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Legal Writing for Personal Injury Cases
A paralegal's guide to drafting key documents leading up to trial.
(Originally appeared in print as "Formula for Success")
When preparing for a personal injury civil jury trial, the paralegal can play a pivotal role by asking important questions, getting the case ready and drafting documents leading up to the trial. Paralegals must know how to draft key documents including update, supplemental and expert interrogatories; motions in limine; witness and exhibit lists; proposals for settlement; jury instructions; and verdict forms. Preparing such documents can be a challenge, but having all the information at hand and planning in advance can give you the advantage you need when it comes time to help your attorney get ready for a document-intensive trial.
Supplemental Written Discovery
Paralegals draft the vast majority of discovery documents. Depending on the firm’s culture, paralegals might take it upon themselves to draft discovery documents for their attorney’s review, or they might receive an assignment from their attorney to draft a supplemental request to obtain surveillance videotapes, for example. No matter who initiates the discovery, you should calendar the deadline for discovery cut-off in every case (usually specified in a trial order), and calendar time well in advance of the deadline to discuss and draft supplemental discovery with your attorney.
When considering supplemental discovery, look at what has changed since the initial disclosure. Is there any new information that is crucial to the case? Updated discovery via interrogatories and requests for production will help you answer this question. In most states, there are certain standard interrogatories to help you find out new information: update, supplemental, surveillance and expert interrogatories.
Update and supplemental interrogatories consist of questions asking if anything has changed since a party last answered interrogatories. Such items could include treatment by a new doctor, having surgery, being fired from a job because of the subject injury or taking new pain medication. It’s especially important to determine whether any subsequent accidents have occurred. If so, both sides need to determine whether the subsequent accident exacerbated previous injuries or caused any new injuries. In other words, which injuries can be attributed to the subject accident and which can be blamed on another incident?
To find out if the plaintiff was being watched, the plaintiff propounds surveillance interrogatories. These questions should ask if there has been surveillance, and if so, who did the work, when and whether there was a report or videotape of the surveillance. The answers then can lead to a deposition of the investigator and a request to obtain the actual video or report.
Both sides propound expert interrogatories, and they serve to answer pertinent questions regarding each side’s expert witnesses. In addition to requesting the basics of the expert’s educational background and qualifications, these can be very intricate and detailed. For example, the expert interrogatory might ask how many cases the expert has reviewed for both plaintiffs and defendants, how many surgeries he or she performs per month, how many accident reconstructions he or she has completed in a certain jurisdiction, if his or her opinions ever have been disqualified, how many depositions he or she has given, and so forth. Questions also often are asked regarding how much compensation an expert earns from the law firm or insurance company for which he or she is testifying. This sometimes is a pertinent tool used to impeach an expert. Juries take note if, for example, an expert earns 75 percent of his or her income from one law firm or insurance company. Attorneys should be armed and ready to point this out and portray the expert as a hired gun.
Update, supplemental and expert interrogatories usually are sent 60 to 90 days prior to a trial date (or just prior to a discovery cut- off deadline). This leaves enough time for a party to respond prior to trial and for the requesting party to review the documents. Always check with your attorney because he or she might want them propounded earlier or at the last possible moment based on his or her particular trial preparation habits, general work ethic and case preparation.
Motions In Limine
When drafting a motion in limine, determine if there is anything harmful or prejudicial that should be kept away from the jury’s eyes and ears. This is the purpose of a motion in limine. For either side, there are detrimental issues and facts that are irrelevant, prejudicial or are of only nominal probative value and should not be proffered to a jury. One such example is a hot issue today — the issue of a plaintiff’s litigiousness. The plaintiff firm might file a motion in limine asking the court to keep any information about prior claims or lawsuits from being mentioned.
Here is an example of how a motion in limine can be used in trial preparation. The plaintiff moves for the entry of an order preventing the defendant from offering testimony, making any reference to or mention of the following matter for the following reason: “Any and all prior claims for personal injuries, whether workers’ compensation or otherwise, have no direct or indirect bearing on the instant case. The fact of prior injuries or claims, or any documents pertaining to same, only serves to cast the plaintiff in a negative light as a litigious person, and any nominal probative value is far outweighed by the resultant prejudice to plaintiff.”
