Statutory Employment And Peripheral Employees

Statutory Employment And Peripheral Employees

Statutory Employment And Peripheral Employees: Reforming Scc 42-1-400

By Thomas Gagne, Esq.

For the last two years, Jacob “Jake” Oak had worked as a contract security guard for Apex Automotive in Bedford, South Carolina. He did well and was well liked. Management especially appreciated Jacob’s “squared away” attitude. Rumor had it that Apex was about to offer him a full – time position, which was fine as far as Jacob was concerned. Working directly for Apex not only meant better pay and job security, it meant finally having decent medical insurance.

Unfortunately, Jake’s bright future came tumbling down one evening when, as he was making his usual rounds, he stumbled into a hole recently excavated by the company’s maintenance team, part of a project of laying high speed internet cable.

Jake’s fall left him seriously injured. His ACL and MCL ligaments in his right knee were completely severed. If Jake wanted to walk again he would need a total knee replacement, but, even with the replacement, it was doubtful he would be able to return to work as a security guard. But if Jake did not want to spend the rest of his life in a wheelchair he would have to risk the surgery.

The operation was a success. Unfortunately, post-operative sepsis set in which led to the amputation of Jake’s right leg above the knee. An active person all his life who enjoyed cycling and softball, Jake’s physical limitations triggered a severe case of depression. Anti-depressants proved ineffective, but the carrier refused to refer him to a counselor. Jake realized he needed an attorney.

The attorney filed a workers’ compensation claim against Jacob’s direct employer, National Security Services, and a premises liability suit against McDonald Aircraft, his indirect employer, based upon its failure to properly cure or warn of a dangerous condition.

Six months later National’s carrier settled the workers’ compensation case. Jake was awarded permanent and totality disability benefits plus future medicals. McDonald, on the other hand, moved to dismiss the negligence action, contending that Jake was a “statutory employee,” therefore immunizing it from suit under the Exclusivity Rule. The court agreed with McDonald and dismissed the suit with prejudice, despite the fact that McDonald’s primary business was the manufacture of airplanes, not security, and that McDonald had always subcontracted its security force at the Bedford facility. Except for legal costs, McDonald and its carrier walked away scot-free.

The facts in the fictional but by no means fanciful Oak v. Apex are not uncommon, and the result is arguably correct under current law, but is it equitable? Or is it time to reform South Carolina’s statutory employee law in cases like Jake’s?

A Brief Primer On South Carolina’s Workers’ Compensation Law and Contract Employees

Employees injured within the scope of their employment have long enjoyed the right to be compensated by their employer and its workers’ compensation insurance carrier. A seven-member commission, headquartered in Columbia, administers the workers’ compensation system in South Carolina. They individually adjudicate cases, meet en banc to hear appeals, make rules, and generally manage the agency.

Any injury arising out of and in the course of one’s employment is compensable. Injured employees need not prove negligence in order to recover damages. Damages are generally less than what a claimant could receive via a tort suit for a variety of reasons – pain and suffering is not a cognizable damage, the range of damages are more or less predetermined by the worker’s salary, the severity of the injury(ies), and the body part(s) involved, etc. Other features of the process include streamlined adjudication, relaxed evidentiary rules and an Exclusivity Rule which prohibits injured employees from seeking damages by any means other than by a workers’ compensation claim.

Now, when one employer (call her the “direct employer” — usually an employment agency) “leases” an employee to a second employer (the “indirect employer”), the resultant “indirect hire” may or may not be deemed an employee of the indirect employer for purposes of workers’ compensation benefits, depending on the application of the statutory employment statute SCC 42-1-400.

The determination that an indirect hire is a statutory employee of the indirect employer can be a double-edged sword. If the direct employer does not carry workers’ compensation insurance, the indirect employer assumes the burden of compensation — good news for the indirect hire. However, if the direct employer carries workers’ compensation insurance then the indirect employer is off the hook for workers’ compensation benefits. * If the indirect employer has also been negligent, as illustrated in Jake’s case, she is immune from tort liability per the Exclusivity Rule. If, however, the indirect hire is not a statutory employee of the indirect employer, she may pursue tort damages from the indirect employer and workers’ compensation damages from her direct employer, subject to an offset. **

SCC 42-1-400

The central issue is: who qualifies as a statutory employee?

SCC 42-1-400 controls the determination of statutory employee status. It reads: When any person . . . undertakes to perform or execute any work which is part of his trade, business or occupation and contracts with any other person . . . for the execution or performance by or under such subcontractor of the whole or any part of the work undertaken by such owner, the owner shall be liable to pay any workmen employed in the work any compensation under this title which would have been liable to pay if the workmen had been immediately employed by him.

If an indirect hire qualifies as a statutory employee of the “owner” under SCC 42-1-400, she is considered an employee of the indirect employer, entitled to workers’ compensation benefits, but barred from suing the owner in tort per the Exclusivity Rule. South Carolina’s legislature enacted SCC 42-1-400 in order to provide workers’ compensation benefits to subcontracted employees whose direct employers fail to carry workers’ compensation insurance. It was designed to prevent employers from hiring indirect employees as a tactic to avoid carrying workers’ compensation insurance. If the indirect employee is deemed a statutory employee under SCC 42-1-400, and, providing other requirements are met, the indirect employer bears the burden of compensation, probably if the direct employer is also insured, definitely if it is not insured.

The key question in determining the status of an employee within this context is: what does “part of his trade, business or occupation” mean? Over the years, the decisional law in this area has been lively to say the least.

Ost vs. Integrated Products

Ost v. Integrated Products, 296 S.C.241, 371, S.E.2d 483 (1988) does a good job delineating the factors courts consider when determining an employee’s status: 1.) Is the activity an important part of the organization’s business? 2.) Is the activity a necessary, essential and integral part of the organization’s business? 3.) Has the activity previously been performed by the owner’s employees? 4.) Are the employee’s duties part of the ordinary and customary business of the owner/employer? A movant need only establish one element to prevail. Courts are also free to consider the totality of facts and circumstances in any given case, and, since the question is fundamentally jurisdictional, the court may consider the entire record. See Marchbanks v. Duke Power Company, 190 S.C. 336, 2S.E.2d 825 (1939), Boseman v. Pacific Mills, 193 S.C.479, 8 S.E.2d 878 (1940), Bridges v. Wyandotte Worsted Company, 243 S.C.1, 132 S.E.2d 18 (1963), and Poch v. Bayshore Concrete Products 405 S.C. 369 747 S.E.2d 757 @ 761 (2013).

Ost evinces our legislature’s intention to protect indirect hires by making it easy for them to claim statutory employment status. Its first two tests bear this out as all employees are, normatively, important, essential, integral and/or necessary to a business’s operations. Put another way, what manager would admit she has personnel on the payroll who are not important and so forth to an operation, especially during this era of belt tightening? The challenge, from an indirect employee’s point of view, is that employers use SCC 42-1-400 to claim immunity from tort actions which could otherwise be brought by that very class of employee the statute was designed to protect. This has led to some arguably unjust results, as the fictional, but by no means fanciful, case of Oak vs. McDonald illustrates.

Should a broad standard apply when determining if an indirect hire is a statutory employee of a particular employer for the purposes of her receiving workers compensation benefits, and another, more stringent one, when a colorable claim of negligence can made against that same employer? In other words, should there exist a double standard when negligence may be present, thus allowing some indirect hires two bites at the apple? Another related question: does SCC 42-1-400 consider the inferior station of indirect hires, especially peripheral indirect hires, in the workplace vis-à-vis their direct counterparts? The answer to these questions may lie in the nature of “temporary labor,” policy justifications for the Exclusivity Rule, and the principles of premises liability law.

Direct hires occupy a privileged position within a business. They enjoy greater benefits than indirect hires, including those most prized — medical insurance and pension plans. Direct hires are more likely to receive raises and promotions, are usually harder to fire, and are less likely to lose their jobs during economic downturns. Indirect hires, on the other hand, occupy a second-class position within a firm. There are no mutual obligations between the indirect hire and the owner, no future expectations on the part of either party, other than the purely quid pro quo of a salary for labor. They enjoy few, if any, of the advantages direct hires take for granted and are generally less expensive to employ. Even their nickname – “temp” – rings pejorative.

Now, because of their preferred position, direct hires are more aligned with the business owners’ interests than are their indirect brethren. They are, in the context of this analysis, extensions of, or alter egos of, the owners. Within this context, the Exclusivity Rule makes sense since “owners” cannot sue themselves. Conversely, indirect hires have much less “skin in the game,” especially those whose labor is incidental to the business’s main product or service or is not normally performed by direct hires. These indirect hires can be likened to guests, or “business invitees,” and, as such, should be afforded the highest standard of care, at least according to the traditional principles of premises liability law.

Yet when it comes to being able to sue in tort, or rather not being able to sue in tort, the law treats direct and indirect hires equally, providing the indirect hire qualifies as a statutory employee. Why should indirect hires (particularly peripheral hires) share this disadvantage with direct hires if they are not otherwise equal? Does this violate notions of equal justice? Equally important is the question: was SCC 42-1-400 meant to be used as an employer liability shield?

An owner might respond that no duty exists to ameliorate the “second class” status of indirect hires by granting them extra rights. Differences in employee status are one of business’ defining features. Moreover, the law does not aim to make everyone equal. It merely requires that parties similarly situated receive equal treatment. Besides, one does not hear an indirect employee complain about being treated like a direct employee when SCC 42-1-400 operates to vouchsafe their workers’ compensation benefits.

