For The Defense, November 2012 - DRI Today

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