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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.

Patient Advocates as Witnesses in Professional Negligence Lawsuits

People who are hospitalized with serious illnesses and injuries often can benefit from having an advocate—a family member, friend, or even a paid professional—who looks out for the patient’s interests. Advocate can help to improve patient care in a number of ways. They serve as intermediaries between hospital staff and the patient, helping to resolve confusion and answer questions that the patient may not be able to answer. They help the patient evaluate treatment options. And they keep an eye on how well the patient is being treated. If a patient is injured during a hospital stay the advocate may also become an important witness in any ensuing litigation against the hospital or its doctors for professional negligence (a.k.a. medical malpractice). An advocate need not have medical training to offer essential insights into events leading to the patient’s injury. This is especially true if the patient is not capable of testifying to the facts of the case, for example because the patient has severe dementia. For a patient advocate the focus of time in the hospital should naturally be on ensuring that the patient is getting the best care possible. Anticipating litigation isn’t the advocate’s job. But there are things advocates routinely do that can help attorneys should the need arise. Keeping good notes is a valuable step. Notes can record the treatment options that have been offered, diagnoses, medications, and so on. They can also include the names of the people involved in the patient’s care. Some of these details will be reflected in the hospital’s formal logs, but other details may slip through and only be available in the advocate’s notes. If litigation becomes necessary the advocate’s role as a witness likely will focus on the facts surrounding the patient’s care. The advocate who has served as the patient’s eyes, ears, and voice during the treatment process now serves, in a sense, as the patient’s memory.  Who made decisions, and when? How did staff respond to emergencies? What questions were asked? Having access to answers like these from a witness who is not tied to the hospital or other defendants can be extremely valuable in developing a case. An advocate isn’t going to be asked to give opinions about medical matters. A professional negligence claim often rests on failures by defendants to follow established protocols. The claims need to be backed up with affidavits and testimony from experts who are qualified to speak about the defendant’s specific field of practice. The advocate may be asked to help an expert witness analyze the case to determine if negligence has happened. For more than 45 years the law firm of Greenman Goldberg Raby Martinez has represented Las Vegas clients in personal injury cases. We are happy to answer your questions about potential professional negligence in a hospital setting. Call us today for a free attorney consultation at 702-388-4476 or reach us through 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.