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I Don’t Recall: Handling an Imperfect Memory in Litigation

The fallibility of memory has far-reaching influence on how the legal system works. It is one of the important justifications for statutes of limitation, which limit the amount of time someone has to file a lawsuit. It shapes rules governing how evidence is gathered and used. And it plays a significant role in shaping the burdens each party to litigation must bear as they work to establish the facts of the case.

Memory is almost always an issue in litigation. Oral testimony about events necessarily requires witnesses to remember events that happened months or even years before. Mistaken impressions can render a particular memory unreliable. For example, it’s easy to not see every detail of the roadway even in normal driving conditions, but someone who has been in an accident may be sure about important details that in fact were quite different than what memory retained: a light that she remembers being red was actually green, and so on. But intervening events can also shape memory. People telling their stories about events may embellish facts, and in time those embellishments could become part of the memory itself. People will also protect themselves from painful memories by unconsciously forgetting or changing details.

Everyone has a different aptitude for remembering things. At one end of the spectrum are people with the rare gift of remembering tiny details many years later. At the other end of the spectrum are people suffering from brain injury or disease, who might not be able to remember what happened to them just a short time earlier. Most people fall in the middle: they’re able to remember important facts, but they might not recall the small details that are critically important to the case. Because memory is so complicated and diverse, attorneys use a number of strategies to verify information, including these:

  • Giving witnesses access to records. If it’s helpful to a witness, lawyers can provide them with documents that are already in evidence, such as letters, notes, emails, and so on, to give them a reference that might help them remember important details. This process always requires care, because showing a witness a record can alter the witness’s memory. The adversarial context of litigation serves to limit the potential for distortion.
  • Finding corroborating evidence. If oral testimony raises inconsistencies it can be helpful to examine other sources of information to compare with what witnesses have said. As they say, a photograph is worth a thousand words.
  • Examining the witness. In some cases, especially those where the most important evidence is oral testimony, the witness may be asked many questions that are designed to test the witness’s overall reliability. Ultimately the power of oral testimony is determined by how reliable it appears to be. Attorneys may try to undermine the value of a given witness by demonstrating that the witness’s memory is highly faulty.

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 controversies. Our attorneys work with clients to determine how memory may play a role in their case, so that solutions can be found to potential challenges before they become problems. To learn how we can be of help in your case, call us today for a free attorney consultation. We can be reached at 702-388-4476 or send us a request through our site.

Understanding the Components of a Personal Injury Settlement

For a variety of reasons, few personal injury cases ever go to trial in front of a judge and jury. Instead, the parties in the dispute resolve their differences by negotiation. When the litigants settle their dispute, they avoid the big investment of time and financial resources that is required for a full trial. The time element is often crucial: injured plaintiffs need compensation from defendants to pay bills, and defendants often want to end the dispute to avoid piling up legal fees.

Settlement negotiations usually take place after lawsuits are filed

Settlement agreements arise from litigation, which means that the injured plaintiff typically has already filed a civil lawsuit against the defendant. By filing a lawsuit the plaintiff ensures that if the defendant refuses to come to terms, the option of going to trial always exists. Sometimes a lawsuit needs to be filed to ensure that the relevant statute of limitations doesn’t expire while negotiations are ongoing. Other times a lawsuit is necessary just to bring the defendant to the negotiating table.

One consequence of having litigation underway is that the court plays an important role as a kind of referee during the process. Courts strongly encourage cases to settle because it saves court resources for other, potentially more serious cases. But until a case settles the procedures of the court must be followed. Parties can still ask the court to require the other side to do certain things, such as disclose evidence.

The settlement agreement needs to protect the plaintiff’s interests

Negotiating a fair settlement is as much an art as a science. Settlements need to take into account many different components, including:

  • The facts of the events that caused the injury.
  • The expenses the plaintiff is facing as a consequence of the injury.
  • The defendant’s resources (insurance, cash and other liquid assets, anticipated income, and so on).

In a full trial issues like these get evaluated by the fact finder (the judge and/or jury). A settlement takes place without the benefit of this unbiased examination of facts. The parties need to come to grips with disagreements on their own. The calculation of damages is a good example of a subject that can involve difficult negotiation. Should the defendant agree to compensate the plaintiff for more than easily calculated costs, like prior medical bills? Or should the defendant also be put on the hook for less easily quantified amounts, like the plaintiff’s pain, anticipated future costs, and so forth?

