Chicago Accident and Injury Lawyer Blog

Every month, Chicago personal injury lawyer Jeffrey J. Kroll contributes to the Chicago Daily Law Bulletin in his column Balancing Life and the Law.

In this month's article, "Lawyers should take the reins with future damages", Jeff puts a holiday spin on the discussion of maximize damages for client's future medical expenses, lost earnings, future pain and suffering, disability, disfigurement and loss of consortium damages in a light of the ever-changing American economy and political climate. Here is an excerpt from his article:

My firm represents individuals who have been severely injured as a result of someone else's negligent acts. One of the most difficult tasks we have is ensuring our clients receive full and fair compensation. Before entering into a settlement or suggesting an amount of compensation to a jury, we must determine a sufficient amount of money that will provide for the individual well beyond the date of trial. Often, our clients' lives have been shattered by unnecessary and unexpected injuries. Many can no longer work or care for themselves.

In my humble opinion (with the full disclosure that I am a plaintiff's attorney), the injured party deserves the benefit of the doubt. This isn't just a "holiday, be generous" message. (Although, I am in the spirit this year; Christmas music plays in my office even as I write this article.) Who will care for the injured if their settlement or verdict award does not cover medical and daily living costs well into the future? I have yet to hear of Santa and his elves stuffing stockings with prescription medications, physical therapy, joint replacement surgeries or checks to cover insurance premiums. No one can depend on the future of Medicare and Medicaid either — nor should they have to. The harm perpetrated on the injured will consistently ripple through the individual's family, emotionally and economically. Not only do family members live with the changed — depressed and likely disabled — person, but often they also must care for the victim of negligence. The cynic will say "Well, that's the family's job. They should take care of them." But how fair is that?

The only way to protect the victim and the family, and to provide them with some piece of mind when it comes to future finances, is to maximize damages for future medical expenses, lost earnings, even future pain and suffering, disability, disfigurement and loss of consortium. Speculative damages, you might say. But there is nothing speculative about the ongoing pain and suffering that my clients will endure. Nor is there anything speculative about the medical care that they will require for the rest of their lives.

Then, there is the whole business of future damages discounted to present cash value. All future damages, except for pain and suffering, disfigurement, disability and loss of society and consortium, must be reduced to present cash value. This has become the preferred method of determining future damages. While there is no requirement that the trial attorney present actuarial or statistical evidence to the jury to determine present cash value (Robinson v. Greeley & Hansen, 114 Ill.App.3d 720, 725 (2d Dist.1983)), it certainly can be helpful at times. Of course, mortality tables also help plot the course. But how do we plan for other economic and political changes? Right now, the future of health care in this country is unknown. Regardless of which side of the aisle you prefer, we will all be affected by the changing American medical infrastructure at some point. Medical costs seem to be rising as quickly and as steadily as the cost of college. Life-care planners and economists can help us plan for our clients' futures, but we are ultimately the clients' advocates and must direct the outcome.

Read the entire article.

Continue reading "BALANCING LIFE AND THE LAW" »

Every month, Chicago personal injury lawyer Jeffrey J. Kroll contributes to the Chicago Daily Law Bulletin in his column Balancing Life and the Law.

In this month's Halloween-themed article, "Halloween illustrates element of surprise at trial", Jeff discussed embracing the element of surprise at trial, instead of fearing it. Here is an excerpt from his article:

"When it comes to jury trials, most attorneys strive to eliminate the possibility of surprise. Anyone that has ever presented testimony in court has most likely encountered a witness who provided a different version of the incident on the stand than they had during preparation. You know what, even with proper preparation, sometimes "stuff" happens.

"But, what if trial attorneys learned to embrace the element of surprise at trial, instead of fearing it? Personally, I do not like to give away all the strengths of my case during pretrial discovery. Often, I forgo the long, extended deposition of a particular witness if I believe that I am going to try the case. Sometimes, if I know that I am going to conduct cross-examination of a particular witness at trial, I want another attorney in the office to take the discovery deposition. See, a trial surprise doesn't have to be eerie, so long as you are the one introducing it, not your opponent.

***

"Now, I understand that the purpose of Illinois Supreme Court Rule 213 is "to avoid surprise and to discourage tactical gamesmanship." Sullivan v. Edward Hospital, 209 Ill. 2d 100, 111 (2004). I am in no way advising that trial attorneys ignore the all-mighty (and potentially frightening) Rule 213. Disclose everything — every opinion and their bases, every document, every potential piece of evidence — and on time.

"Yet, cross-examination is a different ghost. Rule 213(g) states: "Without making disclosure under this rule … a cross-examining party can elicit information, including opinions, from the witness." Ill. Sup. Ct., R 213 (2011). The committee notes further explain, in part: "Parties are to be allowed a full and complete cross-examination of any witness and may elicit additional undisclosed opinions in the course of cross-examination." Id., Committee Comment to March 28, 2002, Amendment, Paragraph (g). See also, Stapleton v. Moore, 403 Ill. App. 3d 147, 156-157 (1st Dist. 2010) ("holding that Rule 213(g) does not require a party to disclose journal articles that the party intends to use while cross-examining the opposing party's opinion witness"). This, my friends, is why I love cross-examination.

"In fact, cross-examination can be the place to really shock your opponent. Take a recent 1st District Appellate Court case, Van Gelderen v. Hokin, 2011 Ill. App. LEXIS 785 (1st Dist. 2011). There, the plaintiff was injured when he fell down a stairwell upon exiting the side entrance to the defendant's home. At trial, the defendant testified that he had not changed anything about the side entrance and that no one since the plaintiff had been injured by falling down the stairwell. 2011 Ill. App. LEXIS 785, *22. The plaintiff, in turn, properly impeached the defendant by introducing evidence of a baby gate that had been installed after the incident. By testifying that no one had been injured and no changes had been made, the defendant opened the door to allow evidence of the installation of the baby gate, permitting otherwise inadmissible evidence of a subsequent remedial measure to be introduced at trial. Id., see also, Herzog v. Lexington Township, 167 Ill. 2d 288, 302 (1995) (evidence of subsequent remedial measures may be admissible for the purpose of impeachment). I do not know whether or not the plaintiff's attorney expected the defendant's response that "no changes had been made," but the fact that the attorney had the evidence of the subsequent remedial measure available at trial is commendable."

To read Jeff's entire article, click here.

Continue reading "BALANCING LIFE AND THE LAW" »

Our Chicago personal injury attorneys just read an Illinois First District Appellate Court decision, affirming a $4.75 million dollar judgment in favor of the estate of a legally-blind man, who was killed by a Metra train at a Metra Station in Berwyn, Illinois. The case is Eskew v. Burlington Northern and Santa Fe Railway Company.

The most interesting issues on appeal involved alleged jury misconduct and one juror's blog, describing her experiences while serving on the jury. According to the opinion, here is one of her entries:

"But I can tell you some stuff. At one point on Friday, in the privacy of the jury room, one of the jurors said, 'Well, all's that left now is deciding how much.' I looked at her in disbelief. 'Lalalalalalala!" I singsonged, holding my fingers in my ears. 'You cannot talk that way, Juror L,' I said, 'You have to wait until ALL the evidence is in and we've heard from ALL the witnesses." 'How come?' she said, *** 'It's clear to me who is at fault.' 'You don't know that," chimed in my buddy, Juror F. 'What if they show us a suicide letter?' 'There's a suicide letter?' 'No, no, no!' we said in unison, and then JF continued, 'but you don't know what else they might tell us or show us. You have to wait to make up your mind!"

