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Category Archives: Defense Counsel

May Defense Counsel Ask Plaintiff Whether He Was Referred to Doctor?

21 Sunday Dec 2014

Posted by Celia C. Elwell, RP in Attorney-Client Privilege, Cross-Examination, Defense Counsel, Depositions, Direct Examination, Discovery, Interrogatories, Litigation, Making Objections, Negligence, Personal Injury, Plaintiff's Counsel, Privilege and Confidentiality, Trial Tips and Techniques

≈ Comments Off on May Defense Counsel Ask Plaintiff Whether He Was Referred to Doctor?

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Attorney-Client Privilege, Daniel E. Cummins, Pennsylvania, Personal Injury, TORT TALK Blog

“Did Your Attorney Refer You to that Doctor?” by Daniel E. Cummins, TORT TALK Blog

http://tinyurl.com/phfds4w

In a recent Delaware County Court of Common Pleas decision in the case of English v. Stepchin, No. CP-23-CV-786-2014, 101 Del. 424 (C.P. Del. Co. Nov. 12, 2014 Kenney, P.J.), President Judge Chad F. Kenney upheld a defense attorney’s right to inquire of a personal injury plaintiff whether or not plaintiff’s counsel had referred the plaintiff to her treating physician.

This issue came before the court on a Motion for a Re-Deposition of the plaintiff by defense counsel.

At the original deposition, plaintiff’s counsel objected to the defense counsel’s question to the plaintiff as to whether or not plaintiff’s counsel had referred the plaintiff to her treating physicans. Plaintiff’s counsel asserted that such discovery was barred by the attorney-client privilege.
In his Opinion issued on the matter, President Judge Kenney held that, ‘whether counsel referred Plaintiff to her treating physicians does not constitute legal assistance so as to justify properly invoking the attorney-client privilege.’ More specifically, the court found that whether an attorney referred his client to a medical provider for treatment cannot be considered to have been a communication from an attorney to his or her client associated with the rendering of a legal opinion or the provision of legal services so as to invoke the applicability of the attorney-client privilege.

President Judge Kenney also stated that any asserted privilege ‘failed to outweigh the interest of the accessibility of material evidence to further the truth-determining process’ at a trial of a personal injury matter.

The Court granted Defendant’s Motion and ordered a 2nd deposition limited to the issue of who referred Plaintiff to her treating physicians.

Anyone wishing to review this decision, may click this LINK.

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Is Evidence of Defendant’s Disability Admissible in Police Brutality Trial?

27 Saturday Sep 2014

Posted by Celia C. Elwell, RP in Admissibility, Americans With Disabilities, Criminal Law, Defense Counsel, Evidence, Excessive Force, Fourth Amendment - Search & Seizure, Governmental Tort Claim Act, Law Enforcement, Police Brutality, Trial Tips and Techniques

≈ Comments Off on Is Evidence of Defendant’s Disability Admissible in Police Brutality Trial?

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Criminal Law, Disability, Evidence, Fourth Amendment, Police Brutality, Reasonable Person Analysis, Trial Tips & Techniques

Disabling Condition: Should Evidence of Defendant’s Disability be Admissible in Assault/Police Brutality Trial?, by Colin Miller, EvidenceProf Blog

http://tinyurl.com/plpuz7s

According to an article in the Lake Geneva News,

‘A man who is accused of attacking a police officer, but counters that he is the victim of police brutality, is set for his second jury trial next Monday.

Daniel White, 42, of rural Elkhorn, faces three felony counts and a misdemeanor related to an incident in which his two pit bulls bit two deputies and he allegedly struck a deputy with his fist and a wood board.

White, who walked in the courthouse with a cane and collects disability checks, contends that the officer knocked down his stockade fence, beat him up and lied to conceal their actions.’

Prior to trial, the prosecution asked the judge to (1) prohibit White’s cane from being in the jury; and (2) to exclude evidence of White’s disability. How should the judge rule?