Likewise, a defendant might motion to keep out past accident or incident history, past criminal history or involvement in other lawsuits, citing prejudice to the defendant’s case. Of course, a judge might deny such a motion and allow testimony to come in if he or she thinks it’s relevant to the instant case. However, many times, motions on such issues are granted and the lawyers are ordered to stick to the relevant facts.
As a paralegal, you can assist the attorney by researching and identifying which issues might require a motion in limine and drafting these motions. For example, if you meet with a client to review interrogatories and that client reveals an extensive criminal history, a memo to the attorney should identify this as a potential issue that might require a motion in limine. It’s helpful to start taking notes from the beginning of each case. If you identify a potentially harmful issue, immediately make a note of it — perhaps in a separate computer file called “motion in limine issues.” The biggest hurdle, in my experience, is identifying every issue in every case that potentially could be harmful. Starting from the beginning will help you make sure all such issues are addressed.
Witness and Exhibit Lists
Once you receive the trial order listing the trial date and all of the trial deadlines, one of the most important tasks is to prepare a formal witness and exhibit list. Paralegals are pros at sifting through files to find all eyewitnesses, treating doctors, incident reports and photographs, but even the most diligent paralegal can overlook some things.
Pharmacy records. Be sure to obtain pharmacy records along with their records custodians from before and after an accident. These records could benefit the defense by showing that a plaintiff took some pain medication prior to an accident. Or, the plaintiff could advance his or her cause by showing that no medications for pain were needed prior to an accident, but afterward, five prescriptions were filled every month.
Custodians of records. Don’t forget to obtain custodians of records from repair establishments that prepared estimates for repairs or repaired a defective product or vehicle. In one case, through discovery it was found that a repair shop prepared an estimate for repairs on a display shelf in a grocery store prior to the shelf falling on a patron. This witness was invaluable in proving that the store knew of the defective shelf and even obtained an estimate for its repair, but didn’t get it repaired.
List all individuals and facilities. When listing medical facilities, exhaustively review every medical record from each facility to procure every doctor, massage therapist, specialist, physical therapist, chiropractor and nurse practitioner who treated the plaintiff, and list each individual along with the facility’s name. In my experience working for a plaintiff’s firm, we have gotten into some tight spots by listing only a facility and not listing every individual provider treating a plaintiff. In one case, we wanted to call a physical therapist to testify at trial, but the defense argued that she was not on the witness list. Technically, she was not on the list, but we thought we covered ourselves with the standard catch-all clause “and/or records custodian and/or any and all medical providers who rendered treatment to plaintiff.” In the end, we were permitted to call the witness, but it was such a close call that our policy from then on has been to ascertain every single provider and separately list each person.
Proposals for Settlement
Many times, prior to a trial, settlement negotiations kick into full gear with both sides determining whether to in-crease an offer or decrease their monetary demands to reach a settlement. Proposals for settlement are formal settlement proposals packed with certain implications. Procedurally, in most state courts, only the notice of proposal for settlement is filed with the court; however, the actual proposal for settlement with the monetary offer typically isn’t filed with the court. The intent of these documents is to protect a party making a fair and reasonable offer from being forced to bear the costs of trial when the case should have settled for the amount proposed.
Paralegals on both sides play a large role in preparing the actual proposals for settlement documents and also greatly assist in determining an amount to propose to the opposing party by thoroughly reviewing and assessing a case file. Both plaintiff and defense firms utilize their paralegals to summarize damages, injuries and liability theories.
When preparing settlement documents, be sure to update all medical bills and lien amounts. If a client has been continually treated by a particular doctor or has seen numerous medical providers, the bills you received at the beginning of the case could be very different as the case progresses. Obtaining updated subrogation lien amounts could be crucial as well. Make sure all required information is up-to-date. There usually can’t be a meaningful proposal for settlement without knowing exactly what needs to be paid out of a gross settlement. For each case, you typically will prepare a memorandum or summary of medicals, often called “specials,” outlining total charges, payments made and balances owed.