An indirect hire might respond in a couple of ways. Revising the Exclusivity Rule or SCC 42-1-400 to allow some indirect hires to recover in tort is not intended to make employees “equal.” It is a logical consequence of their “guest-like” status within a business. And if reform results in a double standard, so be it. There is nothing wrong per se with a double standard if it reflects differences ab initio in the status of the parties under consideration. Moreover, revising the law would incentivize owners to make their property safer. The decrease in injuries would more than offset the costs of eliminating dangerous conditions. A safer workplace also promotes healthier employees, less absenteeism, greater productivity, and a more conscientious business culture. The firm’s image benefits as “poor housekeeping” indicates a management that tolerates carelessness.

Of course, seeking legislative action is always a reach. If the aim is reform, a more efficient method might be for the courts to narrow their reading of SCC 42 – 1-400. In fact, as the cases below show, our courts have already made a few tentative steps in that direction.

Harrell, Abbott and Olmstead

When determining the status of indirect hires, South Carolina and federal courts have compared the relative duties of indirect and direct hires and concluded that indirect employees who perform duties direct hires do not normally perform are not considered statutory employees. See Harrell v. Pineland Plantation, Ltd, 337 S.C. 313, 323, 523 S.E. 2d 766, 771 (1999). Following a multistate review of the decisional law in this area, the court in Dickerson v. Eastman Kodak Company, 569 F. Supp. 1221 (D.S.C. 1983) echoes the Harrell test:

…from these cases it will be readily seen that the test is not one of whether the subcontractor’s activity is useful, necessary, or even absolutely indispensable to the statutory employer’s business, since, after all, this could be said of any repair, construction or transportation service. The test is whether this indispensable activity is in that business normally carried on through employees rather than independent contractors.

Id at 1224 (emphasis added). The “normally performed” test extricates us from the labyrinthine collection of standards which have developed over the years. It is relatively unambiguous, depending on how one defines “normally,” and, since it is not as broad as the “important, necessary, essential or integral” test, many indirect hires would still be considered employees subject to the Exclusivity Rule – good news for indirect employers. It also preserves the totality of circumstances test when the facts are not readily dispositive.

Post – Harrell, another test emerged in a line of cases involving indirect hires transporting raw materials. In Abbott v. the Limited Inc., 338 S.C. 361, 526 S.E.2d 513 (2000) and Olmstead v Shakespeare 354 S.C. 426, 581 S.E.2d 486 (2003), the court held that an indirect hire of a common carrier is not a statutory employee if transportation is not part of the primary or core business of the employer. The core business of the owner in these cases was manufacturing, not transportation. This doctrinal shift defeated the defendant s’ contention that the employee was an “important, necessary, essential or integral” part of the employer’s business and therefore a statutory employee.

Abbott and Olmstead are significant because the court could have easily found the employees to be statutory employees. Factories need raw material. Raw material requires transportation. Transporting raw material may not be directly related to the manufacturing process, depending on how stringently one defines “directly,” but it’s hard to argue that transportation is not an important, necessary, essential or integral part of the manufacturing process. Remarkably, the Abbott and Olmstead courts simply declined to apply the traditional standard, striking out in a new direction altogether.

At first, Abbott and Olmstead appeared to replace the Ost standards with the “primary business” test, but then they put on the brakes by limiting the new standard to transportation cases. Nor do these cases overrule the “important, necessary, essential or integral” tests. Granted, the facts in these types of cases can be convoluted, but do Abbott and Olmstead reflect an unnecessary flexibility (and hence unpredictability) in this area of the law? Do they aggravate the problem by not specifically overruling the fundamentally illogical “important, necessary, essential or integral” tests?

Keene v. CNA Holdings, LLC, 426 S.C. 357, 827 S.E.2d 183 (S.C. App. 2019), involving an employee named Seay, picks up where Abbott/Olmstead leaves off by extending the “primary business” test to businesses other than transportation. In Keene, Seay’s direct employer, Daniel Construction Company, had contracted with Celanese to handle Celanese’s maintenance. Seay was performing maintenance work at the Celanese polyester plant in Spartanburg, South Carolina when he contracted lung cancer.

He filed a negligence claim against Celanese for failing to warn or cure unsafe environmental conditions. Celanese moved to dismiss on the grounds that Seay was a statutory employee. The lower court denied the motion. Celanese appealed. The Court of Appeals upheld the lower court’s ruling. Keene accomplished two important things. It vindicated the new standard articulated in Olmstead and Abbott and extended their logic to cover all trades and businesses. However, it is important to note that Keene still did not overrule the “important, necessary, essential or integral” test.

The New “Gig” Economy

Oliver Wendell Holmes once remarked: “The life of the law has not been about logic. It has been about experience.” Holmes hyperbolizes. Law has not been entirely about logic. But in response to Holmes’s implied question – what is law – perhaps this helps: good law respects the past, eyes the future, and equitably balances disparate interests in such a manner as to effectuate public policy. This includes the interests of non-parties. Businesses important to the economic well-being of a community might very well decide to locate elsewhere if obliged to compensate some indirect hires for injuries proximately resulting from owner negligence.

For the time being, however, communities needn’t worry. It remains easy for an employer to argue that an indirect hire is a statutory employee. All she need do is invoke the first or second tests in Ost. But as stewards of the law, we must ask ourselves whether current standards are unfair to the indirect hire who must bear the same burden as direct hires in these circumstances, even if their professional status in all other respects is grossly unequal.

The traditional model of signing on to a company for the duration is obsolete. As global competition grows, business will continue to look for ways to cut costs, and the “gig,” or “temp” economy will grow — along with the political influence of its workers. Gig employees will begin to demand better treatment. After all, labor is still labor, and sweat is still sweat, regardless of the formal legal relationship between employer and employee.

Will our courts create a double standard allowing peripheral indirect hires to be considered statutory employees for purposes of workers’ compensation (using a relaxed standard) while allowing the same indirect hire to sue in tort (using a more stringent test)? The latter could be accomplished by simply dispensing with the “important, necessary, essential or integral” tests in cases of alleged owner negligence. The courts would then have the option of applying the “primary business,” the “similar duties,” or the “totality of circumstances” test as set forth in Abbot, Olmstead, Harrell and Keene. But first we need to decide if reforming SCC 42-1-400 in favor of indirect hires is a good idea, and, if so, what “good law” will get the job done?

*This may be an unsettled point of law.
** In other words she may not “double dip.”

Thomas Gagne is a lawyer, writer, and lecturer. He lives with his wife Judy in Simpsonville, South Carolina.

Would The Real Diagnosis Please Stand Up?


Thomas M. Gagne, Esq.

Greenville, South Carolina

November 24, 2017

Good morning. I’d like to take this opportunity to thank the fine folks at the National Business Institute for making this CLE possible. 

Today I’ll be reviewing the concepts of masking symptoms and differential diagnosis as well as the features of several common injuries you’ll have to deal with as personal injury attorneys practicing workers’ compensation law. 

Along the way, we’ll touch on a few ancillary, yet critical topics: discovery challenges you’ll face as you construct your case, the claimants’ rights to a second opinion, her duties to comply with authorized treatment and the consequences of failing to do so, independent medical evaluations, what they are and when to use them, crafting compelling medical interrogatories, what functional capacity evaluations and how to deploy them, and lastly, the role vocational rehabilitation.

My goal is not to examine the leaves on the trees of all these topics, as such a lecture would necessarily exceed the time allowed, but I do hope that after my talk you will have a bird’s eye view of the features of the medical evidentiary and procedural challenges you’ll likely encounter. 

I’ve designed this presentation for those attorneys just starting out in their practice and for those with less than five years handling workers’ compensation cases.  But I hope that attorneys with more experience may also pick up a few things that would prove helpful to their practice. My analytical vehicle will be a case study based on an actual case I handled a few years ago. The names of the dramatis personae have been changed of course.

So, let’s jump right in. Adrian Phillips, a new workers’ compensation client, was twenty minutes late for his initial interview with me. He finally appeared with his wife, sauntering into my office, ostensibly without a care in the world.  He smelled like a combination of cigarette smoke and marijuana. But his thoughts were lucid, and he spoke clearly. I concluded he understood his rights and possible remedies we would pursue, so I proceeded with the interview.

Adrian is a 42 years old male, Caucasian, standing d six feet-four inches and weighing 165lbs — underweight for his height. His medical chart noted an impressive 117 over 70 blood pressure. Large veins traced intricate designs on sinewy forearms. Richly burned by the Carolina sun, you could tell Adrian worked outside a lot. Adrian’s handshake was firm and absent was any overt display of the power you knew lay in those arms.  

It was easy enough to sense the years of hard work to which Adrian’s leathery hand had been subjected, a tough hand which tapered into long, nicotine stained fingers.  His small finger curled at an odd angle, as if he’d once fractured it, but decided it wasn’t worth the trouble and expense to treat.

Adrian claimed he drank 1-2 beers a day and was a moderate marijuana user, but never drank nor used at work and never partook when operating a car or heavy machinery.  He had fallen into the marijuana habit in the early nineties as a teenager when the main recreation for his peer group was smoking pot while listening to grunge.  

He had dropped out of high school at 17 “because he wasn’t learning anything anyway”, but, prompted by his wife Rita, whom he met and fell for at 24, he completed his GED just fine, receiving the highest score in his class. His favorite subject was math. He had no vocational training, picking up the skills he did possess OTJ. Despite a good mind, Adrian was still only an assistant manager in the warehouse he’d worked in for the last 18 years. He earned 19 dollars an hour.

Adrian’s driving record was clean, but his RAP sheet revealed a typical hell raiser – a kid who failed to grasp the seriousness of the trouble he courted, a kid raised on Star Wars movies that features as one it’s heroes Han Solo, a self-confessed thief and swindler, that is, a typical male example of his generation who grew up too late and thought movies and television were an accurate reflection of reality and proper human behavior. His most serious charge was possession with intent to distribute crack cocaine at 21 for which he received a five-year sentence, suspended to one with four years’ probation accompanied by alcohol and drug counseling, but he had been arrested several times since for simple assault, a few fraudulent checks and once for receiving stolen goods.  It had not been an easy road for Adrian; and no doubt contributed to making the road harder than it needed to be.