The defense claimed that this blog entry and others showed that the verdict was the result of bias. The court disagreed, finding the blog entries did not show that the jurors were exposed to any improper extraneous information from an outside source. Also, while the blog entry showed that the jurors had discussed the case prior to hearing all of the evidence (which juror's are specifically instructed not to do during pretrial instructions), the Court found that the blog entries actually showed that the jurors were committed to keeping an open mind until all of the evidence had been presented. The court noted,

"The important question in this regard is not whether the jurors kept silent with each other about the case, but whether each juror kept an open mind until the case was submitted to them."

Although seemingly innocent in this case, juror's use of the internet during a trial could adversely affect the litigating parties, and should be discouraged. Judges should emphasize the preliminary cautionary jury instruction specifically prohibiting jurors from commenting on social media websites or conducting internet research during the jury process. Jeffrey J. Kroll has written and spoken about how disruptive jurors' internet use has proven to be during trials. Last October, his article "Jury Trials in the Digital World" was featured in the Chicago Daily Law Bulletin.

Continue reading "JUROR BLOGGING DURING TRIAL FOUND NOT TO HAVE AFFECTED VERDICT" »

Every month, Chicago personal injury lawyer Jeffrey J. Kroll contributes to the Chicago Daily Law Bulletin in his column Balancing Life and the Law.

In this month's article, "Cross-examining defense experts requires a plan," Jeff discussed tips that every plaintiff's lawyer should consider before taking the deposition of a defense medical expert.

Jeffrey J. Kroll has practiced personal injury law for over twenty years. He is known by his peers to be a leader in the areas of personal injury and wrongful death. As a guest columnist for the Chicago Daily Law Bulletin, he writes about balancing the demands of the practice of law with the demands of personal life.

The national nonprofit consumer group Center for Justice & Democracy recently examined "the truth about punitive damages” stating that “the imposition or threat of punitive damages is so critical in the fight against reckless corporate behavior that any effort to restrict them undermines the safety of us all.” The Chicago personal injury attorneys at the Law Offices of Jeffrey J. Kroll agree that punitive damages, although extremely rare, are needed to hold corporate wrongdoers liable, to deter future reckless conduct, and to protect the American public.

Contrary to what many large corporations have attempted to publicize through the media, "punitive damages are extremely rare." The availability of punitive damages as a remedy is vital to the American justice system and for consumer safety. Here are some other facts about punitive damages according to Emily Gottlieb, Deputy Director for Law and Policy at the Center for Justice & Democracy, which can be found in her report What You Need to Know About… Punitive Damages:

- Attorneys rarely seek punitive damages and judges and juries rarely award them.

- Most punitive damage awards aren't as high as one might think.

- History shows that the imposition or threat of punitive damages has caused corporations to improve safety and remove dangerous products from the stream of commerce. For example, companies that manufacturer bottle caps, Drano, tampons, and various drugs and medical devices have implemented important safety changes as a result of evidence revealed in court that lead to the imposition of punitive damages against the company.

Continue reading "CHICAGO PERSONAL INJURY ATTORNEY COMMENTS ON "WHAT YOU NEED TO KNOW ABOUT… PUNITIVE DAMAGES"" »

A British juror, who had contacted an acquitted defendant using Facebook, has recently been convicted to eight months in prison.

Jeffrey J. Kroll has written and spoken about how disruptive jurors' internet use has proven to be in the United States. Here is an excerpt of his October 2010 article, which was featured in the Chicago Daily Law Bulletin, entitled "Jury Trials in the Digital World":

The New York Times-coined term "Google Mistrial" surfaced a serious discussion regarding the 6th Amendment’s right to an impartial jury and the use of the internet. In that publicized case, a judge found curious jurors Googling information in a Florida drug case. John Schwarz, As Jurors Turn to Web, Mistrials Are Popping Up, N.Y. Times, Mar. 18, 2009. This seems to be just the beginning of a potential trend of juror misconduct. Recently, a Detroit-area judge removed a juror who posted to her Facebook page that the defendant was guilty. Seemingly innocent, but the scary truth was that the trial was still pending. The punishment for this action: A finding of contempt of court, a $250 fine and an essay on the Sixth Amendment. This is just one of many examples available by simply Googling “jurors, internet, news.

In England, the Judge who sentenced the juror stated:

Her conduct in visiting the internet repeatedly was directly contrary to her oath as a juror, and her contact with the acquitted defendant, as well as her repeated searches on the internet, constituted flagrant breaches of the orders made by the judge for the proper conduct of the trial.

Here, back home in the United States, not unlike everywhere else around the world, the internet is widely available and a seemingly all-encompassing resource. Instructing jurors to avoid internet activity relevant to a case is probably only mildly effective. But, it is a start. The internet is simply too tempting and convenient. In Illinois, jurors have a duty to resolve cases based on the evidence presented in court and their reasonable inferences drawn from that evidence. See I.P.I. 1.01. At the end of the day, however, the juror's oath is all we have. It is our duty to reinforce the importance of that oath in light of the breadth of information available on the internet.

On May 20, 2011, the Illinois Supreme Court Rules Committee will discuss whether or not to codify a new Illinois Supreme Court Rule which would change juror participation by permitting jurors to question witnesses during the trial process.

The proposed Rule would look like this (according to the Illinois Supreme Court website):

(a) Questions Permitted. The court may permit jurors in civil cases to submit to the court written questions to be posed to witnesses.

(b) Objections. Out of the presence of the jury but on the record, the court will read, or
provide a copy of the questions to all counsel and give counsel an opportunity to object to the question. If any objections are made, the court will rule upon the objections at that time and the question submitted by the juror will be either allowed to be read as written, allowed to be read as modified, or excluded.

(c) Questioning the Witness. If the question is allowed as written or as modified, the court or counsel will read the juror’s question to the witness in the jury’s presence, and the witness will answer the question. The court will then provide all counsel with an opportunity to ask follow-up questions limited to the scope of the new testimony.

(d) Admonishment to Jurors. At times before or during the trial that the court deems
appropriate, the court shall advise the jurors that they shall not concern themselves with the reason for the exclusion or modification of any question submitted and that such measures are taken by the court in accordance with the rules of evidence that govern the case.

Having tried cases for over twenty years, I believe that Illinois attorneys should tread carefully in this area as the proposed rule could shatter the principle of juror neutrality. If codified, it will effectively inject jurors into the position of advocate versus a neutral fact-finder. From a practical standpoint, it also invites jurors to deliberate prematurely. For these reasons, the Law Offices of Jeffrey J. Kroll disapproves of the proposed rule.

The Stanford Law Review recently published a law review article, What Judges Think of the Quality of Legal Representation, 63 Stan. L. Rev. 317, January, 2011, penned by the Seventh Circuit's Judge Richard Posner and University of Toronto Associate Law Professor Albert Yoon. The team surveyed 666 state and federal judges at the appellate and trial levels, asking judges "to answer questions relating to their perceptions of the quality of legal representation, and how that quality - and significant disparities in quality between opposing counsel - influences how they and juries decide cases." 63 Stan. L. Rev. 317, 319.

