Shapiro, Lewis & Appleton
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INTRODUCTION
This article features abbreviated legal seminar materials which take an in-depth look at the discovery provisions of Virginia state and federal rules. If you're someone who has been injured, your lawyer should be following these guidelines. If you're an attorney looking for essential information on how to successfully handle discovery in litigation, you've found the right article. It provides a detailed analysis of vital documents and evidence such as medical examination orders, vocational examination orders, corporate representative depositions, work restriction evaluation forms, and much more.
A. INTERROGATORIES (RULE 4:8) AND REQUEST FOR PRODUCTION OF DOCUMENTS (RULE 4:9) AND REQUESTS FOR ADMISSIONS (RULE 4:11)
The appendix includes a number of forms or documents that may prove helpful in a particular case. There is included a basic set of interrogatories and request for production of documents in a personal injury case, and an example of a set of requests for admissions as well.
B. MEDICAL EXAMINATION ORDERS
The topic of medical examinations (Rule 4:10) and even vocational evaluation requests comes up in personal injury litigation often. There is included in the appendix an example of a medical examination order, which we believe is in the interests of the plaintiff to have entered rather than to simply have an attorney agreement. This can prevent overriding of problems such as the plaintiff appearing at the doctor's office, and being asked to fill out a comprehensive intake form, which we do not believe he defendant has a right to obtain, as but one example. Also, in order can avoid confusion or disputes about the scope of the examination or whether special tests can be conducted also. Provisions can be had about costs or expenses depending upon the travel issues in the case. Also, a number of state courts have more recently allowed plaintiff's to have a spouse present during an examination or a witness, to have a videographer or even a court reporter. More and more, courts are allowing plaintiffs to have a witness or record created of this examination.
C. VOCATIONAL EXAMINATION ORDERS
Also included is a draft vocational examination order, in a case where such issues may be involved so the draft order may simply serve as a template. Note: there is not a clear right to this type exam under Rule 4:10.
D. FINANCIAL BIAS DISCOVERY
Because of the growing interest in the financial bias of expert witnesses, there is attached a copy of a set of interrogatories/requests for production of documents relating to the financial information sought from experts, in a situation here where you seek the financial information from the defendant itself rather than via a subpoena duces tecum vehicle. This arises in a situation where you know the defendant company is paying the experts annually via a 1099 and will clearly have an accounting record of the information that you are seeking. The documents can be modified for a circumstance involving a direct subpoena duces tecum. However, one should keep in mind that the Virginia state court discovery rules are not crystal clear on whether there is any right to subpoena an expert directly, with regard to financial bias information or otherwise, in light of the wording of the Virginia Supreme Court Rule 4:1(b)(4). It is our firm's position in Virginia state court litigation that a subpoena duces tecum is not a proper vehicle to discover information from an expert once a report or interrogatory answer is provided. There is a solid argument that good cause must be shown before the issuance of a subpoena duces tecum to such an expert.
E. MOTIONS FOR INSPECTIONS
Turning to the issue of motions for inspection, under Va. Supreme Court Rule 4:9 these can arise in any case where you seek access to real property or even to an item of equipment that you know is in the possession of the defendant. Often a consent order can be worked out but where consent cannot be granted a typical motion should be filed. Some defendants ask plaintiff's counsel, or any persons attending the inspection to execute a release of liability. Our firm has litigated this as have lawyers around the country and many cases stand for the proposition that since access is being granted under a court right or order, there is no entitlement to a release of liability in such circumstances. A motion to inspect and a short memo of law is attached relating to defendant requests for a release of liability.
F. CORPORATE REPRESENTATIVE DEPOSITIONS
Another example form is attached of a typical corporate representative deposition notice (Federal Rule Equivalent 30(b)(5) or (6)) - under the Virginia Supreme Court Rules this is found at Rule 4:7(a)(3). This is often an under-utilized yet powerful plaintiff tool tool any time there is a corporate entity defendant in litigation. A plaintiff has a unique right to require that the corporation or entity produce a representative to address certain subject areas of relevance to the lawsuit. Of course, a defendant does not have any such corollary right where an individual is a plaintiff, but a defendant is entitled to use the deposition of a plaintiff for any purpose and may read portions of that deposition even if the plaintiff is not on the witness stand. However, the power of a corporate representative deposition is the same as that of the deposition of a plaintiff or defendant-the plaintiff's counsel may offer portions or all of the corporate representative deposition even if that representative is available as a witness at trial. Some attorneys incorrectly refer to this as a "most knowledgeable corporate representative" but a careful review of the rule does not require a defendant to produce the most knowledgeable person necessarily, but the entity must produce a witness that has knowledge of the subject areas in the deposition notice. A sample of a suitable notice is attached although counsel must be creative and address all relevant areas involved in the litigation in the notice. If there is any question about documents or their identification or abbreviations these are also an appropriate subject of a paragraph along with other relevant areas.