The settlement agreement itself is a binding contract, which the court must approve before terminating the litigation. The agreement itself typically provides for a range of things, including:

  • The total amount of compensation the defendant agrees to pay, often itemized.
  • A payment schedule (especially common if the defendant will pay from his or her personal resources).
  • A release of the defendant from liabilities that aren’t otherwise covered.

Negotiating settlements is at the heart of the work personal injury attorneys do. Having experienced representation is essential to getting the most from a negotiation. The attorneys at Greenman Goldberg Raby Martinez have represented injured clients in the Las Vegas area for over 45 years. For a free attorney consultation about your case call us today at 702-388-4476 or send us a request on our contact page.

How Much Does Expert Testimony Cost in Personal Injury Cases?

In civil litigation expert witnesses can be an essential source of information for litigants, judges, and juries. The role of an expert witness is to “assist the trier of fact to understand the evidence or determine a fact in issue.” Common examples that come up in personal injury cases include testimony from an engineer about the design of a defective product, from a physician about a complex medical condition, or from an accountant about complicated damages questions. To qualify as an expert a person must have specialized training and expertise, and as such they typically charge a high price for their services.

Just how much an expert witness may “cost” will depend on the individual expert and how much work they must do in support of the litigation. The Expert Institute (a witness clearing house) offers a “calculator” tool that presents national averages and, sometimes, state-specific information about how much experts in different fields typically demand. Their approach divides fees into three components: the initial review fee, the deposition fee, and the court fee. This can be a helpful way to examine how costs work:

  • Initial reviews. For an expert witness’s testimony to hold up under adversarial scrutiny it needs to be based on a rigorous analysis using well-established, objective standards. The initial review phase of an expert witness engagement typically involves providing the witness with information about the case and answering questions to help them assess the facts. At this phase a witness may reach a conclusion that isn’t helpful to the case—after all, the expert is there to provide a neutral opinion, even though a party to the litigation is paying for his or her services with a particular goal in mind. The complexity of an initial review can be very high in cases where the expert needs to conduct research or physical exams.
  • Depositions. Expert witnesses don’t necessarily need to testify in person in a courtroom. A deposition is essentially a formal pretrial questions-and-answers session where the witness responds to questions (interrogatories) by attorneys for both sides in the litigation. Preparing for a deposition can require the witness to prepare exhibits, compile references, and so forth. Depositions can be as short as a couple hours to as long as several days, depending on the complexity of the case and the topics at issue.
  • Court fee. Few personal injury cases actually go to trial, so it’s unlikely that an expert witness will need to personally appear in court. Still, when they do experts are entitled to charge a higher than normal fee.

According to the Expert Institute, the range of hourly fees varies dramatically according to the type of expert. Hourly rates range from about $190 for an initial review by a nursing expert to over $1,000 for medical specialists. Cases that involve really complex medical issues often generate high expert fees.

For plaintiffs the important thing to remember is that personal injury attorneys will include the fees they expect to pay expert witnesses into their assessments of the case. When a plaintiff prevails in a case (whether in settlement or at trial) the witnesses will be compensated by the law firm from the compensation award. A plaintiff facing a case that will require expert testimony needs to ask their attorney early on how witnesses will be paid. Attorneys can structure engagements in a number of ways. Clients may be required to pay expenses, which often includes witness fees, if the litigation doesn’t go well or the client decides to drop the suit.

For more than 45 years the law firm of Greenman Goldberg Raby Martinez has represented clients in personal injury cases. Our experience helps us evaluate the need for expert testimony so we can give clients a fair assessment of the potential costs and final recovery they should expect. To receive a free attorney consultation about your case, call us at 702-388-4476, or ask us to call you through our contact page.

