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Proving Causation in Challenging Personal Injury Cases

In every personal injury case the plaintiff must be able to prove that the defendant’s actions (or inactions) was the legal (or “proximate”) cause of the plaintiff’s injuries. Causation is always an issue, even if it is relatively simple. Not every case is as straightforward as “A struck B and B was hurt.” When connecting the dots from the defendant’s negligence to the plaintiff’s injury is not easy, the plaintiff’s attorneys must focus on establishing a strong case for causation. Tracing the consequences of a defendant’s negligence can be difficult for a number of reasons. That is because causation is complicated by a number of related factors:
  • Time. When time passes between a defendant’s negligent action and the resulting injury, showing causation can be more difficult. This is partly because important evidence can be lost to time, as physical evidence can be destroyed, memories can fade, and important witnesses cease to be available (for example, if a key employee of a business defendant is no longer working there).
  • Intervening causes. For a defendant to be held liable for an injury there must not be an intervening act of negligence that could also have caused the injury. Sometimes the plaintiff’s own negligence may have contributed to some or all of the damages suffered by the plaintiff. Other times another person’s wrongful actions were the real cause of the injury, but that person hasn’t been identified. The more time that has passed, the more likely the defendant will argue for intervening causes.
  • Scientific proof. Causation can require a highly technical analysis. The analysis may be of mechanical evidence, such as the failure of a product’s components. Or it may be medical, as in cases involving cancer or other illnesses that are slow to develop. When specialized knowledge is required to prove causation, the plaintiff’s team must make provision for it in their case if they hope to prevail.
Plaintiffs faced with complex causation challenges can overcome them using several approaches. The first is simply the process of uncovering evidence through discovery. In discovery both sides in the litigation ask for documents and conduct interviews (depositions) of individuals with knowledge about the facts of the case. Discovery often uncovers important facts that can be useful for establishing causation where it might otherwise remain hidden. In many cases an expert witness can help the plaintiff provide technical analysis of the causal elements related to an injury. Experts are often invaluable in assisting judges and juries as they examine issues that require more than a commonsense understanding of the facts. Experts are hired by the plaintiff’s attorneys and their fees are typically taken out of the final award, but because their input can be decisive, they are often worth the expense. Proving causation is at the core of a personal injury attorney’s practice. Experienced attorneys know how to use the tools at their disposal to craft winning arguments. For more than 45 years the law firm of Greenman Goldberg Raby Martinez has represented Las Vegas clients in personal injury cases. For a free attorney consultation about your case call us at 702-388-4476 or contact us through our site.

How Attorney-Client Privilege Works in Nevada

Attorney-client privilege is a key component of the American legal system. By ensuring that many kinds of conversations and other interactions between an attorney and client are protected from being subjected to subpoenas and evidence requests, the privilege ensures that clients can have frank, open discussions with attorneys without concern that an opponent might use them in litigation. Like a fortress under siege by an attacking army, attorney-client privilege can come under assault during the course of a case, as opponents look for ways to draw out information that doesn’t qualify for protection. Therefore attorneys and clients need to take care to preserve the privilege wherever possible. Nevada law provides that a client has broad authority to refuse to disclose and prevent others from disclosing confidential communications that fall within three categories:
  1. Communications between the client and the client’s lawyer.
  2. Communications between the client’s lawyer and the lawyer’s representative, such as a paralegal.
  3. Communications made for purposes of facilitating the rendition of professional legal services to the client, such as if the client’s attorney has a discussion with the attorney of a third party about a shared issue.
The attorney-client privilege applies to conversations between an attorney and client even at the very beginning of their relationship, before an engagement letter is signed and even if the client decides to not hire the lawyer. This means, for example, that a preliminary consultation about a potential case would be covered. This allows individuals to seek out advice and evaluate attorneys with an open and honest discussion of their questions. There are several important limits on attorney-client privilege. Some of these limits prevent communications from ever being protected by the privilege, while others simply eliminate it.
  • The client may waive privilege. Waivers can be intentional or accidental. In general, talking about a privileged communication in a nonconfidential context can threaten to destroy its protections, or prevent the privilege from applying.
  • The privilege does not apply to communications by a client who is knowingly seeking advice in connection with planning criminal activity.
  • In certain cases the privilege doesn’t apply where the communications themselves are of central importance to the case. For example, if the attorney helped a deceased client prepare a will, the communications between the client and attorney won’t be privileged if there’s a dispute about the client’s intent. Another example is if the communications pertain to claims of wrongdoing by the attorney.
  • Attorneys are required to disclose information that the attorney believes will prevent a crime that could lead to serious injury or death.
For over 45 years the law firm of Greenman Goldberg Raby Martinez has represented Las Vegas clients in cases involving personal injury, workers’ compensation, and other disputes. Contact us today for a free attorney consultation about your case. We can be reached at 702-388-4476 or send us a request through our site.