These criminal shenanigans occurred in his late teens and early twenties. But now he truly appeared to be a dedicated worker and faithful husband, ready to lend a hand to a newbie employee brave enough to breach Adrian’s quasi- ersatz fearsomeness to ask for guidance. 

Now, Adrian always “took a rain check” when the guys invited him for a “few pops” at the local bar.  He liked to get home, see Rita, fix old cars – his second love, and rummage around junk yards on weekends for car parts, occasionally rescuing a serviceable kid’s bicycle save a missing part or two– bikes which he would then refurbish and donate to a nearby home for parentless kids. Rita knew about the bikes, but only Adrian and the staff at the local SPCA knew he would donate a 20-pound bag of kibble on most Fridays, usually his first purchase after cashing his paycheck. He never talked about the dog food, and it never occurred to him to claim it as a deduction on his tax return.

Adrian and Rita were in significant financial distress, Rita having lost her job several months previously due to the stagnant economy. According to them, their monthly income had fallen by at least 60%, and the fact that Adrian had not received any TTD (temporary total disability) since his accident despite a note from the doctor excusing him from work meant that financial collapse was imminent as the couple lived from paycheck to paycheck and had no savings.

Apart from the injuries due to the accident, Adrian had no pre-existing conditions or chronic conditions save one. He had suffered 2 herniated discs in his cervical region when he was 31 resulting from a motorcycle accident. He underwent several ESI treatments (a process we’ll cover later) and had not complained of cervical pain since the wreck.

On October 27, 2015, Adrian suffered an injury arising out of and in the course of employment. As mentioned, Adrian was a warehouseman, employed in Shipping and Receiving for a company called International Automotive Parts, based in Easley, South Carolina.

Delivery trucks routinely backed up into one of Shipping and Receiving’s 14 loading/unloading docks.  Standard operating procedure required the trucks to “hook onto” a ramp that connected the rear of the truck with the warehouse, so workers could use forklifts and other heavy transportation devices to deliver the pre-fabricated parts to stations within the Easley plant where they were counted, verified for quality and then entered into a database before being transferred for final assembly.

Adrian had worked in Shipping and Receiving at for the last eighteen years, had had a few “write ups” for being late and belligerent, but he was generally liked by management and co-workers. 

Adrian stated he didn’t like one of his supervisors and that he was out “to get him” for some off-color comment Adrian denied making.  Adrian had not risen in the organization as quickly as he and Rita had hoped, most likely a result of his truncated education and sheer lack of ambition, an early casualty of chronic THC use. 

As Adrian told his story, I noticed he nurtured a permanent frown, as if he was mad at the whole world, but nevertheless told his accident story clearly, succinctly, while generally omitting the usual recriminations about fellow employees and management.  In fact, Adrian rarely digressed from his tale. Unfolding it in a calm, articulate, deliberate manner. His nervousness was betrayed only by the fact that he continuously rubbed his hands together.

The facts of the accident were as follows:  as Adrian unloaded a 250-lb. piece of equipment at approximately 1100 a.m. on a Tuesday, he stepped onto the ramp connecting the truck to the bay. The ramp, apparently unable to bear the weight of the load and himself collapsed along Adrian.

On the way down Adrian’s right upper extremity, right shoulder and the temporal part of his skull severely impacted the truck’s bumper.

He lay on the ground for about 5 minutes, stunned, breathless, and confused. Shards pf pain coursed down his right arm — from his shoulder to his hand. His neck pulsed with pain. 

Co-workers who witnessed the accident notified the safety manager, Shirley Jenkins. Upon arrival, Shirley was more interested in how the accident happened instead of how Adrian felt, completing all the fields of the incident report form — information supplied by employees, some of whom had failed to actually see the accident but nevertheless felt compelled to get in on the action. Apparently, it was better to rubberneck an accident scene than work.

The injury scene looked gorier than it had a right to be as most of the blood resulted from Adrian’s head wound as the skull is vascular-rich.

Although meticulous, Shirley neglected to take Adrian’s statement. Nor did she give him a copy of the report.  She called the head office that called the nearest hospital which dispatched an ambulance to the scene.

At the ER, Adrian complained of pain in his right arm and neck which led the ER physician to the preliminary diagnosis of cervical radiculopathy. Dr. Fleming, the authorized neurologist, employed by the company’s workers’ compensation carrier, and to whom Adrian was subsequently referred ordered a series of MRIs which disclosed two bulging discs in Adrian’s neck accompanied by spinal cord impingement, resulting in radiculopathy which would account for his arm pain. 

As we’re getting in to diagnostic and anatomical terms, let’s take this opportunity to discuss the human spine.

Of all the pathologies we face as personal injury lawyers, few are as common as pathologies to the spine. The spine and spine related disorders due to some type of trauma is the bread and butter of our practice.  You’ll find that most motor vehicle accidents, or MVA’s, and Worker’s Compensation cases involve spinal injuries – from its most common form, soft tissue sprain and strain to major multilevel nerve compromise requiring invasive procedures and long-term treatment.

So, let’s get acquainted with our friend and foe — the human spine. See Exhibit lateral view of the human spine.  The terminology and concepts I’ll be using will become second nature to you very soon. So, relax. It’ll come, if not via diligent study then through intellectual osmosis.

The human spine is composed of five distinct parts: the cervical section, or neck, the thoracic section forming the middle of the spine, the lumbar section forming the lower section which together with the cervical section presents the most problems, the sacrum, this flat piece of here, and the coccyx, the last set of vertebrae representing the vestiges of our ancient ancestor’s tails. Although the coccyx is vestigial, injuring what is commonly called our tailbone is quite painful as anyone here can attest to who has fractured, bruised or otherwise injured his or her “butt-bone”. The whole area is obviously nerve rich.

The spine, along with the brain. forms the central nervous systemSee Exhibit  , Central nervous system.  The spine connects to the brain via the brainstem and the medulla oblongata, See Exhibit, Closeup of brainstem and medulla oblongata.  The nervous system is a vast network of  nerve cells sending electrical signals, many automatic, some voluntary, between different corporeal destinations, up through the spine and into the corresponding parts of the brain and back again. A huge enclosed organic circuit, breathtaking in its complexity and capabilities, a masterpiece of evolution, responsible for finest poetry as well as the basest instincts.

Now, the  spine itself is composed of bony structures called vertebrae which, amongst many other functions,  forms the skeletal architecture of the spine.   Each section of the spine has a specific number of vertebra – the cervical contains 7, the thoracic 2, and the lumbar 5.  Injuries to the sacrum and coccyx exist of course, but within the scope of this module I’m going to omit a discussion of the disorders of these body parts.

Tubular spaces run throughout the spinal vertebrae, called foramina, through which the spinal cord, a complex bundle of nerves, flows, itself branching into lesser and lesser branches throughout the body called the peripheral nervous system.  See EXHIBITS Diagram of foramina and the peripheral nervous system.

Other foramina dot the edges of the vertebrae allowing ligaments and other soft tissue structures to access the spinal column supplying support as well as supplying it with blood and oxygen. As you can see every vertebra share structural similarities but can dramatically differ depending on their placement in the spinal structure.

The vertebrae are dynamic, meaning they allow us to twist, turn, bend, reach and so forth – necessary functions in our daily life, and if injured can significantly affect a person’s livelihood, especially if her job if it is mainly physical. 

Nature has provided us with shock absorbers between the vertebrae preventing them from mutual impact as we move, called intravertebral disc’s, and therein lies the rub (excuse the pun) of most spinal pathologies. EXHIBIT. DISC

Intervertebral discs are circular structures within which rest the nucleus pulposes, a soft, spongy tissue surrounded by tougher tissue called the annular fibrosis, the tough outside of donut, if you will. Intervertebral discs are elastic, compressing or expanding depending on the upright or supine position of the client and account for a quarter of the length of the spine 

When these structures tear, they allow the nucleus pulposes to herniate and impinge upon the spinal cord, that vast bundle of nerves running up and down and through the spinal column – the body’s information superhighway. This impingement in turn usually results in pain down the extremities, i.e., the arms and legs. If the herniation is serious enough it can affect bowel and bladder function.  The most serious derangements can result in permanent paralysis.

Now, MRIs are your best bet in detecting herniations. They are the gold standard test in this area even if the basic technology is about 40 years old. The radiating pain is medically referred to as radiculopathy, and we saw it in Adrian’s presentation of pain in his right arm. 

If the pain’s locus lies in neck and the upper extremities, cervical herniation is the likely culprit. Radiculopathy in the lower extremities results from a lumbar herniation. Radiculopathy in the 

Lower spine radiating into the extremities is commonly referred to as sciatica. Keep in mind also that the patient may be suffering from multiple herniations. The classical symptoms or signs of radiculopathy include numbness, tingling and pain within the extremity often coupled with a loss in range of motion (ROM).    EXHIBIT Rad                 

It’s important to note the difference between a disc bulge and a disc herniation. An MRI may reveal several disc bulges, and yet the patient remains asymptomatic. This is generally because the herniation has yet to impinge on , i.e. contact, the spinal cord to such an extent as to  generate radiculopathy. Vertebral bulging absent impingement on the spinal cord usually presents no problem. However, if the bulge does impinge upon the spinal cord, pain, at times quite severe, accompanied by numbness and tingling in one or both upper extremities may point to a serious tort case if the impingement is a proximate result of negligence or a job injury.   EXHIBIT Herniated Disc impinging on spinal cord.     