APPENDIX
DISCOVERY ISSUES
1. Basic set of interrogatories and request for production of documents
2. Requests for admissions
3. Medical examination order
4. Vocational examination order
5. Interrogatories and request for production relating to the financial information sought from experts
6. Plaintiff's motion to inspect
7. Memo of law relating to defendant requests for a release of liability
8. Corporate representative deposition notice
SETTLEMENT AND MEDIATION
Each case involves unique settlement and mediation issues. However, the array of evidence that can be utilized for purposes of a settlement package, or at a mediation takes time and consideration. Please refer to an article which Richard N. Shapiro authored in the Virginia Trial Lawyers Association Law Letter, The Journal of the Virginia Trial Lawyers Association, Vol. 21, No. 1, 2009, entitled "Using Medical Evidence to Maximize Personal Injury Case Damages". A number of settlement tools are outlined below with attachments where relevant:
A. WORK RESTRICTION EVALUATION FORMS
A typical one-page work restriction evaluation form is a good tool that obtains a snapshot of the primary opinions of the treating doctor with regard to an injured person. This can be utilized in injury cases and can be enlarged or reproduced as part of any presentation.
B. INJURED PERSONS' JOB DUTY LISTING
In an injury case, work with the plaintiff to draft a two-page maximum length "My Job Duties" document outlining the duties that the person has at their work particularly if they are unable to do the job at the present time.
C. AMERICAN MEDICAL ASSOCIATION GUIDES TO THE EVALUATION OF PERMANENT IMPAIRMENT (CHARTS)
Obtain a copy of any relevant chart from the AMA Guides, and refer to it with a physician in order to show that there is permanent injury to a plaintiff in an injury case.
D. CREATING "POSITIVES" OF IMAGES SUCH AS X-RAYS OR MRIs
Any company that reproduces X-rays and images can create what is called a positive which is simply a black and white image of an X-ray or MRI. Theses eliminate the need for a view box and are much easier for not only a witness, but for a jury to understand at trial. These also can be utilized in any settlement or mediation particularly if the image shows an obvious abnormality such as a bulging or protruding disc in the spine.
E. SUMMARY OF MEDICAL CARE EXHIBITS
This is a simple summary of care that outlines all of the dates of medical care that are relevant to a particular case. This is very important to use with a medical provider or with the plaintiff in an injury case. See example.
F. MEDICAL EVIDENCE ILLUSTRATIONS
A good medical illustration, whether a stock image or a custom illustration will show proof of a physical or medical limitation. An example is attached.
G. MECHANISM OF INJURY GRAPHICS
An example is attached of this often important tactic - have a medical or other illustrator create a visual graphic which depicts the precise way which an injured person claims the accident occurred-often called a mechanism of injury graphic. This can often crystallize how an injury could reasonably have taken place, and the plaintiff can attest to its accuracy at their discovery deposition early in litigation. See attached image. Typically, medical illustrators and some other professionals who create graphics can create these types of images based on a description provided by the injured person in your case.
H. CUSTOM VIDEOTAPE CLIPS OF PERTINENT WITNESSES OR OF CLIENT
In a full-blown mediation setting, it is very helpful to obtain interviews of the plaintiff or of key witnesses to educate the opposing party of a prelude of what will take place at trial. Family members or friends who describe the changes in an injured person can be very powerful. Despite extensive discovery, when a responsible party hears a preview of important physical condition evidence, it can foster settlement discussions. Several live presentations of videotaped clips will be offered as examples.
APPENDIX
SETTLEMENT AND MEDIATION
How can you identify a top Virginia injury lawyer for your case? Look no further.
Our VA personal injury lawyers have been selected for many accolades.
Two of the attorneys with our Virginia Beach accident injury law firm, James Lewis and Rick Shapiro, have been named the Best Lawyers in America since 2008. Two of our VA injury lawyers -- Lewis and Shapiro - have been named to Virginia Super Lawyers for Personal Injury since 2010. In addition, Lewis and Shapiro have been selected for inclusion in the National Million Dollar Advocates Forum since 2009.
Our VA accident injury law firm was the first in the commonwealth nvited to join Primerus, a select group of highly ethical and respected law firms. Rick Shapiro was named as one of the Top 100 Injury Lawyers in Virginia by the National Trial Lawyers Association.
In October, 2000 our law firm and co-counsel obtained what was then the largest verdict in Virginia's history for an injured person. Our brain damaged client received an initial award of $46 million that rose to $60 million with interest when the defendant abandoned an appeal and agreed to settle.
Geographical Areas
Our personal injury lawyers handle personal injury cases throughout the eastern USA, and work closely with lawyers in other states on signficant injury cases.
In Virginia, this includes Norfolk, Virginia Beach, Chesapeake, Portsmouth, Hampton, Newport News, Suffolk, Richmond, Petersburg, Roanoke, Salem, Alexandria, Arlington, Fairfax, Fredericksburg, Charlottesville, Ashland, Big Stone Gap, and every community on the Eastern Shore, including Accomack, Onancock, Chincoteauge, Wachapreague, and Cape Charles, Bloxom, Eastville, Exmore, Greenbackville, Machipongo, Mappsville, Melfa, Nassawadox, Onley, Tangier, Temperanceville, Wachapreague and Wallops Island.
In West Virginia, we can handle personal injury claims in Bluefield, Beckley, Bridgeport, Charles Town, Charleston, Fairmont, Huntington, Lewisburg, Madison, Martinsburg, Morgantown, Moundsville, Parkersburg, Ripley, Sutton, Weirton, Wheeling and any other town or county.
Injury Lawyers licensed in VA, WV, North Carolina (NC), South Carolina (SC), Kentucky (KY), Florida (FL) and Washington, DC.
Car Accident Lawyers & Motorcycle Accident Attorneys
Crashes Caused by Trucks
Medical Malpractice/Doctor Mistakes
Brain Damage/Head Injuries
Railroad Injury/FELA
All Serious Injuries
Dangerous Drugs & Devices/Product Recalls