Preparing for a Deposition in Your Personal Injury Trial

Depositions are often a critically important part of discovery, the fact-gathering phase of litigation. In a deposition, attorneys representing the parties in the dispute ask a witness a series of questions that are intended to help the attorneys gather information that may be important to the case. Witnesses answer questions under oath, meaning they face possible legal consequences for lying or misleading their questioners. A court reporter keeps a transcript of the deposition, which may also be videotaped in some situations. In some circumstances a witness may be assisted by an attorney, but as a rule a witness in a deposition is expected to prove accurate answers to all the questions that are asked.

For someone who is directly involved in a legal dispute over a personal injury, a deposition may sound like a kind of interrogation. Television and film like to ratchet up the drama with scenes of aggressive attorneys badgering witnesses into emotional outbursts. In reality a deposition needn’t be a stressful event. Although a witness is expected to answer every question that is asked, the witness’s attorney can enter objections on the record and can even ask that the deposition be stopped if the witness is being unfairly attacked.

Another important part of an attorney’s job is to prepare clients for depositions. There are a number of things that a witness can do to prepare for a deposition:

  • Get clear about the important facts. To be clear, a witness’s preparation for a deposition is not about crafting a good story. It’s about making sure that the witness has a clear memory of the things that are likely to come up, so the answers given at the deposition are as accurate as possible. This includes knowing what one doesn’t know, and what one is unsure about.
  • Practice answering questions. It can be helpful to have a friendly attorney roleplay the deposition. Not only does this help the witness think about how to answer difficult questions, it also makes the deposition itself feel more familiar and less stressful.
  • Think about body language and vocal inflection. An attorney who is experienced with depositions will be looking for clues not just in what the witness says, but also in how the witness behaves. There’s nothing to gain by being argumentative, rude, or angry during a deposition. The witness should think about steps that could help relieve tension, such as taking a breath, sipping water, or other simple tactics.
  • Get clear about procedure. During a deposition, attorneys will banter about technicalities, raise objections, and make comments to the court reporter. It can be helpful to a witness to know how this back-and-forth may affect them. Simply put, most of it can be ignored. At a minimum, witnesses should be prepared to answer questions even if their attorney objects to it. It can also be helpful for a witness to know how to go about asking for a break.

The law firm of Greenman Goldberg Raby Martinez has represented clients in personal injury cases for over 45 years. Our team is devoted to providing personal, thoughtful attention to each client. We have extensive experience with helping clients prepare for their depositions. We can be reached at 702-388-4476 or through our contacts 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.

The Role of Depositions in Personal Injury Cases

Oral testimony often forms a central part of a legal case. For many people outside the legal profession “oral testimony” often conjures images out of courtroom dramas, with a witness nervously breaking down under an attorney’s barrage of questions. The reality is usually quite different. Most personal injury cases settle without going to trial, so courtroom exchanges never happen. Instead, lawyers talk to witnesses in pre-trial processes called depositions.

What is a deposition?

Depositions are part of the broader pre-trial discovery process, during which the parties to the dispute gather facts from each other about the events that led to the controversy. In a personal injury case, discovery often involves a mix of documents (for example, medical records or accident reports) and answers to questions that attorneys pose to witnesses. Such questions can be put before a witness in writing, in so-called interrogatories, or they can be asked in person, during a deposition.

Depositions can be thought of as formal interviews. Attorneys from both sides in a dispute are present and may ask the witness questions. The witness may also be represented by an attorney. The answers given in a deposition are under oath and can be used as evidence at trial. A deposition is typically held in an attorney’s office with a courtroom reporter present to take down a transcript of everything that is said.

The witness’s role in a deposition

The purpose of a deposition is to help the two sides in a dispute clarify what a witness knows about the case. If the case goes to trial, the deposition will have given both sides a better idea of what to expect if the witness is called to testify in court. In practice, personal injury cases rarely go to trial. Instead, they will settle out of court, quite often with the attorneys for both parties negotiating a settlement in light of the facts that are brought forward during the discovery process.

The specific nature of a deposition often depends on the kind of witness that is involved. Depositions of the people directly involved in an incident may delve into a wide range of matters as opposing attorneys seek clarity on facts and probe for weaknesses. For example, in a car accident case one can expect the driver who was allegedly responsible for the crash to be asked about drug and alcohol use prior to the accident. Other potential witnesses may include people who saw the incident, people who can attest to the nature of the plaintiff’s injuries (friends, family, and medical professionals), and expert witnesses who provide insights into technical matters that are germane to the case.