The findings? It is not surprising that Judges found that they responded differently than juries to the disparity in the quality of legal representation. 63 Stan. L. Rev. at 320. When such disparities arise, judges stated that they conducted independent research outside the courtroom in order to decide legal issues. As for how juries perceive trial counsel, the articles stated that "jurors are inclined … to favor the litigant with the higher-quality lawyer." Id.

What does this mean?

When litigants have lawyers of unequal quality, judges can frequently correct the imbalance through their own research, whereas juries cannot and therefore respond to the inequality in representation by gravitating toward the litigant with the stronger lawyer. This finding is consistent with evidence that the quality of legal representation has a strong effect on case outcomes. If the stronger lawyer coincides with the litigant with the stronger case on the merits, then one would expect judges and juries to agree on the outcome. If, however, the weaker lawyer coincides with the litigant with the stronger case on the merits, then judges and juries are likely to disagree. One federal district judge suggested that judges were performing the job of the lawyers: "It is frustrating having to conduct research, raise fundamental issues sua sponte, and having the litigants reap all the benefits."

Id. at 346.

The solution is self-evident. Litigants should retain lawyers with trial advocacy skills. When asked how to enhance the quality of legal representation, most judges suggested changes at the law school level. Jeffrey J. Kroll has taught at numerous law schools in Chicago, including trial advocacy and medical malpractice law at DePaul University College of Law, trial advocacy at Northwestern University College of Law and deposition practicum courses at John Marshall Law School. The attorneys at the Law Offices of Jeffrey J. Kroll have over 20 years of experience trying cases throughout Illinois and across the nation.

When it comes to the Fake Bad Scale (FBS), or the Minnesota Multiphasic Personality Inventory in general, one can almost always conclude that the administration and reporting of the results of these tests by defense expert witnesses will be biased. As a result, if a judge permits a defense attorney to present the biased results of such tests, the injured person's attorney must engage in careful and skillful cross-examination to impeach the results at trial. Additionally, like in Amadio v. Glenn, discussed in Part 1 of this blog, plaintiff's attorneys should have the plaintiff evaluated by a qualified expert as well. That expert should be prepared to testify about the extent and severity of the invisible injury at trial and to explain and refute the results of the FBS.

Over the course of his career, Jeffrey J. Kroll has lectured to expert witnesses regarding issues that arise while testifying in court, especially how expert witnesses should incorporate the use of demonstrative evidence into their testimony to persuade a judge and jury. As Chicago brain injury attorneys, our team understands the sequelae of invisible injuries, like traumatic brain injuries, and have experience maximizing recovery for injured individual. Often, this requires working closely with expert witnesses who assist in explaining to the jury the short- and long-term disabilities that may result from invisible injuries.

Defense attorneys often claim that people who suffer invisible injuries in collisions, such as plaintiffs who suffer traumatic brain injuries, are faking or exaggerating their life-changing symptoms. As a result, defense attorneys retain and pay experts to evaluate the injured person via a multitude of psychological tests. Those well-paid expert witnesses then typically testify at trial that the plaintiff's symptoms fail to comport with the injury.

One controversial test, the Fake Bad Scale (FBS), claims to identify malingerers (the term used for people who supposedly fabricate or exaggerate their symptoms of mental or physical disorders for secondary gain, including financial compensation). Unfortunately, the FBS is now a component of the Minnesota Multiphasic Personality Inventory (MMPI) personality inventories. Plaintiff's personal injury attorneys, like me, despise the FBS, as it misjudges legitimate health issues and almost always over-reports malingering.

The issue of real, yet, invisible injuries versus the FBS recently intersected in a case in the Eastern District of Pennsylvania: Amadio v. Glenn, 2011 U.S. Dist Lexis 9549 (February 2011). There, plaintiff claimed that he suffered worsening brain damage, which originally resulted from a collision six years earlier, when defendant-driver suddenly struck his car. Plaintiff's attorney and the defendants' attorney requested that experts evaluate the nature and cause of the collision as well as plaintiff's present injuries.

Defendants' experts subjected plaintiff to the MMPI- 2 personality inventory. It's not surprising that the defendants' paid experts later opined that the plaintiff's MMPI-2 results indicated "over-reporting and exaggeration of psychopathology," "extreme levels of exaggeration," "responding bias," and that "[plaintiff] skewed his responses toward greater psychopathology." 2011 U.S. Dist Lexis 9549, *11.

Prior to the commencement of trial, plaintiff filed a motion to preclude testimony related to the results of the MMPI-2 test. Specifically, plaintiff challenged the reliability of defendants' experts' methodology and the fit of their opinions to the evidence, arguing the experts' evaluation was flawed because MMPI-2 (1) cannot be validly used or interpreted in patients who are known to be brain damaged, and (2) the FBS sub-scale is scientifically invalid as it overestimates malingering.

Although the Court agreed with defendants that in general the interpretation of certain test results should not be precluded, but should instead be subjected to cross-examination, plaintiff's argument that the MMPI-2 test should not be administered to people with known brain damage caused the Court to pause. (Unfortunately, the Court did not address the plaintiff's contention that the FBS is scientifically invalid.)

In finding for the plaintiff, the Court stated the experts failed to show, pursuant to Federal Rule of Evidence 702, that (a) their opinion based on the MMPI-2 test consisted of a testable hypothesis with regard to brain damaged victims, (b) the MMPI-2 had been subjected to peer review on the subject of brain damaged people, (c) there existed standards controlling the technique's operation for brain damaged individuals, or most particularly and importantly (d) the method has been generally accepted for use on those who are brain damaged.

In the closing argument of Mrs. Oglesby’s trial, her attorney requested an award of $75,000 for her loss of a normal life and $85,000 for her physical pain and mental suffering. The jury returned a verdict in favor of Mrs. Oglesby's estate. In addition to amounts for medical expenses and property damage, the jury determined the damages for her pain and suffering to be $42,000 and her damages for loss of a normal life to be $34,000, The jury further found Mrs. Oglesby 40% negligent and awarded her estate a total of $47,200.20.

Defendant appealed, claiming, among other things, that the evidence did not support the jury's determination of Mrs. Oglesby’s damages. Defendant requested an order a remittitur of 50% of the damages for pain and suffering and for loss of a normal life. The First District Appellate Court disagreed, affirming the damage award and stated:

The purpose of a remittitur is to correct an excessive jury verdict in limited and appropriate circumstances.… A verdict will not be set aside by a court unless it is so excessive that it indicates that the jury was moved by passion or prejudice or unless it exceeds the necessarily flexible limits of fair and reasonable compensation or is so large that it shocks the judicial conscience.

The Court further noted that a damage award is not subject to scientific computation. 2011 Ill. App. LEXIS 274 at *16. There is no equation that juries are provided for computing damages. In Mrs. Oglesby's case, plaintiff's attorney offered the testimony of her son as well as her doctor to show that the pain and injuries caused by defendant's negligent conduct lead to Mrs. Oglesby's loss of a normal life as well as pain and suffering, which are all compensable elements of monetary damages.