Moreover, bulging discs do not respect age. I’ve seen clients in their 20s test positive for disc bulges, but which were asymptomatic. Most people by their mid to late 30s experience some bulging discs, even multi-level bulging, so if your MRI reports notes disc bulging absent the word impingement or words to that effect, especially if the client does not report pain, don’t get too excited as this is probably unrelated to the type of disc herniation resulting in radiculopathy which might require more radical intervention.

Also, the herniation’s severity in individuals depends on the person’s genetics, lifestyle, and job duties. For example, smoking can aggravates discopathologies, and a person with a desk job might not experience the same level of pain as a construction worker. 

I have also encountered cases where the client exhibits radiculopathic herniations by the age of 25.  I have seen older patients, well into the 50’s, who exhibit minimal bulging with no impingement and are entirely asymptomatic. This despite similar types of work, lifestyles, education, socioeconomic status. In short, no absolute litmus test in this medical area.

Herniated discs are neuro – orthological in their nature. In my experience, defense counsel has never objected to my introducing medical evidence based orthological rather than neurological opinion or vice versa, although I tend to employ neurological experts. The key to prevailing in the choice of medical experts lies in their experience, board certification, and reputation in the legal and medical community.  I’ve seen an instance where a credibility issue ensued over whether the examining physician was board certified or not. So, obviously, try to employ a board-certified specialists for serious spinal injuries, which, by the way are not easy to come by.

A short aside, arthritis is a “cousin” to disc degeneration. Spinal pain can at first appear neurological in its origin when in fact it’s etiology is most likely arthritic. The test is the absence or presence of radiculopathy. 

For some reason many of my assistants, beginning attorneys and paralegals, upon first interviewing a client fail to ask the simple question of whether the client’s pain is radiating into the extremities, or is localized, a fundamental question you should ask in your initial interview. It’s an easy enough concept to grasp and can be integral to your medical theory especially when helping your treating physicians locate the most likely source of the offending pathology.                

As far as arthritis goes, as we age, assuming all other systems are healthy, osteoarthritis rears it’s painful head as cartilage articulations separating bony structures degenerate – cartilage separates bones and when it deteriorates bone begins to rub on bone generating a full spectrum of pain. Traumatic injury proximately causes, aggravates or accelerates osteoarthritis, even if the arthritis was asymptomatic before the traumatic event. Car wrecks, slip and falls, and job injuries fall into this category. Don’t let the defense try to sell you the idea that your damages are weak because of pre-existing arthritis. I’ll show you how to counter this ploy in a few minutes using an independent medical evaluation.

So, just because osteoarthritis is a natural occurrence does not mean that it’s a pre-existing condition severing proximate causation. Another source of arthritis is rheumatoid arthritis but a discussion of this is beyond the scope of this module, but I strongly suggest your studying this disease independently.

Now, having filed the Form 50 in Adrian’s case, it was time to begin discovery. I always prepare my cases as if they are headed for litigation, despite the fact that 90% of my cases settle. So let’s talk discovery tools.


When preparing for adjudication, there are two mistakes a budding attorney can make regarding her subpoena power. One is to underutilize it, and the other is to abuse it. As I told new attorneys who worked for me: you have subpoena power. Don’t come to me and say this or that person, this or that professional is ignoring you. If you take one thing away from today regarding discovery, it’s this: use your subpoena power even if the penalty for failing to comply with a workers’ compensation subpoena is a misdemeanor fine of two hundred dollars. See CITE. 


Of course, if the opposing party attempts to enter the subpoenaed, yet undisclosed material into its case, one remedy is to move to exclude. Another one is to appeal the issue should you, because of the missing evidence, fail at the Single Commissioner level. Yet another remedy is to seek substitute evidence.

That said, like most powers, subpoena power is circumscribed. The party upon whom the subpoena is served can move to quash it. In the workers’ compensation context, there exists no statute or regulation governing quashing subpoenas. If the legality of compliance becomes an issue, the subpoenaed party may file a motion with the Commissioner hearing the case and argue standard objections via counsel. Traditional rationale for noncompliance can be found in Rule ___, The South Carolina Rules of Civil Procedure. These include undue burden, privilege, etc. and is divided into required and permissive bases to quash. I’ll leave it to you to read the details of the statute.

Deposing physicians, who function as expert witnesses in workers’ compensation cases, can be challenge.  At my shop, we try to build upon the relationships we’ve carefully developed with the physician’s administrative staff when scheduling a deposition. It’s only after we’ve diligently attempted to informally schedule the depo do we resort to issuing a subpoena, and we make the depo site my office. This usually gets the attention of the doctor, to say the least, and we usually get a depo scheduled at the doctor’s office at his earliest convenience — which we were trying to do in the first place.

The moral: nurture your relationships with outside support staff. They hold the keys to the kingdom and can either guide you to fertile valleys or desolate plains. This is a fundamental rule of business etiquette, but you’d be surprised how many experienced attorneys neglect this nostrum. Don’t make that mistake in your practice. 

If you’re seeking information from a doctor’s office regarding your client, make sure you spell out , in a letter, the body parts involved, the date of accident, and what other records have disclosed as a preliminary diagnosis. 

Clients suffer other conditions affecting other body parts and systems, and the last thing you want are reams of irrelevant, expensive, medical records. On the other hand, don’t totally tie their hands. Word the letter to assure the staff that they may look for other pathologies you may have missed which are nonetheless related to the accident. 

Now, if you’re seeking answers to specific legal questions that doctor’s usually do not address in their notes, such as proximate cause, and for some reason you can’t depose her, send her a Medical Interrogatory.  They’re not as exact as depositions since the attorney cannot easily ask follow up questions, but they do rather well in a pinch.

What’s a Medical Interrogatory? It’s a tool, a document containing specific questions to be completed by the authorized or unauthorized physician. Remember that the employer enjoys the right of choosing the treating physician and overall course of care in a workers’ compensation case, while the employee has the right to procure a second medical opinion. I usually send the MI only to  the unauthorized doctor from whom I’m seeking a second opinion, as I’m not in the business of making my opponent’s case. However, like anything else, there are exceptions. 

The MI helps crystalize the salient medical/legal points you need to make to support a prima facia case against the carrier. So rather than have the Commissioner fish for the information she needs, I make it easy for her and try to wrap everything I can into a single medical document. See Exhibit, example of medical Interrogatory.

Follow the SOAPPI method when crafting your MI questions. Ask the doctor what symptoms the client complains of, what objective tests, if relevant, he’s undergone, what the          diagnosis (es) most probably is, what the treatment plan is, future meds, whether the accident proximately caused the injury, whether the patient has reached maximum medical improvement, and what the impairment rating for the body part may be according the AMA Guidelines for Permanent Impairment. I also ask what the probability is of the client’s condition worsening within one year.  Remember, that this is a right that must be negotiated during settlement by clincher discussions, as a properly executed clincher agreement between the parties extinguishes this right, and you want some consideration for your client. 

Also note that it can be difficult for an examining physician to determine if an injury is pre-existing if he does not have a prior MRI or other test to compare it to. Therefore, collect such prior objective testing, as well as other pertinent records and forward to your expert along with the MI and cover letter. I usually just send an entire copy of my medical file to the retained doctor which is complete by the time my expert makes an appearance.

Be sure to send the MI to the correct unauthorized doctor, usually a specialist, i.e., don’t send an eye case to an orthopedic surgeon. Simple enough point but you’d be surprised the number things that are “common sensical” get passed over. The unauthorized physician must also know how to evaluate a client for permanent impairment, that is, know how to apply the AMA Guidelines to Permanent Impairment.

 Moreover, specify whether you want an evaluation or an evaluation plus treatment. And make sure the retained doctor actually physically examines your client and doesn’t simply consult the other physicians’ medical notes. 

So let’s return to our case study. After filing the Form 50, the carrier filed its response in the Form 51, denying liability. In other words it filed a demurrer, which is a perfectly reasonable thing to do in the initial phases of case since the defense is stuck with any admission and doesn’t want to discover later it was the wrong move . 

Additionally, the carrier hired Dr. Fleming, a neurologist, to handle the medical case.  Based on a cervical MRI which showed possible impingement, he opined that Adrian was suffering from a cervical herniation at C-4 scheduled a series of corticosteroid injections (CSI’s) – a procedure whereby steroid therapy reduces the inflammation of the disc, alleviating the pressure on the spinal cord and hence the pain. 

CSI’s can be squirrelly procedures. Sometimes one round of injections work miracles. The pain just never returns, and for all intents and purposes, the client is “cured”. In most cases, however, CSI’S ultimately fail, providing relief for a short period of time only for the pain to return within a few weeks.

Unfortunately, Adrian fell into the second class of clients. After two sets of CSI’s his pain had not abated. The thought of his malingering began to seep into my judgement after recalling his criminal past, but I felt it was out of character given his performance in the last ten years. Moreover, there was no basis for retaliation or other motive of which I was aware.

I called him to request a follow up office meeting. As we reviewed his symptoms he off-handedly mentioned that his pain radiated upwards from his wrist into the shoulder. I thought he had misspoken, and he stated his pain usually radiated down from his shoulder through his arm to his hand, but he reiterated that on this day the pain radiated upward from the wrist to the shoulder. I had stumbled upon a symptomological anomaly 

As I’ve mentioned, cervical radiculopathy flows from the neck down the arm — southward as it were. Adrian was reporting this but also reporting pain flowing northward from his wrist.  Either my medical theory was wrong, the radiologist had misread the MRI or Adrian was malingering.