Questions posed during a deposition can be far-ranging. Although attorneys often raise objections during depositions, the witness usually is obligated to answer questions as truthfully as possible even if the question would not be allowed in court. That is because the rules governing depositions are not as strict as the rules of evidence that apply in the courtroom. Witnesses are often represented by attorneys during depositions to protect the witness from questions that stray too far from relevance.

Talk to a Las Vegas personal injury attorney about your case

For more than 45 years the law firm of Greenman Goldberg Raby Martinez has represented clients in personal injury cases. We give each case the personal attention it deserves. Protecting our clients’ interests is paramount to our practice, and that includes helping them get ready for depositions. For a free attorney consultation call us today at 702-388-4476 or ask us to reach out to you through our contact page.

Handling Embarrassing and Damaging Facts in Litigation

People who have suffered personal injury or other harms sometimes are reluctant to pursue legal action because they are reluctant to reveal embarrassing or incriminating details about themselves in a court setting. The facts of the incident leading to an injury may include damaging information about the injured plaintiff, such as drug use, extramarital affairs, or behavior that is prohibited by an employer. A significant part of an attorney’s job is to understand how these concerns may play a role in a case’s strategy and help the client evaluate when and where such concerns should be allowed to take precedence over other tactical concerns.

One thing every potential plaintiff should bear in mind is that very few civil disputes ever go to trial. Most often, private disputes such as personal injury cases get resolved through settlement negotiations. Although such cases still involve filing court documents that can contain damaging facts about the plaintiff, they may avoid the biggest fear many plaintiffs have, of having to air their dirty laundry in a public setting, before a jury.

Broadly speaking, whether a “bad fact” can be avoided in litigation will depend on its importance. Some kinds of information simply can’t be “hidden” during a legal proceeding, because they are vital to the core issues in a case. Such facts can form a key part of the defense, or they may be an unavoidable part of the story the plaintiff must tell to not be accused of dishonesty. For example, if the plaintiff was drunk while crossing against a red light, it’s unlikely that the drunkenness won’t come up, even if the defendant was speeding and texting at the time his car hit the plaintiff. The fact that the plaintiff was drinking may not be particularly damaging, or it may present serious issues (for example, if the plaintiff is an emergency medical technician and was on call at the time of the accident).

Other information may have some marginal value to a plaintiff’s case, but its potentially damaging effects to the plaintiff’s personal or professional life outweigh the benefits of introducing it. Whether such information can be kept out of the legal process will depend on whether the adverse party knows about it, and whether it is relevant to a legitimate discovery request. In some situations both parties may want to keep bad facts hidden. The case of the extramarital affair offers a simple example. If the cheating couple was meeting for a liaison when one of them accidentally struck the other with a car, the purpose of their getting together might be best left off the table.

The adversarial nature of litigation means that the other side of the case will always want to find the most damaging information it can to help build its case. In theory an attorney has an ethical obligation to not blackmail the other side into agreeing to a low settlement offer, but not every lawyer is ethical. It’s important for clients to clearly explain to their attorney all of their concerns about the case before it gets started, so the attorney can set expectations about what matters can be kept private and what disclosures might be unavoidable.

For over 45 years the law firm of Greenman Goldberg Raby Martinez has represented Las Vegas clients in personal injury, workers’ compensation, and auto accident cases. We help clients sort out the pros and cons of different strategies, taking into account all aspects of each client’s individual needs and concerns. Call us today for a free, confidential attorney consultation. We can be reached at 702-388-4476 or send us a request through our site.

Attacking a Defendant’s Character in Personal Injury Cases

In personal injury lawsuits the defendant’s character can sometimes become an important piece of a plaintiff’s case. The defendant’s character could involve his or her propensity to tell the truth, behave lawfully, act violently, and so on. But character evidence isn’t always relevant to the core issue of a personal liability case: whether or not the defendant is legally responsible for compensating the plaintiff for costs related to the injury. Understanding when a defendant’s character can be used at trial requires consideration of Nevada’s evidence rules.