Using Demonstratives to Prove your Personal Injury Case

Demonstrative evidence can be a powerful tool for establishing a legal case. In broad terms, demonstrative evidence refers to materials prepared by a legal team to summarize or illustrate other forms of evidence—raw data, witness testimony, collections of photographs, and so on—in a way that will help a judge or jury interpret and understand it. Demonstrative evidence might come in the form of chart, a table, or a map. Critically, demonstrative evidence has been prepared specifically for trial in reliance upon an underlying set of information. Because demonstrative evidence is created by a party in the litigation it must meet strict standards to be admitted in court, as determined by Nevada’s evidence law. In simplified terms the evidence needs to have the following characteristics:
  • Relevance. The evidence must have a connection with a material fact that is at issue in the case.
  • Identification and authentication. The sources of facts included in the evidence must be identified and authenticated. In other words, the demonstrative item must not include information that is not otherwise already established in the case. If the evidence presents information that is based on expert analysis or testimony, a qualified witness may need to confirm its accuracy.
  • Usefulness. Evidence needs to be useful to the fact finder (the judge or the jury) to be admitted. “Useful” means, among other things, that the information is presented in a clear and accurate way. By definition, the evidence can’t be deceptive, misleading, or confusing. A chart that distorts a critical piece of information, for example by displaying it in particularly large text compared to the rest of the chart, might be deemed misleading.
Demonstrative evidence always poses a risk that it may unfairly prejudice a jury in ways that are out of proportion to the information that is presented. A stark example of this might be a barrage of explicit photographs of an injured person, formally presented to show the extent of the person’s injuries but strategically intended to evoke sympathy. Courts have the option of limiting or excluding demonstrative evidence that might have a disproportionate or unfair effect. In a personal injury case the central questions tend to be whether the defendant behaved negligently in causing the plaintiff’s injury, and the extent to which the plaintiff has proven the damages that he or she has claimed. Demonstrative evidence can be useful in both areas. Once witness testimony and documentary evidence has been presented to the court, it can be helpful to summarize it in a chart to show how the defendant’s wrongful behavior led to the plaintiff’s injury. Likewise, preparing a table showing all the ways the injury has harmed the plaintiff, from medical costs to pain and suffering, can help the court form a complete picture of all the ways the injury has affected the plaintiff’s life. For more than 45 years the law firm of Greenman Goldberg Raby Martinez has represented clients in personal injury cases. We work closely with clients to develop winning strategies for taking on difficult challenges. If you have been injured and you have questions about your case, please reach out to us for a free attorney consultation. We can be reached at 702-388-4476, or ask us to call you through our contact page.

Can Witnesses be Forced to Testify in Personal Injury Cases?

The viability of a personal injury lawsuit can sometimes hinge on the testimony of witnesses. Witnesses can provide essential information about an injury and related matters, such as the extent of the plaintiff’s damages. Some witnesses are willing to provide testimony and information without being compelled to do so. But others may be reluctant. Perhaps the witness is a friend of the defendant’s and doesn’t want to testify to facts that will help the plaintiff. Or perhaps the witness is an employee of a company that is being sued and wants to protect a career. In many cases such witnesses can be required to testify through the use of subpoenas.

What is a subpoena?

