South Carolina Injury Law Journal - Anderson and Greenville Lawyer & Attorney Workers' Compensation Cases, Product Liability Lawsuits, and Accidents

I am a lawyer not a doctor. Doctors are medical professionals trying to help people get better by diagnosing, treating, and preventing. When we step outside our profession and into another professional arena we know very little about, it can be confusing. No matter how much reality television we watch, it may not carry over to the realities we live in.

In the short time I have been an attorney, it never ceases to make me laugh when I go to a doctor's deposition. We, as lawyers, have to ask certain questions in certain ways to meet legal thresholds and adhere to the prevailing rules of evidence, which makes those questions sound verbose, obnoxious, and confusing.

1. "Doctor  ______, is it your opinion to a reasonable degree of medical certainty that it is more probable than not, that my client's disc herniation were caused/aggravated/ and/or made worse from the motor vehicle collision/slip and fall/dog bite?"
2. "Doctor ______, based on your education, observations, and medical treatment of my client, was it medically necessary to send them for physical therapy/diagnostic testing/pain management as a result of the motor vehicle collision/slip and fall/dog bite?"
3. "Doctor ______, do you have an opinion to a reasonable degree of medical certainty as to the permanent impairments my client would be assigned under the AMA guidelines?"

It's important for medical professionals to understand that Plaintiffs have the burden of proving their case by the preponderance of the evidence. The most common example is the tipping of the scales of justice ever so slightly to provide an imbalance that would warrant the "preponderance" part, "more likely than not". (David Swanner of South Carolina Trial Law Blog gives several good examples).

Therefore, medical professionals don't have to know 100% one way or the other. They just have to give an opinion (based on a reasonable degree of medical certainty) whether an injury or aggravation of a pre-existing injury is "more likely than not"/ "more than a 50% chance"/ "ever so slightly tips the scales" was caused or directly affected by the trauma.

Plus, know what you charge for your office visits. You are a professional and are running a business. In the 100 or more medical depositions that I have taken, not one medical professional has been able to tell me what they charge per office visit. That could be one explanation in the health insurance and medical professional struggle now. How can you talk about lost profits and exorbitant prices when you have no clue about money, fees, or service costs directly related to services rendered?

This is the typical response cut and pasted directly from an recent examination of my client's treating physician's deposition:

I can't make an assessment about causation.  When I see a patient or take care of patients, I'm not really thinking about, you know, is this going to go to a legal situation. I'm mostly concerned about the patients and their well-being so I just go what they tell me, by the history.  So the answer to your question is:  I don't know.  I can't say with 100 percent certainty that the motor vehicle accident caused the herniated disk.

I asked the questions previously discussed. Do you have an opinion? Not can you tell me for certain. Plus, if you were truly concerned for the patient, you would also be concerned about the financial stress and misery of undergoing medical treatment and being personally responsible for the medical services you have rendered to them unless you agree that someone else affected their pre-existing injury or caused new injuries.

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Dave Swanner, author of South Carolina Trial Law Blog, has a very resourceful and informative article about "How to Be a Better Trial Lawyer". In this article he cites 8 great points ranging to involvement in local and national trial organizations to learning anatomy and physics.  I think if you take to heart all of his points you have an excellent guidepost to kicking off your trial career.  I would only like to add several points that I have picked up in the past three years that have helped me:

1. Keep Detailed Records of Values- I use an Excel Spreadsheet indicating the client, type case, insurance agent, insurance company/defense attorney, settlement amount, attorney fees, and month in which the settlement, or trial, occurred.  The more detailed your records the better you can understand the other side.  There are some attorneys out there that let a case go if a law suit and eventual trial is a strong possibility.  You don't want to be lumped into that category. Keep an eye on verdict reports and SC Lawyers Weekly.  Numbers are also more important to your partners and managing attorneys come review time.
2. Find Your Passion-Then funnel it into focus for your litigation. This is easy for me because I hate insurance companies for what they did when I was sick with cancer and what they did to my mother when she was dying with lung cancer.  I draw from that hatred, which is not healthy, and remind myself that I am the only voice and advocate for my clients.  They have come to me because they have been injured, wrongfully accused, misinformed, taken advantage of all their lives, and rest all their confidence on my shoulders.  What a great feeling!
3. Communicate Without Legalese- You have to speak and explain things like a normal person with your clients, the jury, and the court administrators and personnel.  You can use all those fancy words with opposing counsel and corporate clients but the jury is made up of ordinary people in the community, often times not lawyers or professors.  Remember the jury's role from your law school education? As George W. Bush would say, "They're Deciders! And they decide things."
4. Keep Templates from Previous Trials/Work-Issues you faced in your first trial will most likely be issues in your subsequent trials. Evidentiary issues on Hearsay and Expert Testimony seem to always crop up.  Likewise, pretrial and post trial motions you make can be similar.
5. Be Able to Find the Courtroom-I was late to a Minor Settlement Hearing because I failed to do just that.  I was already running late and failed to get directions but assumed I could find downtown and thus the Courthouse. It was in Laurens County where the Courthouse doesn't hold court but had been moved out on the bypass into an old shopping center.  By the time I got there I was stressed, flustered and angry at myself.  A lot to carry into a courtroom in front of a judge. 
6. May It Please the Court-remember the logistics of the courtroom and certain formalities. The party with the burden of proof sits closest to the jury, know the number of jury strikes each side is allowed, if you're the plaintiff will you be allowed the final word after closing, etc.   

I think Dave's tip #7, is the most important one of all.  You can't call yourself a trial attorney if you have never done a trial. 

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