For The Defense, November 2012 - DRI Today
For The Defense, November 2012 - DRI Today
For The Defense, November 2012 - DRI Today
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Successor, from page 34<br />
vide some insight into why the states that<br />
failed to pass the legislation have rejected it.<br />
Conclusion<br />
While more and more state legislatures<br />
grapple with whether to grant some<br />
reprieve to successor companies that have<br />
not had asbestos industry involvement,<br />
asbestos plaintiffs’ lawyers continue to<br />
seek ways to expand traditional principles<br />
of successor liability to reach more<br />
and deeper pockets. At the same time, the<br />
courts continue to balance applying traditional<br />
successor liability principles to product<br />
liability litigation, assessing whether<br />
to expand successor liability theories to<br />
accommodate the litigation or wait for legislatures<br />
to speak on this issue. Until the<br />
legislatures do speak, successor companies<br />
will continue the delicate dance required<br />
to protect against tort liability that they<br />
did not create to guarantee their long-term<br />
viability.<br />
Nurse Paralegal, from page 21<br />
conclusion of a case because they remain<br />
accessible electronically.<br />
Trial Notebooks<br />
Many lawyers advocate using a trial notebook<br />
in a three-ring binder that a nurse<br />
paralegal will prepare. Other firms do not<br />
use trial notebooks. If a firm uniformly<br />
organizes files, as our firm does, a nurse<br />
paralegal and his or her supervising attorney<br />
will know where to locate documents<br />
in a file, and the file itself can serve as a<br />
trial notebook.<br />
Furthermore, because we save and scan<br />
all important documents to the firm’s computer<br />
system, we can copy them easily and<br />
have them readily accessible during a trial<br />
on a laptop computer or an iPad, if for some<br />
reason the paper document proves elusive.<br />
On one occasion, an enterprising paralegal<br />
in our firm placed a large portion of a<br />
file into a three-ring binder trial notebook<br />
just before a trial. During the trial, neither<br />
the nurse paralegal nor the trial attorney<br />
could locate documents readily in either<br />
the trial notebook or in the file from which<br />
the paralegal had removed the documents.<br />
<strong>For</strong>tunately, they could access the necessary<br />
documents on the computer.<br />
Trial<br />
One role of the nurse paralegal is to make<br />
certain to locate all the necessary subfiles<br />
and make sure that they are filed correctly<br />
and immediately accessible during a trial.<br />
<strong>The</strong> nurse paralegal also verifies that all the<br />
documents in the firm’s computer system<br />
that relate to a case are stored on the attorney’s<br />
laptop computer and the nurse paralegal’s<br />
laptop computer.<br />
<strong>The</strong> nurse paralegal uses a checklist to<br />
assemble all the items that he or she and<br />
the supervising attorney will need during<br />
a trial. <strong>The</strong> checklist is comprehensive<br />
and calls for a primary and a backup of all<br />
80 ■ <strong>For</strong> <strong>The</strong> <strong>Defense</strong> ■ <strong>November</strong> <strong>2012</strong><br />
electronic devices. During a trial, the nurse<br />
paralegal sets up the presentation equipment<br />
as needed, makes sure that each piece<br />
functions properly, troubleshoots problems<br />
with the equipment, and assists the trial<br />
counsel with displaying images.<br />
<strong>The</strong> nurse paralegal should participate<br />
in jury selection. A defense attorney should<br />
not select a jury alone. It is difficult if not<br />
impossible for one attorney to pose clear<br />
questions to prospective jurors, remember<br />
all the answers of each person, recall<br />
the intonation of each answer, and observe<br />
important nonverbal cues from all members<br />
of the group. Various studies indicate<br />
that most communication that discloses<br />
the truth is nonverbal rather than verbal.<br />
Generally, a nurse paralegal, due to training<br />
and experience as a nurse, is skilled<br />
in “reading” people and is in an excellent<br />
position during voir dire to form impressions<br />
and to make notes about them. An<br />
examining attorney probably can determine<br />
which prospective jurors to strike for<br />
cause without assistance. He or she may<br />
also discern which prospective jurors dislike<br />
the attorney without assistance. However,<br />
beyond that, he or she should allow<br />
the nurse paralegal and the physician client<br />
to suggest questions, and the attorney<br />
should seek significant input from them on<br />
excluding and selecting individuals from<br />
the jury pool.<br />
<strong>The</strong> nurse paralegal is deeply involved in<br />
preparing the PowerPoint presentation that<br />
the defense attorney in our firm generally<br />
will use in the opening statement of a trial.<br />
<strong>The</strong> nurse paralegal has unique insight into<br />
how to use medical illustrations, timelines,<br />
and other demonstrative evidence effectively<br />
to introduce complex medical issues<br />
to a jury. <strong>The</strong> nurse paralegal helps ensure<br />
that all the visual aids are medically valid<br />
and factually accurate. Although opinions<br />
conflict on what percentage among jury<br />
members make up their minds during<br />
opening statements, most attorneys believe<br />
that the opening statements are among the<br />
most important parts of jury trials.<br />
During a trial, in our firm the nurse<br />
paralegal types notes on a laptop computer<br />
for use by the attorney during the trial and<br />
for reporting the progress of a case to the<br />
insurer at the conclusion of each trial day.<br />
<strong>The</strong> nurse paralegal’s notes are particularly<br />
useful to the attorney when the time comes<br />
to prepare the closing argument.<br />
Conclusion<br />
<strong>For</strong> attorneys who engage in the defense<br />
of medical professionals and institutions,<br />
working with a nurse paralegal has become<br />
almost obligatory. Attorneys for plaintiffs<br />
recognize their value and increasingly<br />
employ a nurse paralegal or a legal nurse<br />
consultant.<br />
<strong>The</strong> value and level of participation of<br />
a nurse paralegal depends on his or her<br />
qualifications and characteristics, which<br />
optimally should include intelligence, communication<br />
skills, empathy, and curiosity.<br />
A capable nurse paralegal can educate an<br />
attorney invaluably, assist with case management,<br />
relate professionally to clients,<br />
obtain and comment on medical records,<br />
create a medical chronology, interact effectively<br />
with experts, conduct medical literature<br />
research, assist in preparing a client<br />
for the client’s deposition, review file organization,<br />
assist with trial preparation, and<br />
aid an attorney during a trial.<br />
A defense attorney who has the good<br />
fortune of having a long- standing working<br />
relationship with a nurse paralegal<br />
often finds it difficult to imagine how his<br />
or her defense practice could function as<br />
effectively without that nurse paralegal.<br />
Attorneys who currently do not work with<br />
such nurse paralegals can find intelligent,<br />
curious nurses with good communication<br />
skills willing to assist defense attorneys in<br />
representing clients with excellence.