Pretrial Order

I spent most of Friday doing to final workup on a pretrial order for a jury trial I have in a few weeks on a medical malpractice case.  While I was going through it, I started thinking that this would be a much better way to handle complex divorces cases too.  In the order typically used, all witness including experts have to be listed along with all evidence and any objections.  This way, the court can go ahead and clear up any evidentiary issues before the trial gets going.  It also assists in that if you get an adverse ruling on some critical evidence, you have time to figure out how to get the evidence in another way or can tweak the strategy as needed. 

Rule 615 Experts

Rule 615 of the Rules of Evidence, often called "the Rule" authorizes upon request for prospective witnesses to be excluded from the court while other witnesses are testifying.  However, there is an important exception to this.  Experts are allowed to stay if their presence is is essential to the presentation of the cause.  This is contained in the comments to the Rule and often overlooked.  The theory is that the expert often has to base his or her testimony on information received from various witnesses.  As a result, their opinion can change based upon the information received.

Additur

Additur is virtually impossible to get from a trial court.  This is where the court awards more than the jury did finding the verdict given is inadequate.  I have seen a case sometime back where a party was able to get a new trial on damages where there was no question on liability and the jury awarded zero in damages.  In case you need it, here is the rundown on the law of additur.

An additur may be awarded when (1) " the damages are ... inadequate for the reason that the jury or trier of the facts was influenced by bias, prejudice, or passion," or (2) " the damages awarded were contrary to the overwhelming weight of credible evidence." Miss.Code Ann. § 11-1-55 (Rev.2002). In determining whether the jury was influenced by bias, passion, or prejudice, the appellate review focuses on whether the verdict is so " inadequate as to shock the conscience...." Walker v. Gann, 955 So.2d 920, 931-32 (¶ 38) (Miss.Ct.App.2007) (quoting Wal-Mart Stores, Inc. v. Johnson, 807 So.2d 382, 392 (¶ 27) (Miss.2001)).  The standard of review for a denial of an additur is abuse of discretion. Thompson, 86 So.3d at 237 (¶ 18).

The evidence is viewed in the light most favorable to the nonmoving party, giving " him or her the benefit of all favorable inferences reasonably drawn therefrom." Id. " If that evidence is contradicted, we will defer to the jury, which determines the weight and worth of testimony and the credibility of the witness at trial." Scott Prather Trucking, Inc. v. Clay, 821 So.2d 819, 821-22 (¶ 10) (Miss.2002) (internal quotation omitted). The jury's award of damages will be taken as conclusive if it is " not contradicted by positive testimony or circumstances, and is not inherently improbable, incredible, or unreasonable...." A & F Props., LLC v. Lake Caroline, Inc., 775 So.2d 1276, 1282 (¶ 17) (Miss.Ct.App.2000) (quoting Lucedale Veneer Co. v. Rogers, 211 Miss. 613, 635, 53 So.2d 69, 75 (1951)).

Of course, the flip side of this, remittitur (jury awarded too much) is largely judged by the same standard.  I will discuss it briefly tomorrow most likely.  

Undivided Verdict

An undivided jury verdict is an argument waiting to happen for both defense and plaintiff attorneys due to Mississippi's damages caps.  Not to go too far off track, I still find it hard to justify that all pain in suffering is equal with a maximum value of $500,000.00.  Where it gets tricky is when there is an undivided jury verdict.  Plaintiff argues it is lost wages, future medicals, etc.  Defense argues it is not and largely pain and suffering with a request for a new trial.  On the flip side, if have an divided verdict (i.e. each one laid out), it can make the damages low on actual out of pocket expenses if there is not much in medical bills with the jury thinking they are doing you a favor when they give you two million in pain and suffering and giving you just the value of the medical bills.  Both have advantages and disadvantages.    I think experts to quantify certain values gives it a better chance to hold up on appeal.  If the medicals are relatively low, it is probably better to disclaim the medicals as advocated in the Reptile series books. 

Limited Power of Attorney

On personal injury cases, many times there are releases and checks that need to be taken care of in a fairly quick manner in order to keep the case moving.  My general philosophy has always been to try to keep a case moving on track toward trial.  A limited power of attorney can be of help on that.  A sample is attached here.

Pre-trial Conference

Pre-trial conferences are starting to catch on in state court in Mississippi.  This is routinely done in federal court but has only recently began to be more common in circuit court.  I have found that it greatly assists the parties and the court in a case.  Many of the judges are likewise requiring the parties to do a pretrial order containing witness lists and any stipulations that the parties have.  This helps to cut down on some of the defense attorney gamesmanship I have seen parties attempt in the past.  Unfortunately, I have seen situations where a defense attorney who does not contest liability will start contesting it at trial because no stipulation was entered.  My personal favorite is where a defense attorney had his client not come to court and then tried to say that the Plaintiff could not prove it was his client driving.  The Plaintiff could not identify the Defendant since she was not present and the officer was not subpoenaed because no one was contesting liability.  Issues like this are what make me paranoid.  I have started doing stipulations even on contested cases many times that are often as simple as the stating the parties were in a accident in which each one was the driver along with where the accident occurred.  This establishes the parties identify, jurisdiction, and venue at the start. 

Psychologist Privilege

The psychological privilege for minor children is a sensitive topic.  Many times children have issues with one or both parents following a  divorce.  Many times unfortunately, one parent tries to use the child against the other parent.  In these situations, it is important to get a court order waiving the psychological privilege for the minor child in the course of litigation.  Unfortunately, I have seen situations where the custodial parent will withhold privilege to the noncustodial parent making it impossible to see the results of treatment and confirm that the treating psychologist is getting the full picture on a case.  I recently had a case where the entire opinion of the psychologist changed once full disclosure of certain facts were made to him.  Treatment of this type is very fact sensitive, so without the waiver of privilege it is impossible to tell if the opinion given is correct or goes into the junk science category.