Continue reading "MAXIMIZING DAMAGES IS NOT A SCIENCE, IT'S AN ART (PART 2 of 2)" »

When dealing with the monetary value attributable to a person’s injuries in a personal injury action, the amount of money awarded (what we attorneys call “damages”) is generally for the jury to determine. The First District Appellate Court reminded us of this notion recently in In re the Estate of Oglesby v. Chicago Park District, 2011 Ill. App. Lexis 274 (2011). There, Mrs. Oglesby, a 60-year-old plaintiff suffering from cancer, was injured when defendant's van flipped onto her vehicle causing her face to hit the windshield. Paramedics rushed her to the hospital; she required medication for pain, was treated by two doctors and her son was forced to move in with her to care for her after the incident. She succumbed to a cancer-related death prior to the trial of the matter.

As for her treatment for injuries related to the car accident, the Mrs. Oglesby was initially seen by a Dr. Silverman on September 25, 1998, two days after the accident. Thereafter, she had 12 additional office visits between September 26 and October 27, 1998. During that time, she was treated with hot packs and joint mobilization. The total medical charges were $1,410.

At trial, Dr. Silverman diagnosed Mrs. Oglesby with soft tissue injuries in her neck and back areas. She also sustained acute contusions to her knees and left hand, as well as an abrasion on that hand. Although she suffered trauma to the left side of her head, the neurological test was within the normal range. She sustained secondary limitation of forward and backward motion in her neck area, which intensified with activity. She suffered pain as a result of these conditions, for which Dr. Silverman prescribed pain medication, rest, a course of physical therapy, and sitz baths. He advised her to avoid strenuous activity and wear a Stryker collar. Dr. Silverman continued to see Mrs. Oglesby periodically, but when she had no more complaints relating to the accident, he released her from his care with instructions to come back as needed. Yet, this is hardly the end of the story.

This post continues at DAMAGES IS NOT A SCIENCE, IT'S AN ART (PART 2 of 2)

Nearly everyone who has ever been involved in an accident involving an injury has probably wondered, "Can I sue?" The only way to adequately answer that question is to consult with an experienced personal injury attorney. There are numerous factors that the attorney will consider, including whether or not it will be advantageous to sue. To that end, attorneys must research various avenues, such as potential defendants, the applicable statute of limitation (the allowable time period for bringing a lawsuit), which state or county to file the lawsuit, and relevant legal theories.

Personal injury attorneys are practiced at collecting the appropriate evidence before filing a lawsuit, an important factor in determining who to sue, whether the potential defendants have any assets to go after, and whether or not there is evidence that the injured person contributed to the incident. It is important to evaluate this information before filing a lawsuit. For example, if the driver of the car that hit you was on the job when the accident occurred, his employer may be liable as well. The employer must be named as a defendant to the lawsuit before the statute of limitations runs out. Likewise, if it appears that you are more than 50% responsible for the cause of the incident, it may not be wise to sue. Experienced personal injury attorneys will make these determinations.

Unfortunately, most attorneys cannot take on every case presented to them. Often, when an attorney decides not to take a case, it is not a reflection of the merits of the case, but a decision based on a series of other factors, including the attorney’s practice areas and location, conflicts of interest, or potential recovery issues.

One thing is certain: lawsuits take time. In Cook County, Illinois, it may take two to three years for a lawsuit to reach a resolution, sometimes more. The majority of the time will be spent in the discovery phase, where the attorneys will exchange documents and take depositions. During and after discovery, the parties may have disputes that require drafting and presenting motions to the court. All this may prompt a settlement among the parties, but great trial attorneys are always willing, prepared and able to take their clients' cases to trial if need be.

In a matter of first impression, the First District Appellate Court of Appeals recently decided that an expert doctor's written medical report prepared pursuant to 735 ILCS 5/2-622 (Section 2-622) could be used against the expert as a prior inconsistent statement for impeachment purposes. Iaccino v. Anderson, 940 N.E.2d 742 (1st Dist. 2010).

In Iaccino, plaintiffs brought a medical malpractice action for injuries sustained by a minor plaintiff during labor, claiming that defendant doctor negligently administered the drug Pitocin to the mother, causing hyperstimulation to her uterus and resulting in minor plaintiff's oxygen deprivation. Defendants' theory of the case was that the proximate cause of minor plaintiff's injury was an infection in the placenta that traveled to the fetal brain, causing brain damage before any alleged malpractice by defendants. The trial court permitted defendants to cross-examine and impeach plaintiff's expert with inconsistencies between some of the opinions contained in his written Section 2-622 medical report and his trial testimony. The jury returned a verdict for defendants. Plaintiffs appealed, arguing that the Section 2-622 report is "only a threshold opinion usually prepared at a point before all the facts are fully developed in discovery;" therefore, defendants should not have been permitted to cross-examine and impeach plaintiff's expert witness with the document. 940 N.E.2d at *9-*10.

The First District Appellate Court disagreed with plaintiffs, affirming the trial court and finding that an expert's 2-622 report could be used as a prior inconsistent statement for impeachment purposes.

In a medical malpractice case, the plaintiff must establish the standards of care against which the physician conduct is measured by the use of expert testimony. 940 N.E. 2d at 7. Section 2-622 does not prescribe the form that a written medical report must take and there is nothing in the statute that prevents the author of such a report from qualifying his opinions to make clear that they are preliminary opinions subject to amendment or supplementation upon the acquisition of additional information such as additional medical records or deposition testimony. Id. at *10.

My advice: If your expert's reasons for the breach of standard of care changes by the time the trial of your client's medical malpractice case arrives, make sure that you have thoroughly prepared the expert to explain any inconsistencies that may exist between his report and his trial testimony. This is a credibility issue that medical experts must be prepared to address.

As I have documented over the past few days, demonstrative evidence is no longer limited to hand-drawn models, graphs, charts, or diagrams. Successful trial lawyers now incorporate digital and computer-generated images into their visual strategy when presenting a case to the jury.

A visual strategy is akin to a game plan. For example, when preparing to play a football game, the team’s coach will use the chalkboard/dry-erase board to draw out the plays that he would like the team to make during the game. The trial attorney must develop a similar visual game plan, deciding whether the use of demonstrative evidence is warranted for proof, reinforcement, explanation, or illustration of any points or issues. Likewise, the trial attorney must designate which demonstrative evidence will compliment the testimony of certain witnesses.

A wise trial attorney will take advantage of the wide latitude courts grant them in educating and persuading the jury with the aid of experts and demonstrative evidence. Allow the jurors to think their job is easy because your expert simplified the case with use of demonstrative evidence. Imagination and creativity should not be stifled in preparing for trial. Below are some examples of evidence that could and should be utilized as exhibits during a personal injury trial:

• Blow ups of x-rays
• Life size skeleton or model involving the anatomy
• Charts or graphs
• Computer simulations
• Hardware from surgery
• Tens Unit
• Braces, cane, crutches
• Casts
• Bottles from prescriptions for pain
• Photographs
• Videotapes
• Video recreations of incidents
• Illustrations
• Aerial Photographs

As a personal injury trial lawyer for 20 plus years, I have always been interested in the use and presentation of demonstrative evidence. I know that the future of demonstrative evidence in the courtroom is moving in a digital direction. Demonstrative evidence has historically been an important tool for informing the jury of complex ideas and procedures. As attorneys developed new and creative ways of presenting information, courts have embraced their efforts as is demonstrated in numerous decisions. (See, i.e., "Lights, Camera, Action-Using Videotapes at Trial in Illinois," Vol. 86, January 1998, Illinois Bar Journal). Decisions like Arlton v. Lafayette Retina Clinic, 936 N.E.2d 831 (Nov. 9, 2010)., which I discussed in yesterday's blog, assure me that the justice system is open to accepting creative demonstrative evidence so long as the demonstrative aid is authentic and will assist the jury.

