts to understand. An echo needs to either support or defend an issue, or Mark says you shouldn’t use it. It can be a document, idea, exhibit, or many other things that cause a good issue to reverberate throughout the jury’s head throughout trial. Mark explains how people need echoes to fully understand something because nobody can pay attention indefinitely. He then provides several examples of echoes he used when trying a DRAM shop case which he says is the hardest case he’s ever tried. Through this example, he highlights the importance of ignoring chronology and starting the case at the #1 “good for you” issue in the case.

The conversation shifts to a discussion of Mark’s different closing strategies. The first of those is that he never discloses his overall case frame until closing. He has numerous reasons for doing this, including that you need to leave something new to tell the jury in closing – and since the jury always goes into closing arguments undecided on something, what could be better to present to them than your overall case frame? His other reasons include rebuttal rules and that your case frame can change during trial, based on how it unfolds.

Mark is also known for using questions in his closing arguments, which Michael asks Mark to explain. Mark offers a surprisingly simple answer – people don’t like being told what to do. Mark continues by explaining that when you tell the jury what to do, YOU become the issue. When jurors come up with the answer themselves, “They own that answer now.”  He believes this causes them to go into deliberation much stronger. Michael adds that trusting the jury is both the most liberating and terrifying thing, to which Mark agrees. But, it makes trial a lot more fun AND leads to better results.

Michael and Mark conclude the episode by taking a detailed look at the DRAM shop case which Mark insists is the most difficult case he’s ever tried. Mark walks listeners through the shocking details of the case and explains how he applied his methods throughout. After being told by countless lawyers to drop the case, Mark walked away with a $21.5 million verdict after interest. This story truly needs to be heard to be appreciated.

This podcast also covers Mark’s advice on one of Michael’s more challenging cases, using anchors in trial, secondary case frames, beginning every witness examination with an “I can’t get over” issue, and so much more.

If you’d like to learn more from Mark Mandell, visit his website and purchase his books “Case Framing” and “Advanced Case Framing” here.

 

Guest Bio:

Mark Mandell practices law at Mandell, Boisclair & Mandell, Ltd. in Providence, Rhode Island. He specializes in catastrophic personal injury, wrongful death, medical negligence, dram shop and products liability cases.  He is triple Board Certified, nationally.  His certifications are in the areas of Civil Trials, Civil Pretrial and Medical Negligence Litigation.  Mr. Mandell is currently listed in “The Best Lawyers in America.” He is a member of the Inner Circle of Advocates.  Mr. Mandell is a past president of American Association for Justice, Rhode Island Trial Lawyers Association, and The Rhode Island Bar Association.  He is the immediate past chair of the Board of Directors of the Roger Williams University School of Law. He has more million dollar verdicts and verdicts of over $10,000,000 than any other lawyer in Rhode Island history.  Mark has written two books “Case Framing” and “Advanced Case Framing”.  He has also published 24 articles in national and state trial law journals on a variety of subjects and has lectured in 48 states.

 

63 – Sonia Rodriguez – “You Got Me”: Discrediting Defense Paid Opinion Witnesses

In this Trial Lawyer Nation podcast, Michael sits down with his law partner Sonia Rodriguez for an overview of deconstructing defense-paid opinion witnesses. They highlight many of their favorite strategies to use when dealing with a witness who won’t answer your questions, their favorite unexpected “gifts” from witnesses, and the importance of why someone becomes a defense-paid opinion witness in the first place. This episode is full of shocking real-life examples you don’t want to miss.

Michael begins the episode by highlighting the defense strategy to hire someone to discredit their client. He asks Sonia, “What do you do to deal with this?” Sonia describes the first action she takes, which is reviewing what organizations they show they are affiliated with on their CV (curriculum vitae). Most professional organizations have ethical guidelines which these witnesses must abide by. She’s found success in displaying these guidelines to the witness during the deposition and using them to prevent the witness from stating biased information.

Michael then describes the common narrative these witnesses all portray which every plaintiff attorney listening is sure to relate to. Any injury from the crash goes away in 6-12 weeks, but any injury from 10 years ago is most certainly the cause of everything today, even if they haven’t been to a doctor for it in 9 years. Sonia has combatted this in medical witnesses by focusing heavily on the client’s description of pain. Most doctors will admit that the patient’s description of pain is a very important part of the diagnosis. She uses this information to put the witness in a position of saying, “the records aren’t adequate,” which does not play well with the jury.

The conversation then shifts to the difficult but highly effective strategy of turning the defense paid opinion witness into your witness. Sonia explains why this is so difficult to do successfully, but has maneuvered these difficulties by focusing her depos on what she knows she can get from them. She shares an example of this where she was able to build up the witness’s credibility, then use it to get some simple, clear concessions.

On the other hand, Michael says his primary goal in every defense paid opinion witness depo is to make them his witness. Instead of fighting with them in an area where he does not have credibility, he spends his time researching the witness, reading prior depositions, and trying to find what they will give you based off those prior experiences.

Michael elaborates further on the importance of reading past testimonies by sharing a shocking example with a biomechanical engineer who claimed his client could not possibly have a herniated disc from the crash. Before trial, Michael read several of his previous depositions and went through all of the literature the witness cited in the case. He then shares an example of how he used those prior depos to discredit the witness, how his voir dire helped him do this while also relating to the jury, and why reading the literature can help your case.

Sonia wholeheartedly agrees and gives her real world experience using the literature to your advantage. She shares an example where a neurosurgeon used a study about the prevalence of herniated discs to claim her client’s pain wasn’t caused by the crash. After reading the article, Sonia found that it only referred to a specific type of herniated disc, which was not the type her client had. After revealing this, all the witness could say was, “You got me.”

Another all too familiar roadblock is the witness who just won’t answer your questions. While Sonia and Michael both agree this will always be a barrier, they both share insightful techniques on how you can overcome this. Sonia does this by always recording the testimony, so she can show the jury the witness was refusing to cooperate or concede to basic things. Michael then offers another strategy he employs with uncooperative witnesses – using basic, fair questions in a true or false format. While you may still need to ask the same question 10 times to get a response, you can always cut out the first 9 asks. The key to this is to never appear mad or frustrated because it doesn’t present well to the jury. Sonia agrees with this strategy and points out how well-suited it is for a Zoom deposition.

On a lighter note, Michael and Sonia share their favorite unexpected “gifts” they’ve received from paid opinion witnesses. Sonia details her experience of utilizing past testimony to prove an orthopedic surgeon was simply touting lies for money and highlights the importance of sharing information with other members of the plaintiff’s bar. Michael’s favorite “gift” was an ex-sheriff providing testimony on a drunk driving case, who made an incredibly racist statement in his deposition. The judge insisted the case not be made about race, which Michael had no issuing agreeing to. But when Michael asked the sheriff the same question at trial (assuming the witness had been prepped not to make the same mistake), he made the SAME racist statement he made in the deposition.

While these unexpected “gifts” are a huge blessing, they’re hard to come by on most cases. Sonia and Michael conclude the conversation by exploring why people become paid opinion witnesses in the first place. He accurately states, “This isn’t why people want to become doctors or engineers.” Michael explains how many of them either just weren’t good at their jobs or experienced an injury that rendered them unable to perform surgery.

This podcast also covers using before and after witnesses, focusing on the symptoms instead of the diagnosis, whether or not to “go in for the kill” in a deposition, verifying the qualifications of a witness, and so much more.

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