TorteDeForm

Eric Turkewitz

How to Fool a Jury (Is It Insurance Fraud?)

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Cross-Posted from New York Personal Injury Law Blog:

This is a lesson on how to fool a jury. And how to get caught. It's about doctors and lawyers and ethics that belong in the sewer. It's about potential insurance fraud. And it is an exposé of a very seamy side of personal injury trial practice. And I will name names. It might be the most important post I've made since I started blogging, and it comes out of a Manhattan trial that just concluded.

The story emerges because doctors who performed "independent" medical exams in a personal injury case were told, in writing, to game the system. A document was discovered in the file of a neurosurgeon that included this: If prognosis appears good, then state that - otherwise be silent.

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Posted at 9:51 AM, Feb 13, 2008 in Insurance Industry | Medical Malpractice
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Comments

How does this differ from any other coaching of witnesses that occurs? I agree that it is horrible but at the same time, coaching occurs and witnesses are told how to answer the questions, what to wear, how to act. Where is the line?

Posted by: throckmorton | February 13, 2008 1:23 PM

It is no different from any other ethical violation. And all ethical violations deserve our outrage. It is not mere coaching to tell someone to lie by omission if the truth hurts your side, or to "edit out" the truth from reports. If you read the full article you see that it gets much worse than this summary provides. Follow the link to read the whole article. I tell you, it's pretty astonishing.

Posted by: Kia | February 13, 2008 3:57 PM

So, Kia, what do you think about the coaching done in the Baron & Budd Script Memo to clients of Fred Baron? (Coaching defended by DMI blogger Charles Silver...)

http://www.overlawyered.com/2008/02/coaching_medical_witnesses.html

Posted by: Ted | February 13, 2008 6:44 PM

To some extent, the truth can be ferret out by skillful cross-examination, but it should not be the skill of the lawyer that determines the end result.

Very honest witnesses can be rattled by the gamesmanship of opposing counsel and dishonest witnesses can come across as righteous if they can portray enough confidence in what they are saying (this works welll for used car salespersns as well)

The litigation game, the way it currently is played, is a poor substitute for justice

Posted by: Paul W Dennis | February 13, 2008 8:20 PM

Kia: The land pirate is free to impeach the expert by exploring for such influence, change of testimony, etc.

I would like a change in the Rules of Evidence requiring the disclosure of all non-testifying expert utterances. The land pirate gets turned down by 12 ordinary experts. He finds an alcoholic reprobate, has-been, abandoned by patient and peer, desperate for a dollar. That is whose testimony he presents. shouldn't the jury learn of the scathing opinions of the twelve prior experts with fewer problems?

Posted by: Supremacy Claus | February 14, 2008 12:04 AM

I would take the opposite tack from Supremacy Claus and do away with all discovery. Most judges simply tell the opposing parties to exchange file cabinets which is wrong on so many levels. It shouldn't be up to your opponent to prove your case for you. It should be a matter of each party putting on its best case / cross-examination (a necessary evil) and then let the jury decide. It is the current discovery process that adds so much cost (and time) to the litigation process. There is an old (and still true) saying that "justice delayed is justice denied" and civil litigation often takes five or more years. Whenever a defendant wins in a civil matter they have been royally screwed, given the costs involved

Posted by: Paul W Dennis | February 14, 2008 6:30 AM

Paul makes a valid, if currently insane point. Torts are punishment, no matter the masking ideology of the lawyer that it is compensation. The bloggers here cite many other, improper purposes, quite openly.

Torts are punishment of the innocent and of the guilty. If that is true, then discovery violates the Fiftth Amendment whenever it requires self-disclosure. Objects, such as records, bodily fluids, objects retrieved to prove defect, are not exempt, even in the criminal law.

Posted by: Supremacy Claus | February 15, 2008 1:48 AM