Historically speaking, two cases that I continually favor in support of the use of demonstrative evidence at trial are Van Welden v. Ramsay's Corp., 199 Kan. 417 (Kan. 1967), and Bugno v. M. Sinai Hospital Medical Center, 201 Ill. App. 3d 245 (1st Dist. 1990). When I offer demonstrative evidence -- be it computer-generated simulations or simple diagrams -- I often cite these cases for support.

In Van Welden, plaintiff fell down the stairs at defendant's department store, suffering injuries including a compression fracture of the seventh dorsal vertebra, lacerations of the scalp and other minor lacerations and bruises to the face. At trial, plaintiff's physician testified with the use of an artist's sketch of a thoracic vertebra. On appeal, the Supreme Court of Kansas found no error in allowing the physician to use the sketch to illustrate plaintiff's injury to the jury. The Court stated: "If the sketch be a substantially correct reproduction of the injured part of the anatomy it should be admissible within the trial court's discretion." The test as to the admissibility of medical and anatomical charts is their capacity to inform the jury, and where they are accurate and fully explained, they are admissible even though abstract. 199 Kan. 417, 420.

In Illinois, while the admission of demonstrative evidence is within the discretion of the trial court, the demonstrative evidence must help explain some relevant issue in the case. Bugno, 201 Ill. App. 3d 245, 250 (finding that freehand drawings depicting the condition of plaintiff's leg based on descriptions provided by witnesses were properly admitted where they were highly relevant to the issue of causation and necessary to aid the jury in its understanding of the witnesses' testimony). So long as "demonstrative exhibits [are] relevant and actually explanatory, * * * courts have * * * allowed the exhibits regardless of their emotional effects." Id. at 251.

Last November, the Indiana Court of Appeals decided Arlton v. Lafayette Retina Clinic, 936 N.E.2d 831 (Nov. 9, 2010). Why is this important to Illinois lawyers and victims of medical malpractice? For personal injuries lawyers everywhere this case provides further support for the use of demonstrative evidence when presenting a client's injury to the jury. Persuasive demonstrative evidence appeals directly to jurors’ life experiences and helps jurors understand potentially complex issues. People grasp and retain ideas better when they are conveyed through images and words. Arming the jury with the appropriate information in the most easily-received form empowers the jury to return a just verdict. As the world outside of the courtroom becomes more and more digitally driven, trial lawyers must find ways to incorporate technology into the presentation of their cases. I think that Arlton is a fantastic case that addresses this ever-evolving issue.

In Arlton, Plaintiff suffered from a condition that caused an abnormal growth of blood vessels near the retina, namely choroidal neovascularization ("CNV"), which required periodic laser eye surgery to cauterize the blood vessels. Plaintiff was first treated for the condition in 1987. In 2002, angiogram photos revealed that plaintiff's condition had worsened. As a result, defendant doctor performed laser photocoagulation surgery on plaintiff's eye. During the surgery, defendant doctor's first laser shot into the eye caused plaintiff to jump; as a result, defendant doctor burned the laser spot within the area of a pre-existing scar, which ultimately caused plaintiff to suffer a post-surgery blind spot.

Plaintiff brought a medical malpractice action against defendant doctor and his clinic, alleging that he suffered permanent injury to his eye as a result of laser eye surgery. The primary issue at trial centered around the location of the laser spot that caused plaintiff's blind spot. Plaintiff and defendants stipulated to the admission of digital images from angiograms performed before and after the surgery at issue. Each juror was provided a color copy of all of the photos in an exhibit binder. The trial judge, however, sustained defendants' objection to plaintiff's admission of enlarged copies of the angiogram images. The judge also sustained defendants' objection to plaintiff's request to provide the jury with access to the digital information on the previously admitted CD-ROM discs. The jury returned a verdict for the defendants. Plaintiff subsequently appealed.

The Indiana Court of Appeals reversed and remanded, holding that the trial court abused its discretion when it sustained the defendants' objection to the admission of the enlarged photos, stating that there was no evidence that the photos were altered in any way other than to enlarge them. In support, the Court noted that Indiana Evid. R. 1001’s definition of a "duplicate" includes enlargements, and its Rule 1003 allows for the admission of duplicates unless there was a question of authenticity or the duplicates would otherwise be unfair. At trial, plaintiff's expert specifically testified that at least one of the enlargements was an accurate "reflection" of a digital image that had already been admitted into evidence without objection. Therefore, the Court of Appeals found no issues of authenticity or any other reason to deny admission of the enlargements.

Regarding the digital images, the Court also recognized that the trial court abused its discretion by denying them to the jury. To that end, the Court provided two possible suggestions for providing a jury access to digital evidence: (1) transforming the evidence into a medium that is accessible without a computer (such as providing the information in the form of a DVD); or (2) providing the jury with a "clean" computer that contains no other information and which has no ability to access the Internet.

Continue reading "DEMONSTRATIVE EVIDENCE IN MEDICAL MALPRACTICE CASES, PART 1 OF 3" »

A recent study showed that female Spanish high schoolers who bike to class score better on tests then those who commuted in car or bus. Some researchers believe that this might be due to the fact that active commuters are getting more exercise. They could be more alert by the time they start school, which could affect how well they do on tests. It may provide them time to reflect and mentally prepare for the day, giving them an edge.

So what does this have to do with trial lawyers? During voir dire, perhaps asking how potential jurors commute and what their activities are could assist trial attorneys in seeking out active jurors as opposed to the traditional “couch potatoes.” Active jurors tend to stay awake during trials. Active jurors may be mentally prepared for a day of testimony. Others are not. This is something to consider when selecting jurors. It is also something to consider when deselecting jurors.

Facebook now reaches over 500 million users. The movie "The Social Media," is a big hit. It isn’t hard to figure out that it has become relatively easy to find very personal information about almost everyone, including perspective jurors. This is a fact; and, there’s no turning back.

Open the browser on your smart phone during voir dire and voilà: you might be lucky enough to uncover an enormous amount of juror information, including race, religion, political proclivities, and philosophical tendencies. Off-color and forbidden topics? Yes, perhaps that too.

So, should lawyers be allowed to research jurors in the courtroom? In Carino v. Muenzen, 2010 WL 3448071 (N.J. Super A.D. August 30, 2010), a New Jersey plaintiff's lawyer using courthouse-provided wi-fi internet access during voir dire in a medical malpractice trial, researched juror's web profiles in open court. The judge, curious about the lawyer's use of his computer, inquired:

The Court: Are you Googling these [potential jurors]?

Plaintiff’s Counsel: I’m getting information on jurors -- we’ve done it all the time, everyone does it. It is not unusual.
….

The Court: No, no, here is the rule. The rule is it’s my courtroom and I control it.

