For The Defense, November 2012 - DRI Today
For The Defense, November 2012 - DRI Today
For The Defense, November 2012 - DRI Today
Create successful ePaper yourself
Turn your PDF publications into a flip-book with our unique Google optimized e-Paper software.
a DVD to watch about offering deposition<br />
testimony.<br />
<strong>The</strong> nurse paralegal and the supervising<br />
attorney meet with the client to practice<br />
offering a deposition. <strong>The</strong> supervising<br />
attorney asks the client questions that an<br />
opposing attorney likely will ask during<br />
the deposition. <strong>The</strong> nurse paralegal takes<br />
a digital video during the practice session.<br />
<strong>The</strong>y stop recording approximately every<br />
10 minutes, and the physician, the attorney,<br />
and the nurse paralegal watch the<br />
video on a computer monitor. One picture<br />
is worth 1,000 words. Showing a client a<br />
video effectively conveys to a client what<br />
is wrong with the testimony and how he<br />
or she can improve it. In our experience,<br />
the nurse paralegals who have worked for<br />
our firm have made particularly effective<br />
observations and suggestions in an empathetic<br />
manner.<br />
Preparation for Depositions<br />
of Opposing Experts<br />
While our firm’s attorneys have several<br />
important goals when deposing an opposing<br />
expert, almost without exception, the<br />
primary goal is to obtain “sound bites” to<br />
use against the expert during a trial. <strong>For</strong><br />
example, an attorney might ask, “Have<br />
you ever failed a board certification examination”<br />
If the expert answers “yes,” the<br />
attorney has a marvelous sound bite to use<br />
during a trial. Brief sound bites usually<br />
discredit an opposing expert more effectively<br />
during a trial than lengthy deposition<br />
excerpts that jurors might find hard<br />
to follow. Jurors understand and remember<br />
a sound bite. See, e.g., Chip Heath &<br />
Dan Heath, Made to Stick: Why Some Ideas<br />
Survive and Others Die (2007).<br />
To draw out sound bites, first the nurse<br />
paralegal thoroughly researches the background<br />
of each opposing expert. He or she<br />
verifies that the items on the expert’s curriculum<br />
vitae are accurate. <strong>For</strong> example,<br />
an opposing expert in a case that our firm<br />
recently handled indicated on his curriculum<br />
vitae that he was on the medical staffs<br />
of five hospitals. <strong>The</strong> nurse paralegal contacted<br />
the hospitals and found he was on<br />
the medical staffs of only one of the five.<br />
<strong>The</strong> nurse paralegal then obtained letters<br />
from the other four hospitals confirming<br />
the expert was not a staff member. Using<br />
social media and the Internet a nurse paralegal<br />
may find that an expert advertises his<br />
or her services as a witness online or that<br />
the expert is listed with a company that<br />
supplies experts to attorneys. Either way,<br />
it appears that the expert offers his or her<br />
opinions for sale.<br />
<strong>The</strong> nurse paralegal also reviews the<br />
previous deposition testimony of experts<br />
by contacting IDEX or <strong>DRI</strong> and obtaining<br />
copies of transcripts of the expert’s previous<br />
testimony in other cases. <strong>The</strong> nurse paralegal<br />
then highlights the sound bites in the<br />
transcripts so that the supervising attorney<br />
can ask the expert the same questions<br />
during a deposition and hopefully then will<br />
elicit the same sound bites to use during the<br />
upcoming trial in our case. Previous depositions<br />
generally are filled with fodder for creating<br />
sound bites to use later during a trial<br />
to impeach an expert, and a skilled nurse<br />
paralegal will ferret out those sound bites.<br />
<strong>The</strong> nurse paralegal also prepares<br />
memos summarizing the medical experts’<br />
deposition testimony, and in the case of<br />
opposing experts, suggest areas potentially<br />
open to attack during a trial. This is<br />
not to say that an attorney should rely on a<br />
nurse paralegal to prepare direct examination<br />
and cross- examination questions for<br />
experts. However, a nurse paralegal generally<br />
suggests insightful questions, particularly<br />
from a medical standpoint.<br />
Information Management<br />
<strong>The</strong> nurse paralegal in our firm takes on<br />
the responsibility for finding information<br />
when the supervising attorney needs it. <strong>The</strong><br />
nurse paralegal takes a very active role in<br />
monitoring our firm’s electronic and paper<br />
filing systems. Virtually without exception,<br />
the nurse paralegal can access and provide<br />
the required information. Our system has<br />
several features. All incoming documents<br />
are scanned into the on-site computer system<br />
by a file clerk using Adobe Acrobat,<br />
and simultaneously they are saved to the<br />
remote server. To the extent that a document<br />
is compatible with optical character<br />
recognition, the system recognizes the text<br />
as well. We save all the documents that we<br />
generate both to the on-site computer system<br />
and to the remote server. Saving documents<br />
to the remote server enables the<br />
nurse paralegal and the supervising attorney<br />
to access all the documents from any<br />
location with Internet access.<br />
All the electronic documents can be<br />
searched by the filename or for terms in the<br />
text of a document. However, with paper<br />
documents, the nurse paralegal writes on<br />
each document specifically where it is to<br />
be filed using a long- standing system. Designating<br />
the filing destination guides a file<br />
clerk and eliminates guesswork from the<br />
job. Firms can waste a great deal of time<br />
<strong>The</strong> nurse paralegal<br />
has unique insight into<br />
how to use medical<br />
illustrations, timelines,<br />
and other demonstrative<br />
evidence effectively<br />
to introduce complex<br />
medical issues to a jury.<br />
searching for particular paper and or electronic<br />
documents if file clerks don’t receive<br />
filing location guidance.<br />
An effective information management<br />
system should allow an attorney to organize<br />
information in one or more of five<br />
ways: location, alphanumeric, chronological,<br />
category and hierarchy. <strong>The</strong> paper filing<br />
system used by the nurse paralegal<br />
organizes paper categorically and alphanumerically.<br />
It involves seven categories of<br />
numbered and color-coded files for (1) correspondence,<br />
(2) pleadings, (2.1) expert<br />
designations, (3) discovery subfiles, (4) topical<br />
subfiles, (5) expert subfiles, (6) fact<br />
witness subfiles, and (7) medical record<br />
subfiles. Each subfile is filed alphabetically<br />
within its numerical category. <strong>The</strong> nurse<br />
paralegal has a master index of all the subfiles<br />
to consult. Because a file bears the<br />
name of the case, the numerical category<br />
of the subfile, and the color-coded label<br />
assigned to each numerical category, it usually<br />
takes less than a minute for the nurse<br />
paralegal to locate an errant, misfiled subfile.<br />
Paper documents are destroyed at the<br />
Nurse Paralegal, continued on page 80<br />
<strong>For</strong> <strong>The</strong> <strong>Defense</strong> ■ <strong>November</strong> <strong>2012</strong> ■ 21