It didn’t help that I’d had never seen such a symptomatology in my twenty years of practice. Which I have a feeling really isn’t saying all that much. I could probably practice fifty years and encounter disorders I’d never seen before, such is the complexity of medicine. But it was obvious that the physician and I had to now engage in differential diagnostic analysis.

I called a neurologist I work with and explained the facts of the case to her.  She agreed that the symptoms were inconsistent.  What was left?  Applying the process of differential diagnosis, we kicked around the possibility that Adrian could be suffering from an ulnar neuropathy which consists of either carpal tunnel or cubital tunnel syndrome, or, on the darker side of the spectrum, what I referred to as Adrian’s northward upper extremity pain could be signaling a case of complex regional pain syndrome, a somewhat mysterious and disconcerting ailment which in its nastier manifestations could mean years of pain management.

We also discussed the possibility that the previous cervical corticosteroids injections may have masked the northward symptoms and may have accounted for the late reporting. But it was also within the realm of reason that Adrian, once he realized that the more injuries he claimed, the greater the compensation he’d probably receive, was simply malingering.

After further discussion with the neurologist, I decided referred him for nerve conduction study. Perhaps Adrian was suffering simultaneously from multi-level cervical radiculopathy as well as ulnar neuropathy – a condition which expresses itself in carpal tunnel or cubital tunnel syndrome—with the ulnar neuropathy flowering only when the CSI reduced the cervical inflammation. Let’s take a few minutes to discuss some features of these pathologies.

The ulnar nerve runs medially down the upper extremity.  See Exhibit       Diagram of ulnar nerve.   Its location makes it liable to entrapment or pinching. One of the easiest way to determine if a client suffers from ulnar nerve entrapment is difficulty forming the OK sign, which is a common symptom of ulnar nerve entrapment pain.  This pain usually begins at the wrist and may travel up as far as the shoulder. 

The major culprit of cubital tunnel syndrome is the humerus bone compressing the ulnar nerve. Exhibit.   Diagram of Humerus Bone.  As the ulnar nerve passes through a tunnel-like structure near the humerus, it can become compressed for a variety of reasons: excessive exercise and sleeping with the affected arm behind the head are common causes. Many times, the cause is idiopathic, meaning that we cannot tell what’s causing the compression.

Cubital tunnel syndrome is not to be confused with tennis elbow – the former being neurological while the latter is a soft tissue condition resulting from the over use of the involving the muscles and ligaments associated with the elbow.

Carpal tunnel syndrome was another candidate possibly responsible for the character of Adrian’s upper extremity pain. This condition also involves the medial nerve as it passes through a tubular like structure in the wrist aptly called the carpal tunnel.  Like ulnar neuropathy or cubital tunnel syndrome pain results if this nerve is compressed and in many cases the pain shoots upward into the upper extremity.

The last condition I considered was the least likely cause of Adrian’s complaints, but it is quite serious and deserves at least a rudimentary explication — namely complex regional pain syndrome, CRPS, formally referred to as a reflex sympathetic dystrophy or RSD.

The symptoms of CRPS are vary between individuals and can be quite cruel. One of the ironies of CRPS is that the symptoms usually bloom near or at the site of minor injuries. In my experience CRPS usually attacks the upper extremities.

Symptoms include severe swelling, reduced temperature at the injury site, discoloration with where the skin exhibits a purplish hue, severe pain in the form of and stabbing, burning and throbbing pain coupled with an intense sensitivity to touch. EXHIBITS     Photo of CRPS Symptoms.

Treatment includes various of neurological exercises, medications, even amputation of the offending limb. The pain is continuous but varies in severity, and symptoms can respond well to treatment and simply cease.  Future medical costs for chronic CRPS can be astronomical, that is, a very serious and expensive case.

CRPS remains a mystery disease, no consensus yet exists as to its etiology, although there exist a number of theories. 

Now, as I noted, we ruled out CPRS as Adrian exhibited none of the symptoms I just described except for the pain, and his pain was not severe enough to signal a provisional diagnosis of CRPS. Therefore, we thought that the best course of action at this point was to run a nerve conduction study, or NCS, which is a neurological procedure measuring the amount of electromagnetic energy flowing through the suspected compressed nerve. The less energy, the more the likelihood of compression.

The NCS report disclosed medial nerve compression at the cubital tunnel. The surgeon performed a nerve release, and the patient reached maximum medical improvement within a few weeks for both the cubital tunnel and his cervical neuropathy.

The attorneys clinched the case soon after MMI, and Adrian is back at work before and most of his original duties. The physicians thought it prudent to limit his weight lifting to 30 pounds for the next six months in order not to reactivate or aggravate the conditions. And to everyone’s satisfaction we haven’t heard from him since.

Although Adrian’s case did not require a functional capacity evaluation, I’d like to talk about this with you for a few minutes, as well as the topic of vocational rehabilitation. In order to do this, we must back up a bit to discuss the theories behind a claimant’s right to receive worker’s comp benefits.

Two basic theories exist.: the medical theory and the loss of earning capacity theory. In a nutshell, the medical theory supposes that an injury to a body part or parts proximately resulting in full or partial permanent impairment justifies, in and of itself, compensation. In my experience, the medical theory is the most common justification for compensation. It recognizes that an injured worker not only loses the use, or partial use, of a body part or parts as it affects his ability to work, but also loses its use vis-a vis other areas of life, i.e., relationships, hobbies, hygiene and so forth. This articulation of the “why” of damages therefore more closely resembles classical tort damages theory. It recognizes that a person is more than just a worker, an object that merely produces goods and services. It is , therefore, in theory, the most humane justification for damages.

Loss of earning capacity, on the other hand, posits that compensation should be based on the extent to which the injured body part diminishes an employee capacity to earn. The question then becomes, how is loss of earning capacity measures and then translated into dollars and cents.

South Carolina worker’s compensation law specifically lays out for you a way to calculate damages based on LOEC. See SC Code of Laws

This calculus unfolds as follows: Once a claimant reached maximum medical improvement, claimant’s attorney refers his client to a vocational expert who examines him and opines, in writing, probable loss of salary as a proximate result of his injury. The difference between claimant’s former salary and his diminished post-injury salary is multiplied by two-thirds and then that product is multiplied by the statutory multiplier for that particular body part or parts. 

For those of you who like the elegance of mathematical notation, the equation for loss of earning capacity is:                                           

                                                        2(S1 -S2)/3 x SM = indemnity

Where S1 = the pretax preinjury salary per week; S2 = the pretax postinjury salary per week; and SM= the statutory multiplier. (Note that SM does not include ancillary damages such as past and future medical specials, out of pocket expenses, mileage, etc. Nor does SM account for the value of the claimant’s right to file a worsening of condition within one year of the original Order.)

The functional capacity evaluation, or FCE, is merely another tool the vocational expert may use to  determine loss of earning capacity. The body part in question is tested for strength, range of motion, ability to repeat a motion and a variety of other variables. The defense usually employs FCE’s in a bid to counter the claimant’s vocational expert’s opinion, o to counter a claim for permanent and total disability. Therefore, I use an FCE to block the defense somewhat, hoping that “my FCE” aligns, and enhances, other parts of my damages theory.

Now, one of the problems with the FCE is the examiner’s subjective opinion of whether the claimant is fully exerting herself in the various physical tests administered.  The test is, in my opinion, too prone to mistake, and can transform a negative opinion regarding exertion into a wider, otherwise unwarranted full-scale credibility attack upon your client. 

If I seem to be biased against the loss of earning capacity theory, I’m not. In fact, in cases involving high compensation rates, I run the indemnity numbers under both methods, and, everything else being equal, use the method which yields the best outcome for my client. 

I’d also like to point out to you that vocational rehabilitation is free to South Carolina residents. The fine folks down there will test your client’s various mental and physical vocational abilities and train her in another field if warranted.  In many cases, vocational rehabilitation will unearth capabilities your client never knew existed, ushering in a phase of self-discovery and possibly a better standard of living for your client. It’s a great benefit our state provides and you should seriously discuss the option with your client.

A final takeaway for today. Legal rules are more than just the “rules of the game.”  This is a facile observation. Rather, regard rules and doctrine as weapons, tools of leverage, in your quest to vouchsafe your client’s interests. Deploy them strategically, and if appropriate, in number to establish the strongest bargaining position possible for you and your client at the time of negotiation and resolution.

I hope these few remarks on some of the medical and discovery aspects of workers’ compensation practice has highlighted the amount of legal and medical information a PI lawyer must master before he can consider himself competent. Try to stay up to date with all the legal and medical developments in our field.  Restoring and maintaining our clients’ physical and financial well-being is a serious and I would argue noble life pursuit. And the more you put into it, the more it will reward not only your client, but you.

Thank you for your kind attention.

Photo by Harlie Raethel on Unsplash

Building Litigation Skills in PI Cases: Wound and Redemption Themes, Strategies and Other Issues

Video Lecture By Thomas Gagne, Esq.
The National Business Institute

Good morning. I’m Attorney Thomas Gagne. I’d like to thank the fine folks at NBI for making this CLE possible. I’m a Personal Injury Attorney with a practice in Greenville, South Carolina. I’m entering my twenty – seventh year as a trial attorney. This is my seventh CLE module.

This afternoon I’ll be discussing a few litigation principles I’ve found helpful. During my career, I’ve prosecuted and defended hundreds of criminal and administrative cases as well as hundreds of personal injury cases.

I must cover several topics today, each of which could easily occupy the entire time allotted me. So, excuse me if I proceed with some haste. But that said, please feel free to ask a question at any point. I believe dialogical exchanges are more fruitful than pedagogical monologues, and your question is likely on the minds of other participants. And since you have a complete copy of my remarks, occasional colloquies should be no problem.