The judge ordered the attorney to close his laptop. The New Jersey Appellate Court exculpated the attorney, stating that prohibiting web searches during voir dire was unreasonable, and noted:

There was no suggestion that counsel's use of the computer was in anyway disruptive. That he had the foresight to bring his laptop computer to court, and defense counsel did not, simply cannot serve as a basis for judicial intervention in the name of “fairness” or maintaining a “level playing field.” The “playing field” was, in fact, already “level” because internet access was open to both counsel, even if only one of them chose to utilize it.

Ultimately, the lawyer failed to demonstrate any prejudice that resulted from the trial court’s ruling. I find the commentary on the use of computers in the courtroom necessary. Attorneys have a duty to their clients to make the most informed decisions possible when selecting or deselecting jurors. We should use any and all of the information we can obtain about the venire. Trial attorneys would be prudent to check local rules, keep your laptops centered in front of you and prepare a brief in support of use of the internet during a trial. If all else fails, conduct your research outside of the courtroom.

In my last three personal injury jury trials, I was amazed how effortless it was to research potential jurors on-line, many either unaware of Facebook privacy settings or simply unconcerned with their web presence. At my firm, lunchtime during jury selection has been replaced with a mad-dash to research as many jurors as possible on Google, LinkedIn or Facebook. We proudly (dare I say dutifully) collect such information with prowess. With a click of the mouse/swipe of my finger, I have discovered who potential jurors’ have “friended,” whether they are a fan of “I bet we can find 1,000,000 People who Support Same Sex Marriage," and whether their “Likes & Interests” included contributions to political campaigns. All valuable, and timely information since time is often not a luxury when selecting a jury.

The key to winning a personal injury jury trial is preparation. You must "out-prepare" your opponent, in order to try to gain every advantage. Knowing the jury better than your opponent is part of that, and in 2010 and beyond, the internet can provide an important window in to the lives and minds of prospective jurors.

Continue reading "SELECTING JURORS IN 2010 AND BEYOND" »

Is your body behaving in a way which is consistent with the words you are using while testifying? For example, you are sitting in a deposition and the opposing attorney is asking you a series of questions. Your arms are crossed. Your brow is furrowed. Both your legs are shaking. You cannot make eye contact. Trust me, opposing counsel will strongly believe that you are not very sure of yourself and will ultimately question your credibility. On the other hand, lounging or appearing too casual in you chair will not gain credibility. Somewhere in between the look of total relaxation and hyper arousal is the look you want your body to have during the deposition.

Like it or not, your face signifies your emotions. Your facial expression will become part of your total picture. Are you the type of person that rolls their eyes? Those little nuisances can be negative influences in a deposition. Similarly, body language is an aspect of your communication that you can and should use to your advantage. Be aware of what your body is doing at all times so that its movements matches your thoughts, feelings and testimony. Similarly, the deposing counsel’s body language will show you what effect you are having on that attorney. Here are a couple of tips for effectively communicating in a deposition.

1. Look people in the eye when you testify. It sounds simply but it shows confidence.

2. Try and control your bodily positions. If you are nervous, try and appear relaxed. However, it is a fine line because you do not want to appear disinterested.

3. Control your facial expressions. True, some are better than others in displaying a poker face. Once you start showing that you are bored, angry, or some other negative emotion, the opposing counsel will use that to their advantage. When you let your guard down, that is when you are most vulnerable.

4. If you have type A tendencies, lessen them, if possible. There are people that tend to interrupt others. When you do, you can be perceived as rude and uninterested. Avoid sarcasm or hostility when communicating. None of that is helpful. Remember, opposing counsel is not only judging what you say but how you say it as well.

5. Read other people’s body language. You will quickly know how effective your testimony when you are examining their posture, their fidgeting or their rolling of the eyes.

Jeffrey J. Kroll has lectured on legal topics on over 100 occasions throughout the country and has had numerous articles published in legal journals on topics such as jury selection, preparing expert witnesses, trial techniques and the role of storytelling in a personal injury trial. For more on Jeffrey J. Kroll visit his firm website.

I often hear on the news or read in that a person filed a lawsuit seeking $50,000.00. In reality, many times, the plaintiff is seeking in excess of that amount. This bit of information cited by the media originates with the "ad damnum" clause, which is a part of the complaint at law filed on behalf of plaintiffs. The clause typically states, "WHEREFORE, Plaintiff, JANE DOE, demands judgment against Defendant, COMPANY X, in an amount in excess of FIFTY THOUSAND DOLLARS ($50,000.00).

The ad damnum clause does not specify the amount of damages sought as much as it specifies to which division of the court the case should be assigned. In Cook County, where the majority of my personal injury and wrongful death cases are handled, there is a municipal division and a law division. Stating in the complaint at law that Plaintiff seeks damages in excess of $50,000.00 places the cause of action in the Law Division for actions pending in the City of Chicago.

Continue reading "CHICAGO PERSONAL INJURY ATTORNEY EXPLAINS "AD DAMNUM" CLAUSE" »

Many cases are won or lost by the testimony of a witness. It is less than ideal when the witness is trying to remember dates or events and comes up blank. As a trial lawyer, we know the significance of “lack of memory.” It is used as both a shield and a sword in the courtroom.

Over the last 40 years, psychologists and individuals working to improve memory have found three methods which consistently improved word memory. They are as follows:

1. Imagery. Word memory is assisted by creating an image of what you would like the witness to remember.

2. Elaboration. This is where you have an individual cogitate of associations to help anchor words in their mind.

3. Generation. Memories improve when your witnesses are required to work their minds to generate the target or phrase.

Research has demonstrated that employing these three methods have produced memory improvements of ten percent over simply reading words once.

In a new series of studies published in the Journal of Experimental Psychology: Learning, Memory and Cognition, there is now evidence for a fourth method to enhance word memory. How? Simply by saying the word you want to remember out loud or even “mouthing the word” will improve memory by increasing its distinctiveness. How does this come into play for a trial? If you are working with a witness and want the witness to retain important parts, the key is to identify the right words and have them vocalize the words or “sub-vocalize” them. The more they discuss the words “out loud,” the more successful their memory will be with the key points.

Through choice and sometimes necessity, I have taken dozens of cases to trial. All have involved people injured or killed due to the negligence of others. Sometimes from an auto or trucking accident occasionally from railroad accidents or construction or workplace negligence. Regardless, of how the person was injured, one of the most important aspects as a trial approaches is preparing your client to testify. In advance of testifying at trial, here is a brief “to do” list for victims of negligence:

∙ Make sure you have had the opportunity to review your interrogatories, prior deposition transcripts, photos, videotapes, etc. In other words, review everything.

∙ If there is something the attorney should know about your background or your injuries, tell them. Attorneys are not mind readers and can usually minimize any problem...if they know about it.

∙ Familiarize yourself with any exhibits or demonstrative evidence that would or could be used during the trial. Make sure you see everything your attorney, as well as opposing counsel, intends to use with you.

∙ Identify any and all weaknesses so they can be successfully fronted.

∙ Identify any concerns you may have with your direct testimony or the opposing attorney’s cross examination.

∙ Ensure you know what the case theme or theory is and how your testimony fits in with that theme or theory.

∙ Consider videotaping yourself in advance of trial? Watch it and look for any nervous habits you may have. Attempt to void yourself from any of your distracting habits. So id does not offend jurors.

