Presentation made to New Jersey Association for Justice February 2015 Michael V. Kaplen, Esq. Professorial Lecturer in Law George Washington University Law School De Caro & Kaplen, LLP Pleasantville, NY 914 747 4410 [email protected]www.brainlaw.com copyright 2015 De Caro & Kaplen, LLP www.brainlaw.com
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Presentation made to New Jersey Association for JusticeFebruary 2015
Michael V. Kaplen, Esq.Professorial Lecturer in Law
Professorial Lecturer at LawGeorge Washington University Law SchoolBoard Certified, National Bd. of Trial Advocacy Board Certified, American Bd. of Professional Liability Attorneys Board of Directors, NYS Academy of Trial LawyersPast President, Brain Injury Association, NYSPast Chair, NYS Traumatic Brain Injury Services Coordinating CouncilPast Chair, American Association for Justice, Traumatic Brain Injury Litigation Group
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It doesn’t get better over timecopyright 2015 De Caro & Kaplen, LLP www.brainlaw.com
Preparation is Key
The more I prepare, the luckier I getcopyright 2015 De Caro & Kaplen, LLP www.brainlaw.com
Prior medical conditions
Prior psychiatric conditions
Prior head injury
Neurological conditions
CT scans, MRI studies
Military Service
Education
Records you must review before the
defense goes fishing
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Plaintiff was suffering from the same problems before incident—(Psychiatric records)
Plaintiff was making the same complaints before incident
Prior lawsuits with similar claims of injury
Poor work record before incident
What is Defense Hoping to Find?
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Can you explain it away?
Did the plaintiff have a condition that made him/her more susceptible to brain injury? (egg shell skull)
Did this incident cause an aggravation of a pre-existing condition?
Maybe you need to decline the case!
You Need to Review These Records
First!
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You must alert your client to dangers of:
Facebook
Linked In
Google Plus
Social Media
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Obtain Photographs of Your Client
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Have someone knowledgeable attend with plaintiff
Obtain the raw data for expert review
Defense Physical Examination
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Background and experience
Knowledge of subject
Agreement with your positions
Destruction of expert
Depositions of Defense Experts
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Background and experience
CV-qualificationsCompensationRelationship with attorneysBooks and articlesContributions to web sitesContinuing education courses
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What were they asked to do?
What did they review?
What did they seek to accomplish?
How did he/she go about their task?
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Where did you get this information?
Is that all?
Anything else?
What significance did this information have to you in formulating your opinion?
What do you know about my client?
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Is there anything else that you asked to review before today’s deposition that you haven’t received/
Why are these items necessary?
What’s missing?
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What are your opinions?
Injuries, disability, permanency, causation
How do you know this?
Reliance on any books or articles in formulating opinions?
Any other alternative explanations that you considered?
Obtain all of their Opinions
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What tests did you use?
Why did you choose these tests?
References to books or articles substantiating these tests?
Are they part of a computer battery of tests
Did you utilize entire test?
Did you utilize entire battery?
Testing
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Who administered tests?
Qualifications of individual?
Who scored tests?
What norms did you use?
What assumptions did you make?
Where are the hard copies?
Testing
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Voir Dire
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Harris Poll Study:
Respondents think they can determine if a person has a brain injury from observation
When asked to identify persons with a brain injury, they identify persons with a physical disability
Your client looks to good
Keep Your Client Out of the Courtroom
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Head Injury
Brain injury
Brain Damage
Brain Injury Survivor
The Words You Use Are Important
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Federal Rules of Evidence: 803(18):
“To the extent called to the attention of an expert witness upon cross-examination or relied upon the witness in direct examination, statements contained in published treatises, periodicals or pamphlets on a subject of history, medicine or other art or science established as a reliable authority by the testimony or admission of the witness or other expert ….”
Reliable Authority
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Reserving your right to agree or disagree with any portion of the text would you generally agree that Professor’s Lezak’s text is a reliable authority on the subject of neuropsychology?
Cross Examination-Medical Texts
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What is the nature and extent of a person’s impairments?
Are the impairments caused by or consistent with a brain injury?
What area(s) of the brain were injured?
What questions can a
neuropsychologist answer?
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Was the event/accident the competent producing cause of the brain injury and impairments?
How were alternative explanations ruled out?
What questions can a
neuropsychologist answer?
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Will there be further recovery of function? Are the impairments permanent?
How do the impairments interfere with daily functioning in the home environment, the work environment and other aspects of an individual’s life?
How do impairments impact spouse? Parent?
What questions can a
neuropsychologist answer?
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What are rehabilitation needs of the individual?
What assistance will the individual need because of his/her deficits?
What questions can a
neuropsychologist answer?
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Jury needs to understand the mechanism of closed head brain injury
Jury needs to know how it relates to the traumatic event
Jury needs to know that the forces which were transferred to the plaintiff’s brain were sufficient to cause brain damage