Nevada law limits when and how character evidence can be used in civil trials. Under NRS Chapter 48, a number of things must be true about character evidence before it can be used:

  • It must be relevant. In legal terms relevance means that the character evidence makes a fact of consequence in the case more or less probable than would otherwise be the case. For other kinds of evidence the question of relevance may be straightforward. For example, in a drunk driving case the individual’s blood alcohol content near the time of the accident is clearly relevant. But character isn’t always a direct issue in a case. The defendant’s character may come into play if there are questions about his or her honesty or other traits.
  • It must not be unfairly prejudicial. The character evidence’s informational value should not be substantially outweighed by the likelihood that the trier of fact (a judge or jury) will be swayed against the defendant for reasons that have nothing to do with the facts of the case. For example, if the defendant was convicted of a serious drug offense (say, selling cocaine to minors) 30 years ago but the current case involves a car accident with no connection to drug use or sales, the fact of the old conviction may not just be irrelevant, it may also be unfairly prejudicial.
  • It cannot be offered solely to prove that the defendant acted in a certain way. In a sense, this rule is another way of getting at the rules of relevance and fairness. Proving that someone has a general habit of drinking too much can’t be used to prove that the person was drunk on a specific occasion. Showing that a person has a history of domestic violence does not prove that he or she is still committing violent acts. But if the defendant tries to argue that he doesn’t drink, or that she wouldn’t hurt a fly, these character elements can become important. Note that the defendant may need to open the door for the plaintiff to use this sort of evidence. A smart attorney will avoid making this kind of rudimentary mistake.

Provided that character evidence is relevant, fair, and appropriate, it also must be offered in a reliable way. Witness testimony is probably the most important source of character evidence, but other pieces of evidence can help establish character. Social media can be a rich source of character evidence, because people often use it without considering how it might later be used against them in a court setting.

The law firm of Greenman Goldberg Raby Martinez has helped injured clients in the Las Vegas area recover compensation for over 45 years. If you have questions about your personal injury case, call us today for a free attorney consultation at 702-388-4476 or send us a request on our contact page.

The Role of Personal History in Injury Cases

The backgrounds of the people involved in personal injury litigation can sometimes play a significant role in the case’s outcome. To guard against undue prejudice, courts typically won’t allow evidence or testimony about a party’s background unless it has some relevance to the case. But attorneys can find ways to make seemingly unrelated matters suddenly relevant again. For example, a decade-old conviction for fraud may not be relevant to whether a driver was responsible for a car accident, but it might be important for attacking the driver’s honesty if that is at issue. Here are a few examples of how personal history can play a role in a case.

  • Limiting the scope of potential damages. A longstanding principle in civil litigation is that the defendant “takes the plaintiff as-is.” This so-called “eggshell skull rule” generally means that the defendant is responsible for compensating the plaintiff for the full scope of the injuries for which the defendant is responsible, even if the nature of the injuries are significantly worse as a consequence of an existing infirmity in the plaintiff. At the same time, defendants are not responsible for compensating plaintiffs for injuries that already existed at the time of the accident. If the plaintiff was already dealing with a serious injury, the defendant likely will not be held responsible for the costs associated with that injury.
  • Supporting or undermining arguments. A party’s personal history can raise doubts about the merits of arguments that are not adequately supported by concrete evidence. It can also help to fill in gaps in evidence to strengthen an argument. For example, a driver who left a bar and got into an accident might argue that she “hardly drinks and never drives drunk.” The plaintiff might use the plaintiff’s history of DUI convictions, reputation for alcohol abuse, or confirmed habit of drinking and driving to show that the defendant isn’t telling the truth.
  • Creating or losing sympathy. Events in a person’s past can have effects on a case that are hard to quantify. Courts are often reluctant to allow evidence that serves little purpose other than to turn a jury’s opinion about a person, but as in the example of the fraud conviction, such evidence can be relevant for important reasons and have consequences beyond the narrow purpose for which it was introduced.

For more than 45 years the law firm of Greenman Goldberg Raby Martinez has represented clients in personal injury cases. Our team understands how to help clients get the most out of the facts of their case, and how to address potential problems that may be lurking in a client’s past. For a free attorney consultation about your case call us today at 702-388-4476 or send us a request through our site.