You also should include all lien amounts, a statement of how the incident or accident occurred and any liability information. Liability information — or who was at fault — can be gleaned from incident reports, accident reports, witness statements, deposition testimony and discovery responses. By organizing all of these pieces of information, you eventually form a sharp snapshot of the case so the attorney can determine a fair amount to propose, or determine if a proposal for settlement from the opposing party is worth accepting. You also should track the 30-day deadline for the opposing party to accept the offer.
If a net verdict doesn’t exceed 75 percent of the defense’s offer or the plaintiff receives in excess of 125 percent of the offer, paralegals typically assist in preparing fees and costs to present to the court via a motion to tax attorney’s fees and costs. This motion itemizes the amount of time expended and outlines expenses involved in trying the case from the date of the proposal for settlement. Also, keep in mind that proposals generally are not permitted earlier than 90 days after service of process upon a defendant, and in most jurisdictions, no proposal can be served later than 45 days before the trial date.
The rules of civil procedure in each respective jurisdiction dictate what is permitted surrounding formal proposals for settlement. However, here is a lesser-known fact that can be a helpful tactic in many jurisdictions: A party can file more than one proposal for settlement. For instance, if a defendant proposes $7,500 to a plaintiff and the plaintiff rejects it, the defendant can file another proposal for $15,000. The defendant even can file another one after that. Each proposal is separate and multiple proposals might act as a springboard to settlement — the closer the parties get to meeting in the middle regarding monetary demands, the more likely they are to settle the case.
Jury Instructions and Verdict Forms
If a jury trial is required, you will need jury instructions and verdict forms. Most firms have computer files of form jury instructions. Also, all jurisdictions and states have standard or model jury instruction books published by top legal publishers where you can find almost any instruction you need. However, it’s still prudent to determine what you need to include.
It’s important to meet with your attorney to focus on the issues in the case as the first step for preparing jury instructions for trial. Of course, there are certain standard instructions used in every case, such as “greater weight of the evidence defined,” “choosing a jury foreperson” and “believability of witnesses.”
However, every case has nuances and specific issues, and spotlighting those can help the jury consider what you want them to consider. For example, if vicarious liability is an issue, you might want an instruction specifically on that issue. Likewise, if you are relying on a code or ordinance, you should add that code or ordinance to the instructions to the jury. Basically, try to outline every issue or question that a jury could consider and address it in the instructions. If a case involves a dump truck, perhaps there are certain statutes concerning operation of dump trucks. If a case involves a slip and fall on a wet surface of a pool area, perhaps an instruction on the meaning of “open and obvious” or “assumption of the risk” would be required.
Most jurisdictions require attorneys to stipulate or agree to one complete set of instructions. Scheduling a meeting between counsel on both sides well in advance of the trial date alleviates any miscommunication or left-out instructions, and serves as a catalyst to resolve any issues counsel might have with the instructions. If counsel can’t agree, the judge might hold a hearing and decide on a complete set of instructions to give to the jury.
Many courts today are implementing electronic methods of document submission. Placing your jury instructions on disk, CD or even e-mailing them to your attorney to access on a laptop at trial (if permitted) is effective for making any last-minute changes necessary during trial.
The jury uses a verdict form to decide liability and calculate damages. Paralegals drafting such forms should be aware of every category of damages the jury is asked to calculate. Be sure to address past losses, future losses (medical bills, wage loss), any other economic damages and any noneconomic damages, such as mental anguish and pain and suffering. If punitive damages are allowed, make sure there is a space for calculating them, with very clear instructions so the jury is less likely to become confused. Addition ally, be sure that any consortium claims are addressed with space for calculating economic damages, e.g., loss of a substantial portion of a savings account because of a spouse being injured and unable to work, as well as noneconomic damages, such as loss of the “society and comfort” of a spouse.
Knowing which key documents to prepare leading up to a civil jury trial is crucial for personal injury paralegals. Drafting these documents will be a great help to your attorneys, keeping them organized, on track and ready for every stage of the trial.
Catherine Astl, CLA, is a civil litigation trial practice legal assistant working for T. Patton Youngblood Jr. in Tampa, Fla. The firm specializes in the areas of personal injury, medical malpractice, criminal, and music and entertainment law. Astl is the author of the book "Behind the Bar -- Inside the Parelegal Profession," as well as numerous articles about the paralegal field.
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