The subpoena power is a significant resource that only becomes available once a lawsuit has been filed. Its purpose is to give the parties to litigation a means to gather evidence related to the case even against the objection of individuals who have it. Subpoenas may demand testimony (a subpoena ad testificandum) or production of documents or other materials (a subpoena duces tecum). A court may charge someone with contempt if they fail to comply with a valid subpoena. Under Nevada law contempt is punishable by a fine of up to $500, imprisonment for up to 25 days, or both, as well as reimbursement of legal fees and other expenses of the party that originally sought the subpoena. The mechanics of subpoenas in Nevada state civil courts are governed by Rule 45 of the Nevada Rules of Civil Procedure. To be valid a subpoena must comply with all of the requirements of Rule 45 and other related rules. A subpoena must be served upon the party being compelled to appear. Service must be in person and, with a few exceptions, must be accompanied by compensation for the witness’s mileage and a day’s fees.

Can someone avoid a subpoena?

There are a few ways someone can avoid responding to a subpoena. Many of the exceptions relate to the validity of the subpoena itself:
  • Avoiding service of process. One reason people hire professionals to serve process is that some people take pains to avoid it, thereby frustrating efforts to make the subpoena valid and binding. Process servers use creative methods to deliver documents to people who try to hide from service.
  • Undue burden. A respondent is not required to comply with a subpoena that creates an undue burden. This abstract concept is evaluated on a case-by-case basis, but might include things like interrupting necessary medical care. An attorney who issues and serves a subpoena that creates an undue burden or unreasonable expense upon the person being served can be subject to sanction by the court.
  • Reasonable time. The subpoena must allow the respondent a reasonable time to appear.
  • Reasonable place. A subpoena cannot order someone to travel more than 100 miles from the respondent’s home or business, unless it is to the place where the trial is held.
  • Protected information. Subpoenas may be quashed or modified if they require someone to disclose trade secrets, confidential business information, or compels an opinion by an expert who has not been retained by a party as a paid witness.
Experienced personal injury attorneys are used to using subpoenas to gather information that pertains to their cases. For more than 45 years the law firm of Greenman Goldberg Raby Martinez has represented Las Vegas clients in personal injury cases. For a free attorney consultation about your case call 702-388-4476 or send us a request through our site.

Discrediting Expert Testimony in Nevada Personal Injury Cases

Discrediting Expert Testimony in Nevada Personal Injury Cases
Expert witnesses can play an important role in civil litigation involving personal injury. Medical experts are often needed to provide underlying facts about the plaintiff’s injuries. An accountant’s testimony may be needed to establish a reliable figure of the plaintiff’s lost future earnings. An engineering expert may have useful insight into defects in a product’s design. Finding flaws in an expert witness’s testimony is a key component of litigation strategy for both sides in a dispute.

Nevada’s rules of evidence and expert testimony

Under NRS 50.275, an expert witness can provide testimony based on his or her scientific, technical, or other specialized knowledge in situations where such testimony will help the jury or judge understand a fact that is important to the case. The witness must be “qualified as an expert by special knowledge, skill, experience, training or education.” For example, a veterinarian with experience treating horse injuries may be qualified to offer testimony about an injury to a valuable horse, but probably isn’t qualified to testify about a person’s head trauma. An expert is allowed to provide an opinion about complex topics, such as whether the plaintiff’s cancer might have been caused by chemicals present in the defendant’s building. An expert’s opinion can be based on facts made available to the expert in preparation for trial; the expert doesn’t need to base an opinion solely on information that is in evidence. NRS 50.285. A court can require an expert to disclose data and methods used to reach an opinion, and these pieces of information can also be required if they become the subject of the counterparty’s cross-examination. NRS 50.305. There are specific types of expert testimony, such as that provided by a doctor about a medical issue, that are subject to specific guidelines. Absent specific rules, judges in Nevada state courts have “wide discretion” to evaluate expert witness testimony to determine whether it poses an undue risk of confusing the jury. Higgs v. Nevada, 126 Nev. 1 (2010).