Well, the judge has already ruled ‘refused to force White to hide his cane during the trial.’ I think this seems like the only correct outcome. First, there is simply the matter of logistics. For instance, a defendant has to stand when the judge enters the courtroom. Given that, it’s difficult to see how the cane could be completely hidden from view. Second, courts have found no problem with defendants being in shackles in the courtroom when such restraint is necessary. Reciprocity would thus seem to require allowing a defendant in need of a cane to be able to use it in plain view of jurors.

The more difficult question is whether the defense should be able to present evidence of White’s disability. Part of this depends on the defense’s theory of the case. Is the claim that White’s disability made him physically unable to commit the crimes alleged in the complaint? If so, you might recall the infamous O.J. Simpson trial in which Richard Walsh was allowed to give testimony that the former running back’s football injuries caused problems with his problems with knees, back, shoulder and hands.

Is the claim self-defense, with White’s claim being that his disability should be part of the reasonable person analysis? If that’s the case, check out this excerpt from Hendrix v. State, 369 S.W.3d 93 (Mo.App. 2012):

‘Although Ransom was decided in the context of a civil claim of self-defense, its analysis of the ‘reasonable person’ standard is relevant to determining whether Hendrix’s medical records were relevant to his claim of self-defense….Hendrix’s medical records, if entered into evidence at trial, would have merely established that he suffered from degenerative joint disease in his knees. As Ransom indicated, a defendant’s ‘proclivities or propensities are irrelevant’ to the issue of whether the defendant acted as a ‘reasonable person.’…Williams was not ineffective for failing to present irrelevant evidence because it would have been inadmissible at trial….

Even if evidence of Hendrix’s disabilities would have been relevant and, therefore, admissible, Hendrix offered no evidence at the motion hearing to demonstrate that, had Williams entered Hendrix’s medical records detailing his degenerative joint disease, the jury would have acquitted Hendrix. The jury heard Paynter’s testimony that Hendrix wore knee braces, and the defense’s closing argument utilized Hendrix’s knee injuries to argue the relative size difference between Hendrix and Paynter. Despite the jury hearing that evidence and argument, it rejected Hendrix’s self-defense theory. Hendrix has not demonstrated that, had the medical records been admitted, there is a reasonable probability that he would have been found not guilty.’

Hendrix seems to stand for the proposition that some evidence of a defendant’s disabilities is admissible but that medical records are not. But, of course, those records were offered for a particular purpose which might well be different from the purpose at White’s trial. -CM

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The Strategy of Dissociation – Don’t Go To Trial Without It.

02 Friday May 2014

Posted by Celia C. Elwell, RP in Closing Argument, Cross-Examination, Defense Counsel, Direct Examination, Jury Persuasion, Opening Argument, Trial Tips and Techniques

≈ Comments Off on The Strategy of Dissociation – Don’t Go To Trial Without It.

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Dissociation, Dr. Ken Broda-Bahm, Persuasive Litigator Blog, Trial Strategy, Trial Tips & Techniques

Dissociate (to Separate Bad Image from Good Image in Litigation), by Dr. Ken Broda-Bahm, Persuasive Litigator Blog

http://bit.ly/1lJsEka

At the start of their game last Sunday, members of the L.A. Clippers ceremonially left their warmup jackets in a heap in center court, and warmed up with their shirts turned inside-out in order to conceal the name and logo of the team. This act came in response to recorded comments by team owner Donald Sterling telling his girlfriend ‘not to bring them [‘black people’] to my games.’ The response by the players was a move of dissociation: a way to say “We are not that,” and to clarify, in no uncertain terms, that the owner’s racism does not represent the team. This need to dissociate – to separate one meaning from another – is common in all communication situations, including those that involve the potential for litigation. Recently, for example, General Motors made the bold move of offering a full and complete apology for its inaction in addressing a long-term problem with its ignition switches, but in subsequent congressional testimony, CEO Mary Barra was careful to draw a distinction between the ‘Old General Motors’ prebankruptcy, and the ‘New General Motors’ that today stands before congress, court, and consumers.