∙ Avoid “boredom” while testifying. It sounds simple but it is not. Use voice inflection or other tools to change the pace or tone of your testimony. If need be, stand in front of the jury or change the mode of the presentation to “wake up the jury.”

∙ Dress appropriately. Find out from the lawyer what is the appropriate attire for that particular jurisdiction.

∙ Be polite and respectful to everyone. Everyone includes court personnel, opposing attorneys and anyone else you come in contact with in the elevators, lobby of the building or the courtroom.

∙ Be organized. Know where the attorney will be going with your examination. Tell the jury a story. In other words, have a plan.

∙ Try and work with the attorney in developing analogies as a means of clearly describing your injuries or how the incident occurred.

∙ Make eye contact with the jurors. It is important that they trust you. By looking away or by failing to make eye contact with jurors, a level of distrust can be created.

∙ Before trial, it is imperative that you meet (at length) with the attorney that will be asking you the questions. Ensure that the attorney meeting with you will be the one asking the questions.

Preparation is the key to success in the courtroom. As the saying goes, “if you fail to prepare, you are preparing to fail.”

Typically, a focus group is comprised of twelve individuals who are brought together for two to four hours to watch a short presentation of a legal case and discuss the various issues raised. It is a way of gathering information about the attitudes, beliefs and values of a community. Some trial lawyers still doubt the value of focus groups. They say they are too expensive, or too unpredictable. For those skeptics, focus groups are invaluable.
Participating in athletics taught me life long lessons. For example, after being on the wrong end of a game, it was not unusual for a coach to address us and let us know that losing is an educational experience. As a child, that may have been true. As a lawyer, you do not need to suffer a loss to educate you on “what went wrong.” Talking with jurors after a verdict is reached can be a painful experience. You learn that certain issues or pieces of evidence were important to the jurors, assumed by them, or more importantly, misunderstood by them. Typically, our reaction is something along the lines of “I wish I would have known.”
Practice and preparation can make perfect. Focus groups enable attorneys to see first hand how a jury perceives the issues of the case. In doing so, you learn by preparation . . . not by losing.

WHAT DO ATTORNEYS LEARN THROUGH THE USE OF FOCUS GROUPS?

I. FOCUS GROUPS ASSIST ATTORNEYS IN EVALUATING THE VALUE OF CASES

A focus group can help you settle a case. It is amazing to see how quickly a client’s position changes after a focus group awards a sum much different than anticipated. A focus group can quickly open a client’s eyes as to troublesome liability issues. You will also see how a focus group analyzes the non-economic and economic damages of the plaintiff.
Conversely, there are times when lawyers are intensely concerned about the difficulty of some legal issue or factual dispute involved in a case. As it turns out, the focus group that hears the case may think these issues are not nearly as significant. Under those circumstances, a modest settlement offer, which may have been somewhat tempting before the focus group, may then be rejected with a greater comfort level.

II. FOCUS GROUPS SERVE AS A MEANS OF PRACTICE AND PREPARATION

World class athletes practice for countless hours before every contest. I find it ironic that we as lawyers will take a case to verdict, a case often involving enormous sums of money, and not use similar levels of practice.
A focus group allows the attorney the opportunity to practice and prepare for their upcoming trial. It is a great time to experiment with a new argument or see how a case them works. The attorney has the opportunity to look “jurors” in the eye and determine how the presentation of potential evidence and/or testimony will be received. Without a focus group, it may be too late.

III. FOCUS GROUPS ENABLE THE ATTORNEY TO DETERMINE IF A JURY’S ATTITUDES AND EXPERIENCES WILL CO-EXIST WITH THE FACTS OF A CASE

Focus groups furnish a valuable insight in cases that involve complex, controversial or disputed issues. One key to a successful focus group is the ability to have some type of direction or control over which issue you would like addressed. A fresh outlook obtained through a focus group, especially cases involving issues that you have not been associated with, can open your eyes and enable you to see and recognize more clearly the strengths, weaknesses and viability of such claims.

IV. FOCUS GROUPS ASSIST ATTORNEYS IN DESELECTING POTENTIAL JURORS.

Jury selection or “de-selection” is unquestionably one of the most crucial aspects of any trial. Focus groups enable an attorney to listen to a number of issues that impact a juror’s thought process . . . even though there may not be any evidence to support their views.

V. FOCUS GROUPS ELICIT REACTIONS . . . BOTH NEGATIVE AND POSITIVE

In our daily lives, it is not difficult to get reactions. How many times a day do you hear the question, “what did you think of the game last night?” Inevitably, there is a reaction. You need to know a juror’s reactions prior to the trial . . . not after a trial. It is disheartening to talk with jurors after a case and learn that they did not believe your client because a specific issue was not developed. If you would have known this fact prior to the trial, you may have won. In other words, you did not know what “buttons needed to be pushed” for these potential jurors.
Listen to the members of the focus group. People in focus groups ask questions that must be answered at a trial. To have the foresight to know the questions that jurors will have and to answer them throughout your case gives you power. It gives you control. It increases the probability of advocating your client’s rights. Going back to our formative years, I think we would all agree it would be much easier taking tests if we knew the questions ahead of time. Knowing what questions a juror will be asking makes it easier to take this “test.” Focus groups enable you to answer their questions prior to trial.

CONCLUSION

Focus groups are an invaluable tool. Focus groups permit attorneys to discover important and profitable information. They allow attorneys to create, test and/or evaluate themes prior to trial. More importantly, focus groups enable attorneys to thoroughly understand community attitudes or the way potential jurors will view certain issues in a case. Examining the results from the discussions and conclusions of each focus group will offer a wealth of information.
One word of caution to attorneys is that focus groups are not the Utopia in the trial of a case. One reason we have all been successful in the courtroom is because of our instincts in understanding the reactions of individuals. Rely on your instincts in the trial of your case. Do not set aside your own experience as a lawyer in making decisions about a trial.

Jeffrey J. Kroll has obtained numerous favorable jury verdicts and settlements for his clients in matters of personal injury, wrongful death and medical malpractice cases. He often uses focus groups to help give his clients the advantage and ensure a favorable outcome at trial or mediation. Contact the Law Offices of Jeffrey J. Kroll today if you or a loved one have been injured. Attorney referrals are welcome.

In observance of National Collision Awareness Month, School Transportation News featured attorney Jeffrey J. Kroll in an article promoting safe driving tips. The article (which can be read in its entirety here), provides the following simple safety recommendations:

• Eliminate distractions while driving. Focus on the road, not the backseat or that hot cup of coffee, when you are behind the wheel.
• Don't multitask while driving. Never text or email. Also, refrain from adjusting the radio, applying makeup or snacking. Taking your eyes off the road, even for a second, can create a lifetime of loss.
• Keep your vehicle clean. Keep the area near your accelerator and brakes free from debris.
• Don't ever drive impaired. Call a friend, take a taxi, or use public transportation if you feel you are unable to drive for any reason.
• Drive with your headlights on, even during the day.

The Law Offices of Jeffrey J. Kroll encourages all drivers to take the time this month to evaluate their driving practices in an effort to make our roads safer.