So, why study trial techniques, when the number of cases that make it to trial decrease every year, when many commentators see ADR, even the discovery process as the new forum for dispute resolution? The short answer is: if you don’t prepare your case as if it’s going to trial, you’re likely to miss a strength or weakness of your or your opponent’s case, thereby handicapping your bargaining positions come negotiation time.

So, let’s begin by exploring opening statements. For the sake of argument, let’s assume we’ve already developed our legal and factual theories as well as our preliminary strategy.

What is a trial? A trial is simply an argument – an argument about which party’s version of the law and facts makes the most sense, is the most emotionally compelling, and is the most equitable, or just. Therefore, argue. Novice attorneys tend to merely recap the testimony of their witnesses at closing. Which is fine. But you ultimately must move from what your evidence is to what your evidence shows, what your evidence means, and how your version of things is superior to your opponent’s.

What we are talking about is rhetoric one of the oldest art forms known to man. Western rhetoric emerged from the courts and political assemblies of antiquity. Lawyer were arguing contract, criminal and tort cases at least half a millennium before Christ. Aristotle that theorized the best arguments are logical in form, graceful in delivery, and equitable in result. Logos. Ethos. Pathos. As your entire case executes these rhetorical principles, so should your opening.
Now, a legal argument is not a formal argument, the kind you may suffered through in high school debate, as I did. Trial lawyers deliver cases in the form of a story, or narrative.

At the simplest level, the opening is a summary of your case, cluing the jury in to who you and your client are, why you’re at trial, what evidence is, what you propose to prove, how the trail will proceed, the roles of the plaintiff, defendant, witnesses, judge and jury, and, most importantly, what you want, i.e., your damages. The opening should also introduce the jury to the law of the case. No easy task as the law is terra incognita to most jurors, despite what they believe. To help them understand the law and its nuances, not to mention the medical concepts involved, feed the concepts to them in bite-sized chunks.

Even still, this poses a challenge at times as some legal concepts are inherently confusing. What’s the difference between likely and most likely? What is a reasonable degree of medical certainty? Doesn’t certainty, by definition, exclude degree? The law is a fine tool. But like anything man made is imperfect, yet I believe it is perfectible, as human understanding expands, as long as we are careful, diligent, compassionate and patient.

Remember, you’re a product of intense legal education. You probably have some litigation experience. But jurors are largely babes in the wood when it comes to law and medicine, and if the jury fails to grasp the ideas, you’ll lose them, and you most certainly will pay the price.

As you compose your opening, avoid big words. The jurors probably don’t have your degrees and may not understand complicated, technical jargon. Even with professionals, simple words usually have the most punch. Not only does the misuse of technical language mar your style, but you also run the risk of looking pompous.

Now, the opening is your golden opportunity to begin selling your case, your client, and yourself to the judge and jury. While the closing is concerned with arguing why your theory of the law and facts should prevail, by the time you get there the jury has probably already made up its mind. So your opening must not be merely a summary of what’s to come but must signal to them why, considering the totality of the circumstances, your theory of the facts and law makes the most sense – why your theory is the most credible.

But, you say, you’re not supposed to argue in your opening statement, that the rules prohibit argument in the opening. This makes absolutely no sense since, as argument is the soul of litigation. If your opening is meant to summarize, the why exclude the main element? Especially if the judge knows pretty much what evidence will be offered, which she can easily do in a pretrial conference. If anything inappropriate does get in, it can be cured. Moreover, it’s obvious the opening is not the closing, and I feel it’s our duty that the jury should be familiar with each side’s basic arguments going in. If you’re going to talk about what evidence you will present, it’s sensible to talk about what the evidence means. To proceed otherwise is like staging Hamlet without Hamlet.

But if you are artful enough, get to where the fight will be and occupy that ground in your opening. That point, the point at which the contending hypotheses collide is called, in the formal theory of argumentation, the stasis, to be differentiated from the same term used when discussing the story structure.

The stasis usually involves the credibility of witnesses. Remember, the battle goes to the “firstest with the mostest” — which means you must cultivate your ability to anticipate how the contest will unfold. This advice may be your most important takeaway today. You must learn to think in terms of moves ahead, and be prepared for them, like a chess player. In fact, if you don’t play chess, I suggest you take it up. Some people have an uncanny talent for the game from the beginning.

Now, unfortunately, plaintiff’s attorneys have the additional burden of overcoming juror bias against claimants and their lawyers. To neutralize this bias, impress upon the jury that you are only seeking justice — a fair result. That whatever compensation the plaintiff may receive, it’s just that — compensation, not profit. Your client is not looking for a payday. Show the jury that the plaintiff is in the red entirely because of the negligence of the defendant, and all you are trying to is return her to the status quo ante – of course without using that term.

Also, do not personally attack the defendant, even and especially during the cross. Just be business-like. Neutral. While other parts of the process demand some degree of “passion”, your relationship with the defendant is cool and matter of fact or you’ll run the risk of alienating the jury. However, and this is an important caveat, this does not mean you cannot present evidence of egregious behavior by the defendant.

Another thing, you want to create empathy for your client, not sympathy. As you work with the plaintiff before trial, stress the importance of her not breaking down on the stand. Nothing turns a jury off like a blubbering witness, or its corollary, bellyaching. Life sucks for everyone, occasionally. As she relates the hardships she’s endured since the accident, she must relate them in an emotionally neutral way. Later on, I’ll explain how to transform your client’s recitation of her damages into a compelling narrative. Steer clear from phrases like “I’m sick and tired of being sick and tired.”

Also, write out your opening statement. In fact, write out your entire case. The sheer act of writing will unearth elements of your case you might otherwise have overlooked. And while you should write it, don’t read it to the jury. Use an outline if you must, but your delivery must look unrehearsed, authentic, and heartfelt.

Hit the damages portion of your case hard. In fact, two-thirds of your case should concern damages. Damages are the plaintiff’s ground. Causation belongs to the defense, and liability should have been settled before trial. If liability is still an outstanding issue by trial time, seriously consider settling. Fighting liability and proximate causation is a tall order.

Lastly, unless the circumstances absolutely demand it, do not waive your right to an opening statement. It’s tantamount to giving a competitor in a footrace a fifty-meter head start. You’ll be playing catch up for the balance of the race.

So, that said, let’s turn to the opening’s structure. I’ve mentioned the classical framework of argumentation, and that the opening should be a “story” introducing the larger “story” of your case. Most trial handbooks will tell you that the opening statement functions as a roadmap for the jury. This is true — as far it goes. But if you take a closer look at the opening, a far more interesting structure emerges.

Figure one imagines the opening as a set of intersecting ovals. (See Exhibit One) One is the story of your case, and I’ll talk about the story elements in depth as we proceed. The next is the theme, a nice slogan encapsulating your story. Then the encapsulation itself – an opening for the opening if you will. The next ring is your legal/ factual theory. I don’t separate the two as these are, by nature of syllogism, intertwined. And lastly, the prayer — what you’re seeking by way of compensation – the whole point of your being there.

This diagram is a bit misleading as these elements are actually one line of action interweaving and supporting one another, delivered in a polished, integrated whole.
What does a polished, integrated whole mean? It means writing it out, revising, revising, revising, weaving the elements together, and then sanding your language down to its barest essentials until the fine-grain emerges. And if your language is not fluent, don’t despair, at least it’s efficient. Don’t make the mistake many lawyers make when they talk – that more is more.

The story. This is where the English majors out there get excited. There’s a scene in the movie Amistad where John Quincy Adams, played by Anthony Hopkins, shares a bit of wisdom about trials. He said that the side with the best story usually wins. This is true. If you bore the jury, or worse, alienate them with a dry recitation of the law and facts, they will certainly penalize you. But if you tell them a story, you’re comforting them. A story is something that they recognize. All of us have been steeped in narrative since the crib. You can say narrative and the structure of narrative is hardwired in our DNA, or at least it’s a major component of our environment.

So, what is the essence of narrative? Every narrative involves a quest. The Odyssey —Ulysses’ quest for home. Moby Dick — Ahab’s quest for vengeance. Even contemporary pieces like Waiting for Godot, where there is no plot, no setting, minimal characterization, none of the conventional architecture of a story except for a quest – a quest for meaning.

You can see how easily this applies to a trial. For what is a civil trial if not a quest for compensation? My point is you can use “a quest” as a universal theme if a more particular theme doesn’t suggest itself. For instance, your theme might be a quest to overcome adversity. The advantage of this theme is you can then implicitly enlist the jury in your quest. How? By the structure of the story itself. Let me explain.

Return to your eighth grade English class for a moment and remember the fundamental elements of a story your teacher outlined: stasis, conflict, complication, climax and dénouement — except the teacher discretely omitted that the fundamental structure of a story mimics coitus – conflict (contact), complication (arousal and tension), climax (the word speaks for itself) and dénouement (cigarettes). So when I said that stories are hardwired, I meant hardwired.

But stories operate on more than a primitive level. A story is the best way to communicate information, if only because a good story naturally retains our interest. Why does this happen? Why is The Catcher in the Rye such a perennially popular novel? We don’t know too many Holden Caulfields, and I’ll wager that if we did we’d steer clear of them. Nevertheless, Holden’s struggle is, in many ways, our struggle, our interior struggle to survive in a society populated by shallow, ill-intentioned, inauthentic personalities. Complications, or adversity, can be interior or exterior, usually both. Because of the universality of adversity, we empathize with the character. We share in his struggle, we identify with him (hey, the author is talking about me!) And thus we pay closer attention to the protagonist’s plight and hence his story.

This is why you don’t want your client to appear pathetic. We all struggle. And we turn a cold eye to whiners. What people really want to know, and what they respect and engage with — what do we make of the struggle? Does it destroy us, like it does Ahab, or do we triumph?