Dissocation plays a role in lower profile cases across the country as well. A range of litigation-relevant situations create a need to communicate that ‘we are not this.’ Like most good persuasive strategies, the notion has its roots in rhetoric, the ancient and modern study of the best available means of influence. But the idea is more than just ivory tower philosophy.  Dissociation also translates into some important practical strategies worth considering by trial attorneys in a number of situations. This post takes a look at the underpinning, as well as the concrete strategies of dissociation. . . .

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Apologizing Even When It’s Not Your Client’s Fault.

30 Sunday Mar 2014

Posted by Celia C. Elwell, RP in Closing Argument, Cross-Examination, Damages, Defense Counsel, Direct Examination, Jury Instructions, Jury Persuasion, Litigation, Making Objections, Opening Argument, Settlement, Trial Tips and Techniques

≈ Comments Off on Apologizing Even When It’s Not Your Client’s Fault.

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Damages, Dr. Ken Broda-Bahm, Judges, Jurors, Persuasive Litigator Blog, Settlement, Trial Tips & Techniques

Show You’re Sorry, Even When You’re Not at Fault, by Dr. Ken Broda-Bahm, Persuasive Litigator Blog

http://tinyurl.com/ntvjm5r

[A]s we’ve noted before, letting jurors, judges, and opposing parties hear an apology can be effective when you are responsible, or are likely to be found responsible, for at least part of the damage at issue in the case. But what about when you’re not? Does that second kind of “sorry,” meaning “I recognize your loss, but without accepting responsibility for it” create a persuasive advantage as well?

According to some new research, yes, it does. . . .

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Like Us, Judges and Juries Get the “Munchies.”

08 Saturday Mar 2014

Posted by Celia C. Elwell, RP in Appellate Judges, Closing Argument, Cross-Examination, Defense Counsel, Direct Examination, Exhibits, Experts, Federal Judges, Judges, Jury Persuasion, Law Clerks, Litigation, Making Objections, Opening Argument, Oral Argument, Plaintiff's Counsel, Trial Tips and Techniques, Voir Dire, Witnesses

≈ Comments Off on Like Us, Judges and Juries Get the “Munchies.”

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Dr. Ken Broda-Bahm, Judges, Juries, Lunch and Snack Breaks, Persuasive Litigator Blog, Persuasive Trial Strategy, Rocket Science Blog, Trial Tips & Techniques, Trials

Time Your Arguments to the Judge’s Lunch Breaks (and Adapt to All Decision Makers’ “Cognitive Load”), by  Dr. Ken Broda-Bahm, Persuasive Litigator  Blog

http://tinyurl.com/lebleml

It comes as no surprise that a hungry person, be it the judge or members of a jury, find it difficult to concentrate and focus on your client’s case. Long stretches of testimony and argument are hard enough to follow, especially if the case is complex with numerous exhibits and witnesses. Regardless how comfortable the chair, sitting for long periods trying to listen carefully to a case is hard work.

There is more than one way to consider your audience at a trial or hearing. Persuasive argument is one. Excellent trial preparation using technology is another. Considerate and well-timed rest and meal breaks are another tool that can be used to your advantage.

The Rocket Science Blog mentioned in this post can be found at http://tinyurl.com/3dg5e8n. – CCE

Anyone who argues in front of judges knows that human factors can weigh as heavily as the law in determining your judge’s decisions.  But it is still possible at times to be surprised at the degree of influence, as well as the banality of those human factors.  Case in point: lunch and snack breaks.  Recent research discussed in the excellent Not Exactly Rocket Science blog appears to show that judges’ decisions vary as a direct effect of the proximity of their morning snack or lunch break.  In case you are using your morning break or lunch hour to read this post, I’d like to make it worth your while by applying the study findings to the more general issue of your decision-makers’ mental work load and offering some recommendations for anyone who needs to make arguments to a potentially fatigued audience. . . .

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