The international sensation, Susan Boyle, has re-taught us an age-old lesson that you cannot always judge a book by its cover. The Britain's Got Talent star appeared dowdy and awkward as she appeared on stage. The judges and audience around the world doubted her ability to sing based on her appearance. Ms. Boyle definitely blew everyone away when she started singing, "I Dreamed A Dream." Apparently, everyone's expectations of her were so low based on how she looked and you could see audience members at the show snickering at her. Trial lawyers should also take note of the lesson here on how a person's appearance affects others expectations of them. At trial, it is essential that you grasp the opportunity to manage the jury's expectations.

Like it or not, people do judge others based on their appearance. It is not always fair, but it is a fact. Keep this in mind when you are on trial. This principle applies to your own appearance, the appearance of the plaintiffs and defendants and the appearance of the jury.

My advice would be to make a good impression from the start because appearances do make an impression. That being said, it may be a good idea to explain, perhaps during your opening statement, any of your client's idiosyncrasies or behaviors if you think that the jury is judging him or her on that basis. Use the opportunities that you have before the jury to emphasize your client's positive attributes or the factors that are at issue in the case, such as your client's injuries.

With regard to jurors, keep in mind that you really should not judge them based on appearance alone, which is why effective voir dire is essential.

Continue reading "CHICAGO TRIAL ATTORNEY SUGGESTS YOU MANAGE THE JURY'S EXPECTATIONS" »

As a plaintiff’s personal injury law firm, the Law Offices of Jeffrey J. Kroll deals with expert witnesses on an almost daily basis. Jeffrey J. Kroll has lectured to expert witness organizations on a number of occasions and the most common question asked of him is “what are you looking for in an expert witness?” What I want from an effective expert witness is simple - yet, difficult to find. Although Christopher Columbus sailed the Seven Seas, we set sail for different “C’s” in our search for an expert witness. What we seek in an expert witness is the following:

1. Credible - Another way of gauging an expert’s credibility is assessing his or her believability. Is this expert believable? If the expert has published something which is inconsistent with the opinions in your case, that could impact his or her credibility. It often takes years to build credibility as an expert witness and only one case to destroy it. Experts should be careful in getting involved in the wrong cases.

2. Competent - We often utilize teachers as experts. When an expert stays within their area of expertise, they often are very effective. Many experts get in trouble when they venture outside of their “sandbox,” their comfort zone. You need to find out the expert’s true area of expertise.

3. Convincing - I want an expert that is persuasive. An expert witness needs to recognize any nervous habits and figure out/discuss how to avoid them during their testimony. When the jury goes back to deliberate, I do not want them talking about how my expert fidgeted with a pen or looked at the ceiling before every answer. Convincing encompasses every part of examination, not just direct.

4. Confident - There is a fine line between confidence and cockiness. Jurors appreciate confidence. They do not like cockiness. An expert should attempt to maintain the same disposition on direct examination and cross examination.

5. Caring - When an expert appears that he or she is attempting to “right a wrong,” the system works. A jurors will see through the expert that is involved in the case solely for financial gain.

6. Creative - I like when an expert is able to assist me with developing a theme for the case. I like when an expert chooses exhibits that effectively gets across our case theme with the jury. An expert is an intrical part of the trial team and should be used to maximize their own effectiveness.

7. Communicate - Jurors are searching for their guide. They are searching for the teacher. I need an expert to persuasively communicate our theme, our message, to a jury.

If you think about it, the qualities that make someone a good dinner companion (personable, open, entertaining, engaging, fascinating) also makes a good expert witness. As a lawyer, I know that if a jury follows my experts in the battle of experts, it is because I won the battles of “C’s”.

The Chicago Sun-times recently reported that jurors are sending Twitter messages from courthouses across the country about their service. Experts said Tuesday that most messages posted to the social networking site are innocuous, perhaps expressing boredom.

But at least a few jurors have gone online to discuss cases they are helping decide.

In Philadelphia this week, a juror in a high-profile public corruption case told Facebook friends to “Stay tuned for a big announcement on Monday” — forecasting that a verdict was near.

Jurors are instructed by the judge presiding over their case that they are not to discuss the cases with anyone until they are dismissed upon the conclusion of the case. They are to judge the evidence in the case without outside influences. I support updating jury instructions to clarify that online communications about a case, via email, Facebook, Twitter, or otherwise are prohibited.

A recent study sponsored by Texas Tech University concludes that English-speaking Hispanics fare better in the courtroom than their non-English-speaking counterparts. In fact, a non-English-speaking Hispanic is 15% LESS likely than an English speaker to obtain a better jury trial verdict than the last settlement offer. This finding corresponds to a different study, published in the Social Sciences Quarterly , in which researchers found that Spanish-speaking Hispanics express less trust in juries than non-Hispanic whites and other English-speaking persons. The authors concluded that "faith in the jury as a more trustworthy decision-making body [than a judge] is weakest among those groups that have a history of discriminatory treatment in the legal system and who are less acculturated on other measures, such as language dominance."

The study noted that Hispanic individuals who do not speak English very well, or perhaps at all, must testify in Spanish which necessarily results in the use of a translator and perhaps some loss in communication with the jury. Consequently, "less than optimal communication between the plaintiff and the jury may result." Moreover, testifying in Spanish may subject the plaintiff to various biases, discrimination and prejudices. Such effects, the study notes, may be especially prevalent in group contexts, such as a jury of twelve individuals.

This study makes me question whether non-English-speaking plaintiffs are receiving the fair and impartial trial to which they are constitutionally entitled. This study raises important questions that policymakers, lawmakers and community leaders should consider and address. More importantly, a trial lawyer needs to take this into consideration when presenting evidence when representing a non-English speaking plaintiff.

Continue reading "ARE CIVIL JURIES PREJUDICED AGAINST NON-ENGLISH SPEAKING PLAINTIFFS?" »

A juror’s responsibility is to pay attention, retain information and participate in jury deliberations. Does that conflict with some members of the venire? The percentage of Americans taking medication is rising and lawyers have begun asking potential jurors what kinds of medication they are actually taking. In fact, Science Daily cited a study from Boston University's Slone Epidemiology Center finding that in a given week, over 10 million Americans are taking opioids.

Of course, asking a jury whether or not they are on medication could be a death knell for a trial lawyer. You risk upsetting the judge and looking terrible in the eyes of jurors. Also, some judges maybe reluctant to allow such personal questions to be asked of potential jurors as it could be in direct conflict with the privacy provisions of the Health Insurance Portability and Accountability Act.

I think it could be very important to find out if a juror is taking a medication. Moreover, you want to know what they are taking. If a juror is taking some type of anti-depressant or mood changing medication, it could impact their ability to stay awake and alert during an extended trial. Some jurors, without any fault of their own, fall asleep during trials due to the medications they are taking. I believe lawyers have a right to know anything that can conceivably affect their client’s case.

I think the prudent course of action would be to ask a juror in some type of juror questionnaire or in open court, “are you taking any type of medication?” If the answer is yes, that issue should be addressed in a side bar, outside the presence of the other jurors. I believe this line of questioning could be appropriate in many types of cases. I am concerned about any juror who may be taking some type of anti-psychotic medication or some other medication that would be make them drowsy during a trial. The side effects of some drugs can interfere with the jurors’ ability to sit and concentrate during a trial. With the commercialization of many of these drugs and without many knowing the side effects, this line of questioning should be appropriate for a jury trial.

For additional information on this topic see the recent National Law Journal article, "What's Your Juror Taking?"

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