Of course, it’s probably safe to say that most people prefer happy endings. So the story is a story of overcoming. The audience unconsciously wants the protagonist to suffer adversity, so that the tormented protagonist learns something in the process. There must be a point to suffering. Therefore many stories become what the Germans call a bildungsroman –a story about the maturation, the growth and learning of the hero. A cursory examination of religious and secular thought about the nature of suffering bears out the popularity of the bildungsroman.

Take Buddhism: compulsive study and contemplation of suffering liberates our souls. (Exhibit Two) Or the Muslim view: suffering is our fault, a result of sin, which prompts us to pursue more virtuous lives. (Exhibit Three) And then there’s the Christian perspective where Christ’s suffering signifies no less than the wholesale redemption of mankind. (Exhibit Four)

Secular thought also eschews pointless suffering. Consider John Keats, the famous 19th century English Romantic poet, and his rhetorical question: “Do you not see how necessary a world of pains and troubles is to school an intelligence and make it a soul?” (Exhibit Five) And then there’s Nietzsche’s charming Teutonic version: “That which does not kill you makes you stronger.” (Exhibit Six)

The implicit question, “is suffering for naught?” is an opportunity for the plaintiff to engage the jury on a deeply psychological level. How? By answering this question with a resounding “of course not.”

Therefore, consider constructing your case within the context and theme of personal growth. Showing the jury how your client’s injuries revealed strengths she never knew she had, or how adversity honed her appreciation of life. Showcase her indomitable spirit. Not only will her ordeals lend meaning to her suffering, and by extension “suffering” in general, the jury will respect her fortitude and make it more likely they’ll “reward” her. The opening then becomes more than a mere “road map” or summary of your case-in-chief. It sets the stage for compelling human drama, transforming workmanlike narrative into a poignant story of courage.

Let me share with you a workers’ compensation case history that illustrates what I’m talking about. The theme of the case is “Ride the Bull.” Matt, a sheet metal mechanic, injured his spine arising out of and in the course of his employment with an aircraft manufacturer. An MRI ultimately disclosed that Matt suffered a herniated disc at L4-L5. He reported the injury to his supervisor, who failed to make out a report or refer him to a doctor. In pain, Matt referred himself to a chiropractor.

On the intake form, Matt checked the box indicating that his injury was not work-related. He even stated that he injured his back at home a few days earlier while working on his boat. This is not unusual. Upon realizing that it might jeopardize their jobs, many claimants fail to claim their injury is work-related, only later to seek legal counsel when circumstances are no longer tolerable. However, such prior action usually handicaps their case. Factfinders show little patience for claimants who lie, regardless of the circumstances.

As I examined Matt, he mentioned that his co-workers often horseplayed with him in a particular way. They would jump on his back and cry “ride the bull!” Now, Matt was overweight, and as many people in that predicament can attest, they are often the butt of jokes or rude behavior. On top of that, it’s culturally normal when a group of men horse-plays with a fellow – its manifest purpose is to make the object of the horseplay believe he’s “one of the gang.” It’s a form of hazing. Feeling that we belong to a group is perhaps the single greatest psychological motivator that exists. It stems, of course, from ancient survival instincts. Tribal exclusion almost certainly meant death, and still survives in many forms – ex-communication, exclusion, bullying and shunning to name a few.

Matt’s experience, however, exceeded good-natured kidding hazing. What’s worse, according to uncontroverted testimony, management was aware of this “horseplay” and turned a blind eye.

Accordingly, I shifted strategy from an “apology” for inconsistent notice (a weak, defensive stance) to attacking the employer’s egregious behavior for allowing these assaults to continue unabated. I largely ignored the inconsistent behavior and argued that the “ride the bull” episodes probably accounted for his back injury.

But I didn’t leave it there. Why was he picked on? Matt is an average fellow. Competent, not an overachiever. Overweight. On the short side. Had a hard time socially. Never really fit in at school or later with the gang at work. But he struck me as a sincere and kind individual. When his co-workers “rode him,” he misinterpreted it as the kind of horseplay that binds male groups. Matt thought he had achieved the social acceptance he had silently yearned for. This partially accounts for why he didn’t want to rock the boat by reporting the incidents.

But the cruel reality was that his co-workers were just getting their jollies. In fact, until discovery, Matt was unaware that they never invited him out for beers after work, or otherwise included him in other reindeer games. Despite what he thought, he was never a member of the tribe. When he learned the score, he thanked me and seemed a more mature person for the experience – the classic elements of the bildungsroman.

In telling Matt’s story, my goal was not to evoke sympathy for him, although I’m sure it generated some. Rather, I wanted his story to be full-blooded. As far as the storyline is concerned, there’s little that’s new under the sun. But if you dig, you’ll find a unique angle to your client’s tale that makes it real.

Of course, you don’t want to give the impression from all this that your client’s injury was a blessing in disguise or some such nonsense. Getting hurt in an accident is never a good thing. But if someone is injured, she must play the cards dealt. Help your client play them in the best possible way. Convey your client’s fortitude in the face of adversity. The jury will respect this.

Remember, as a plaintiff’s attorney, your strategy is to 1.) Play your opponent 2.) All else being equal, play the damages 3.) Stay on the attack, even in defense — keep your opponent on her heels 4.) Cases boil down to credibility 5.) Find your own unique voice to deliver your client’s story.

Ok, I want shift to a discussion of cross examination. If you haven’t tried many cases, most of what you know probably comes from studying for the bar. You’ve learned a lot of techniques but not how to use them.

As you investigate the facts of your case and develop your factual and legal theory, you should simultaneously be developing a strategy of attack and defense. This strategy requires you to know as much as possible about your case and about your opponent’s case. That is, you must build a context from which to deploy your litigation weapons, especially cross – examination.

What are the strengths and weaknesses of your respective cases? Where is your opponent’s case Achilles’s heel(s)? If it has only one weak point, attack there. If several, concentrate your attack on the weakest. Don’t dissipate your force. Concentration of attack is key. And when you breach your opponent’s case, don’t give her the opportunity to regroup and establish the initiative. Maintain the momentum of your argument by insisting it is the relevant point of the case.

A few do’s and don’ts. Don’t cross a witness unless you have to in order to maintain the integrity of your strategy. If the witness’ testimony does not weaken your case or strategy, leave it. Never cross for the sake of crossing, because you do have absolute control over what the witness might say.

If a witness helps, or at least doesn’t harm your legal/factual theory, why cross him on the basis of his, say, criminal record? It’s counterproductive, wastes time, confuses the issues, and runs the risk of unintentionally eliciting harmful information. That’s probably the best piece of advice about cross examination that I can give you today.

Settle on a factual and legal theory, theme and trial strategy and stick to it if you can. Don’t be diverted. If your opponent throws a red ball, don’t feel compelled to chase it. On the other hand, throw red balls to confuse and divert your opponent, her time and energy.

About cross techniques. The simplest solution is usually the best and ironically the first to be overlooked. Everyone wants to be novel. Call it avant-gardism. But just as in sports, it’s wise to stick to the fundamentals. So question a witness on the details of her assertions, not at trial, mind you, but at the deposition.

Never ask a question at trial unless you already know the answer. Sooner or later, if the witness is lying, she’ll fabricate a detail that wrecks her story, a detail that just cannot be.

Don’t corner her in the deposition though. Save it for trial. Remember, to tell a good lie, you have to be really smart, know all the pieces, and most witnesses are not that smart. Also, remember that the truth is usually simple. You can easily tell a lie by its elaborate structure. Other tells – the witness is vague, speaks in sentence fragments, is overly loquacious, is defensive and tight-lipped, tries to change the topic, or answers questions not asked.

As far as specific techniques are concerned, one of the most effective cross-examination techniques is to attack the witness’ conduct, her actus reus. We are used to seeing witnesses crossed with their depos or some other pre-existing statement. This is fine, but actions speak louder than words. I have always found that attacking a witness’ previous inconsistent conduct, as well as post inconsistent conduct, is extremely effective.

When I cross, I begin by determining if I need to cross at all. If so, I begin by eliciting all the favorable evidence I can from the witness, and then I attack inconsistent actions, and only then do I attack previous inconsistent/impossible statements.
Another effective technique is to elicit testimony in conflict with another opponent’s witness’ testimony. You cannot “pit” witnesses’ testimony, but you can certainly argue the inconsistent evidence in closing.

Also, don’t waste time bringing up things like the expert is paid, (so is yours), or that the defendant was arrested for a bounced check 9 years ago. It’s weak and unnecessarily diverts the jury’s attention.

Also very effective — revealing a witness’ basis, or lack thereof, of knowledge. More often than not it’s hearsay or supposition or assumption. And if the basis of the witness’ knowledge is, in fact, empirical, test the witness’ opportunity to observe or hear as well as the quality of her sense organs. See if her drivers’ license requires her to wear corrective lenses.

Also, since many statements are susceptible to multiple interpretations, don’t allow a witness to get away with mushy language. Hold their feet to the fire by insisting they testify in simple, concrete language. Make her specify, specify, specify. Deconstructionists hold that language (and its meaning) is inherently unreliable.
Rubbish. English is a marvelous tool — surgical in its precision. People are mushy, not language. The more interesting question is if there is one, true reality, or is reality always a matter of interpretation?

Once you finish your cross, sit down. Do not extemporize unless your back is against the wall. You should know all the questions you plan to ask as well as the answers.

Don’t break the cardinal rules of cross – never ask a question you don’t know the answer to, and never ask a question that gives the witness free rein, i.e., open ended questions.

Also, don’t lose heart if you’re not very good at any of this in the beginning. I certainly wasn’t. And I’m learning all the time. Cross is not a natural or polite way to interact with others. Actually, it’s quite rude. But you’re not at a tea party. Just keep plugging away, and one day you’ll be in the middle of a trial, and while hardly realizing it, you’re doing very well, and you’ll say to yourself – hey, I’ve got this.