Casting doubt on an expert’s testimony

There are a number of common ways an expert’s testimony can be brought into question by an opposing attorney. Here are some examples:
  • Examine the expert’s pretrial process for significant errors or omissions. If the expert’s opinion is based on faulty reasoning, the opinion itself may not be sufficiently reliable to be admitted into evidence.
  • Raise questions about the expert’s qualifications to speak on the specific topic at issue. Even someone who holds advanced degrees in a specific field may not have the necessary experience to speak to the technical topics at issue in the case.
  • Present a contrary expert opinion. Because the value of expert testimony can often be inconclusive, requiring the jury to weigh it relative to other pieces of evidence, the opposing side can benefit enormously by presenting another expert witness who holds a different opinion.

GGRM is a Las Vegas personal injury law firm

The law firm of Greenman Goldberg Raby Martinez has represented personal injury clients in the Las Vegas area for over 45 years. We work with expert witnesses whenever doing so will help our clients’ reach a favorable outcome. For a free attorney consultation about your case, please give us a call today at 702-388-4476. We can also be reached through our contacts page.

The Role of Expert Testimony in Personal Injury Cases

The Role of Expert Testimony in Personal Injury Cases
In some personal injury cases the cause of the plaintiff’s injury and the defendant’s liability for it can be fairly easy to explain and understand. Ordinarily no special training is needed to understand that a wet floor can cause someone to slip, or that a thrown rock can cause head wounds. But the story is more complicated in many cases. Could a particular chemical cause the plaintiff’s cancer? Was the defendant’s product properly engineered to prevent injury? Did the defendant physician comply with professional standards during surgery? Answering questions like these often requires the testimony of an expert witness.

Nevada’s standards for expert witnesses

The purpose of an expert witness is to allow the case’s trier of fact—the jury or judge—to reach an objective opinion about the significance of technical evidence presented at trial. To qualify as an expert witness in Nevada state court the individual and his or her testimony must meet three requirements (set out in NRS 50.275):
  1. Qualification. The witness must be qualified in the area of specialized knowledge to which the testimony pertains. Qualification may be established by a witness’s education or professional experience.
  2. Assistance. The witness’s expertise must be helpful to the triers of fact as they work to understand a piece of evidence or a disputed fact. Parties may object to specific elements of testimony if it only serves to confuse or distract from the main issue.
  3. Limited scope. The witness’s testimony must be limited only to the areas where the witness is qualified. For example, an engineer asked to offer an opinion about a defect in a ladder can’t also offer input on whether falling from a ladder could cause the defendant’s heart attack.
In some cases an expert’s testimony is a legally required component of a claim. For example, in a professional negligence case, where the defendant is a licensed professional such as a doctor, plaintiffs must submit a sworn affidavit signed by an expert witness who agrees that the defendant acted negligently.

Problems with expert witness testimony

Ideally, an expert witness presents an unbiased, professional opinion. Because experts usually are compensated for their time, serving in the role can become a lucrative source of income for some professionals. The corrupting role money can play in shaping an expert’s opinion raises legitimate concerns about the reliability of testimony, especially if the witness serves the same role again and again for a given party. For example, a witness who gets paid by an insurance company to opine about the cause of appliance fires may be prone to questionable bias in favor of the insurer. Parties who oppose such witnesses need to be prepared to expose the expert’s bias through careful questioning and potentially by presenting counterbalancing testimony. In many cases two experts can legitimately disagree. A “battle of experts” can be the result, where the plaintiff’s expert supports one conclusion while the defendant’s expert expresses a different or even contradictory opinion. This is especially common in medical cases, where the science on a given topic is not well-settled. In cases like these the trier of fact can be faced with the difficult problem of needing to weigh the relative merits of each perspective.

GGRM is a Las Vegas personal injury law firm

For more than 45 years the attorneys at Greenman Goldberg Raby Martinez have represented personal injury clients in the Las Vegas area. Where helpful to our clients we work with expert witnesses to develop strong cases for our clients. If you have been injured call us today for a free attorney consultation at 702-388-4476 or reach us through our contact page.