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Shapiro & Appleton

Techniques Our Injury Trial Attorneys Present Medical Evidence to Build Cases, Pt.3

This article is part 3 in a series of articles discussing techniques and strategies our law firm uses when presenting evidence at trial and how to effectively present that evidence so the jurors fully understand and embrace our evidence. In part 1 of the series, we discussed how juror's process new information and the steps we take to ensure they fully absorb our evidence in court. In part 2, we discussed the importance of visual aids and how to get them admitted in court. Now, part 3 discusses some of the types of evidence that we've used to obtain successful jury verdicts.

Since our firm specializes exclusively on injury law, we tend to use a lot of medical evidence. Therefore, here is a list of the medical evidence materials that have shown to be most effective at trial:

Work Restriction Evaluation Forms

In many types of injury and medical malpractice cases, we argue over maximum medical improvement and the permanent physical restrictions that apply. In many cases, you need the narrative report or deposition of the key physician. But for many years, our firm has faxed what is called a work restriction evaluation form to a key doctor, which is simply a snapshot of the physi­cian's opinions about the client's physical restric­tions which can apply at work as well as activity of daily living. Some doctors may charge to complete the form, others may not. Moreover, these forms are typically admissible in evidence as a summary/chart setting forth the physician's opinions at a certain time, when supported by their testimony. These forms are routinely requested by vocational counselors, but we figured out long ago that they have no monopoly on their use! I've been involved in injury litigation in every southeastern state, and I can't remember a case where such a work restriction form was ruled inadmissible as a trial exhibit. We typically use the standard Department of Labor work restriction form which is appropriate for most cases, and details lifting, pushing/pulling, kneeling, and stooping restrictions among others, although we have created a variation for a lung/breathing disorder case.

Typed Client Job Duties List

In many cases involving serious injuries that interfere with a client's job, there is pressure from the employer, or the worker's compensation carrier, to get the worker back to work. Unfortunately, the rush to place the worker at full physical duties may not be in the worker's best medical interests. For many years, I stood by and "reacted" as best I could while the employer provided its list of purported job duties to a therapist conducting a function ca­pacity evaluation. A better strategy is to be proactive. We work with our client to produce their "Job Duties" that are realistic.  

AMA Guides to the Evaluation of Permanent Impairment, Sixth Edition

I often rely on the American Medical Association Guides to the Evaluation of Permanent Impairment in my practice. In any case where a client has sub­stantial permanent injury, the strategy is always to be pro-active and review whatever section of the AMA guides pertain to the nature of injury for the case - even where the treating doctor has not provided an impair­ment rating. When we plan to cross examine the defense medical examiner (DME) and believe our client has any permanent injuries, this is one of our primary sources, particularly if the DME fails to mention this source or if there is an obvious deviation from the Guides.

Naturally, counsel can ar­gue that the DME is simply deviating from the "rules of the road" that the American Medical Association has laboriously created to evaluate objectively our client's permanent injuries. The use of this authorita­tive text goes beyond mere reference. We excerpt any pertinent chart or passage and plan to enlarge it. For example, virtually every chapter includes a chart setting for the various classes of permanent injury-use whatever chart fits your case.

Psychological injury cases - Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)

When we have a case involving psychological/psychiatric injuries, we use what many refer to as the bible of psychological di­agnosis. This should be used similarly to the AMA Guides talked about earlier. The DSM-IV manual sets forth the criteria that are required for a diagnosis, and other objective standards universally recog­nized by psychologists and psychiatrists.


The Simple X-Ray View Box and/or "Positive"

An X-ray or MRI "view box" plugs into a stan­dard output, and we have one at our office, not only to carry into a jury trial if necessary, but also for a videotape trial deposition where imaging/radiology holds relevance. This fosters a teach­ing presentation with our treating physician, and can be the basis for effective cross-examination. Some jurors may have difficulty understanding what a partially translucent X-ray or MRI shows so we also create what is called a "positive" repro­duction. A positive is nothing more than a picture. Every city has a photograph reproduction business that can create a "positive" copy of an X-ray, which you can authenticate with your physician.


The Videotape/Oral Deposition of the Medical Evidence Witness

Plaintiff injury trial attorneys may rely too heavily on videotape medical depositions, particularly any videos that may last for over 90 minutes. In the era of shorter and shorter televi­sion sound bites, do we really believe jurors will be riveted to a videotaped deposition that drones on over an hour? We take the time to organize and edit videotaped depositions. Editing on the fly during trials multiplies our gray hairs. The time and cost of editing based on last minute court rulings can be prohibitive compared with the ease of designat­ing a standard deposition. Having someone read the deposition in the court room has also proven to be effective. In fact, judges have said that jurors often pay better attention to a live reader than a videotape, even if projected on a screen. In the video deposition, we have the videographer vary the image, to show exhibits we are using.

The Summary of Care Exhibit

When our office has created a summary of medical care exhibit we first show it to the medical provider before a deposition, and also show it to defense counsel prior to beginning the deposition. A prac­tice pointer is to avoid any editorial/argumentative comments on the exhibit. I have rarely had a Court refuse admission of a summary of care exhibit intro­duced into evidence earlier at a physician's deposi­tion. Any time we can summarize evidence for the jury, we feel we have accomplished something positive.



Richard N. Shapiro
Personal Injury & Wrongful Death Lawyer Serving Va Beach, Norfolk, Chesapeake & all of Virginia
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