Ok. Let’s pivot a bit and talk about direct examination. The watchwords for direct exams are thoroughness and preparation. Make sure you know the legal elements of your claim, the caselaw, as well as the facts. Concentrate first on making a prima fascia case. Keep it simple. The more your witness talks, the more issues are introduced, the more she opens herself up to attack. Make your prima fascia case and follow up with a few pieces of choice evidence that anticipates and counters the defense strategy. Prepare your witnesses thoroughly, especially for cross. Thoroughness and less is more are the keys to direct. Remember, cross cannot go beyond the scope of direct. Hence, keep your direct powerful, yet lean.

Also, understand that most witnesses ramble, including experts. Many people are unable to come to the point quickly or stay on topic. The remedy is practice, and don’t shy from employing tough love. Let your witness in on exactly what’s going on, your strategy, the legal issues involved, her role, what you are trying to prove with her testimony and why. Clue her in on the big picture. Dig. Educate. Rehearse. Repeat. The key to learning is repetition. The key to understanding is inquiry.

Also — make sure that your witnesses are in synch with each other’s testimony and your theory. Nothing is as gut wrenching as your own witnesses contradicting each other. You want to blame the witness for her stupidity. Wrong. It’s your stupidity. Every witness can be trained. Moreover, internal contradictions reflect poorly on you as a trial lawyer. Remember, your credibility is also on trial.

As far as the quantity of your witnesses is concerned, first, and I’ll repeat, less is more. I’d rather have two or three high – quality, credible witnesses than five or six moderately credible witnesses. But be careful. Every witness, even hi-quality ones is a potential time bomb, primed to demolish your case by one careless remark.

The more witnesses you have, the greater the chance of this happening. Credible, smart witnesses trump quantity every time.

Doctors and cops present a special problem. I’ve had them flip on me at trial. So consider deposing them to lock them into their testimony. If your witness flips, inform the court and move to treat her as a hostile. If your motion is granted, you can cross her using the depo. It’s not elegant, and it’s embarrassing, and probably fatal to your case, but you can still see daylight. Which means you better have some substitute witness you can call, or substitute evidence to admit to make your prima fascia case. Bottom line: be careful with doctors and cops. Most are perfectly fine. Some have their own agendas which may not match yours.

Ok. Let’s move on to Daubert, or the admissibility of expert evidence. Since we are discussing personal injury cases, I’ll discuss Daubert in that context. Recall from your study of constitutional law that cases such as Daubert establish minimum standards binding on lower courts. However, South Carolina’s Rule of Evidence 702 mirrors the federal standard.

The challenge of admitting expert evidence may be broken down into three categories. Qualifying the expert, establishing the validity of the general theory upon which the expert relies, and establishing the factual basis of the expert’s opinions.

As far as qualifying the expert, record her degrees, whether she has had any specialized training in the field, if she has published, professional associations she belongs to and if she has previously testified as an expert.

This last prong is a two – edged sword as an expert may be cross examined on the fact she’s a “professional witness”, i.e., she’s only available for expert testimony. Also, an expert’s credibility is vulnerable if she’s strictly a plaintiff’s or defendant’s witness. You need to unearth this information before you retain her. Demand she furnish her CV which must include her forensic history. Try to use an expert who’s testified for both sides.

If your expert is a doctor, it’s better if she’s board certified. And make sure you get the right kind of expert in professional negligence cases. If it’s a podiatry case of malpractice, don’t call an orthopedist, because you want to establish the standard of care for podiatrists under your set of facts, and if that standard was breached.
Furthermore, the standard of care may differ from region to region. A Manhattan podiatrist may have a higher duty of care than one, say, from Appalachia.

Regarding the general theory the expert relies on, the elements are: that the expert used a particular theory to evaluate facts, that the theory has been experimentally verified, and that the theory is generally accepted in the particular field.

In PI practice, the expert physician may base his opinion on a personal examination of the plaintiff, or upon the medical records. I strongly recommend the former: where and when the examination took place, who was present, how the examination was conducted, and of the expert’s conclusions.

Frankly, I can’t recall an incident when I’ve had a problem admitting an expert or her testimony. Just make certain you establish on record the foundation for her opinion, that she is definitely on your side, and that her testimony is compatible with other evidence in your case.

You can shortcut the process a bit by requesting that counsel stipulate to your experts’ qualifications. That way you can proceed right into the substance. That’s what I generally do. For tactical reasons, however, you may not want to do this if you want to impress upon the jury just what a hotshot your expert is.

Impressive credentials include board certification, published work in recognizable periodicals, like The New England Journal of Medicine, a teaching position at a top university, and other honors and awards of generally agreed upon weight.

Opposing counsel will make an ad hominem attack on your expert or contest the facts upon which your expert bases her opinion, or both. In the case of expert doctors, make certain she has a thorough knowledge of your client’s medical history.

Don’t depend on the client for an accurate history. Get the records yourself and make sure your entire team — lawyers, paralegals, as well as your client and other witnesses know claimant’s past and current medical history.

Your expert should be able to effortlessly recite the claimant’s symptoms, tests conducted and their findings, previous assessments or diagnoses, and the course of treatment you client has undergone — drugs, surgery, PT etc. You don’t want your physician to be unaware of an important fact in your client’s medical history, such as a history of hypertension, even if it’s not directly relevant to your client’s injury, or a previous disorder or injury to the same body part. It could sink your whole case.

The credibility of your expert is usually a fulcrum point in your case. I am constantly amazed by doctors who have to rifle through records to answer simple questions at a deposition, even more when the doctor happens to be the treating physician.

The bottom line is: never let your expert – physician appear ignorant, disorganized or unprepared on the stand. The best expert is one who can effectively joust with opposing counsel during cross. Insist on preparation. Make sure she uses simple language, easily understood by laypersons, and is unambivalent in her opinions. Professionals usually, and rightly so, qualify their answers, but this does not wash well at trial. Don’t buy the excuse she’s too busy to prep or that “she’s got it.” In the litigation context, this is hubris of the most disturbing kind.

One more point. Pay your expert on time, even early. She is an important ally, critical in the construction of your case-in-chief as well as providing grist for your cross of the opposing expert. Make her happy.

Now, as I was thinking about this CLE, I couldn’t avoid the question — what wins trials? Understand that there is no magic bullet. Preparation? No, that’s no guarantee. Preparation is necessary, but not sufficient. Superior speaking skills? Talented jury selection? Good witnesses? Yes. Yes. And yes. All necessary, yet all insufficient.

I will say that many trials usually boil down to witness credibility. Does the jury believe, and like, your witnesses more than your opponents’? If so, you’re on your way to winning. Does the jury like you?

I believe the key to doing well at trial is to keep in mind that trials are won “point by point,” in a process of evidentiary accretion. And you should try to know more than your opponent – factually, legally, strategically, and tactically. This, in addition to making fewer mistakes than your opponent goes a long way to prevailing. Let me share with you a couple of war stories. The first is a DUI trial that shows success at trial is sometimes just weird luck.

I was the defense attorney. A witness appears during trial and asks the prosecutor if he could testify. It was a military case, and the witness was in the defendants’ chain of command — one of his superiors. The prosecutor assumed he would testify for the government. On the other hand, I hadn’t the slightest idea what the witness would say, and I wasn’t about to give him the chance. So I vehemently objected to his testifying, arguing that I had received notice.

The prosecutor really wanted this witness to testify arguing that she also had received no notice. But I thought the prosecution was pulling a fast one. I stood there stunned, apoplectic, as the judge admitted his testimony.

The government directed him, and to everyone’s surprise, he testified that he had observed defendant half an hour before his arrest and that he had appeared sober. That was it for the prosecution. My client was acquitted. As much as I had prepared for the trial — and I was prepared — there was no way I could have foreseen this turn of events. I wondered how much of what I had done really mattered.

Sometimes the outcome depends on what appears at first to be marginal evidence. In another criminal matter, I was prosecuting a strong arm robbery in which the issue was identification. The responding officer had failed to arrest the defendant while he was in hot pursuit, but not before noting that the defendant had a bite mark on his left arm.

Since my witness was not a doctor, I doubted his opinion about the nature of the mark would survive a motion to strike. During prep, I thought this detail too weak to hit hard, but it came out at trial nevertheless.

Under cross, defense counsel breached a fundamental rule – never ask a question unless you know it’s answer. Defense counsel asked him how he knew it was a bite mark. He stated he had a similar scar on his arm courtesy of his three-year-old daughter.

The trial had been a draw up until that point. But as the responding officer uttered these words, you could feel the momentum of the case shift to the prosecution. It was not a detail that I had failed to unearth; I erred in failing to follow through my examination — a mistake which, again by sheer luck, did not negatively affect my case. I should have dug deeper into how the officer knew it was a bite mark. And instead of summarily dismissing the bite mark as inadmissible, I should have at least considered trying to admit it and risk suppression instead of not developing a potentially compelling piece of evidence. Moral of the story: in general, if the evidence is “iffy,” don’t automatically write it off. Keep investigating until you are certain of its probable effect.

The other point of this case is that trials can turn on a dime. Chess is a good example of this principle. Depending on the configuration of the board, a pawn, nominally the least valuable piece on the board, can, depending on the big picture, morph into a piece dearer than your queen.

The unpredictability of litigation combined with inevitability of human error turns litigation into what I frequently refer to as “a wild west show.” It makes it fun for someone like me who enjoys the action, but negotiated settlement is usually the saner alternative.

Thank you for your kind attention.

Thomas Gagne, Esq
August 2018

Photo by Bill Oxford on Unsplash