Archive for February, 2011
February 23, 2011
We are pleased and honored to announce that our law firm was once again voted Best Attorney in Delray Beach for the year 2010 by the Forum Publishing Group. This is now that 4th year in a row that we have been honored with this award.
Ever since we started our law firm in 1999 we have made it a goal to provide personal attention and service to our clients. We feel that being given this honor now for the 4th year in a row our efforts have been rewarded. We truly enjoy being an integral part of the Delray Beach community and look forward to many more years of providing legal services to the people of Delray Beach.
We are pleased and honored to announce that our law firm was voted 2008 Best Attorney in Delray Beach by the Forum Publishing Group. This is the second year in a row that we have been honored with this award.
We remain committed to providing our community with legal services and continue in our efforts to work as hard as we can and provide you with personal attention in every aspect of your case.
This is truly an honor to be bestowed with this award for a second year in a row. We appreciate the support we receive throughout our Delray Beach community.
MSNBC.com
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Class-Action Suit Filed Against Fannie Mae
WPBF-TV
updated 8:32 p.m. ET, Thurs., Sept. 11, 2008
DELRAY BEACH, Fla. – A Delray Beach law firm Thursday announced the filing of a class-action lawsuit on behalf of Florida purchasers of Fannie Mae stock. The Law Offices of Aronberg & Aronberg said the complaint names Fannie Mae’s entire board and several of its former officers as defendants.
The complaint alleges the board violated the Securities Exchange Act of 1934 and the Florida Deceptive Trade Practices Act by making false statements, failing to disclose adverse conditions of the company, causing stock purchasers to be deceived about the value of the company, and artificially inflating the price of the stock.
The lawsuit comes after the federal government took control of government-sponsored enterprises Fannie Mae and Freddie Mac.
The lawsuit alleges the board issued false positive statements about the company, artificially inflating its stock. Fannie Mae’s stock dropped this week to below $1 per share.
A statement by Aronberg & Aronberg said the lawsuit was filed to ensure that “the thousands of past and current Florida stockholders of Fannie Mae are not swallowing millions of dollars in losses while the board members walk away with millions of dollars in compensation packages.”
FLORIDA CLASS ACTION FILED AGAINST SMITH BARNEY FOR IMPROPERLY RECOMMENDING FANNIE MAE AND FREDDIE MAC
The Law Offices of Aronberg & Aronberg announces that it has filed a class action lawsuit in Palm Beach County, Florida on September 15, 2008, on behalf of all Florida customers of Citigroup/Smith Barney brokerage who were improperly placed into Fannie Mae and Freddie Mac stock in 2008.
We believe Smith Barney placed thousands of its customers into Fannie/Freddie stock this past Spring and even into the Summer months of 2008 when Smith Barney should have realized that Fannie/Freddie was on the verge of collapse. Smith Barney, a holder of millions of shares of Fannie and Freddie, misrepresented the true risks associated with Fannie and Freddie stocks. We have seen numerous complaints that Smith Barney stock brokers told customers that the risks of Fannie/Freddie were minimal/non-existent and that they were both “safe” and “secure” investments. We have also seen that many of the victims of this debacle were elderly income required customers. In one case, the Florida investor was told by a Smith Barney broker that Fannie was “no risk at all”. One month after that same investor bought Fannie on advice of her Smith Barney broker, the same broker told her to buy more.
Smith Barney customers were also misinformed that, in the unlikely event Fannie or Freddie went under, the government would step in and protect their investments. While this may be true with bond holders, this obviously was not the case with purchasers of Fannie/Freddie stock.
These types of misrepresentations are clearly violations of Florida’s Unfair and Deceptive Trade Practices Act which prevents unfair or deceptive acts or practices in conducting of any trade or commerce.
The Class Action does not name any individual brokers or advisors as defendants. Instead, our only defendant is Citigroup/Smith Barney for making unsuitable investment recommendations and misrepresentations.
It is again our intention to see to it that the thousands of Florida Citigroup/Smith Barney customers who were recommended and misled into buying Fannie/Freddie stock are reimbursed for their losses by the company who led and recommended that they buy these unsafe investments.
The Law Offices of Aronberg & Aronberg is active in litigation pending both in federal and state courts. You may visit our web site at www.aronberglaw.com for information or contact:
David T. Aronberg, Esq.
2160 West Atlantic Avenue
Delray Beach, Florida 33445
Local: 561-266-9191
Toll Free: 1-877-795-2993
e-mail: daronberg@aronberglaw.com
John Pacenti
07-10-2008
Denise Bennett, like many Americans during the boom times of the housing market, decided to refinance her home.
She wanted to go from an adjustable rate mortgage to a 30-year fixed loan to pull some equity out of the West Park, Fla., home she inherited from her parents so she could pay off credit card debt.
A few months ago, she was advising a friend how to refinance without getting ripped off. That’s when the fine print caught her eye: She wasn’t in a 7.6 percent fixed-rate mortgage at all. Instead, her monthly mortgage was scheduled to adjust in November from $1,400 to $1,700.
“I was trying to show her the pros and cons, and I ended up being a conned,” Bennett said. “I really felt the fool then.”
Confined to a wheelchair, she already is struggling to make her monthly payments. So instead of waiting for the sword of Damocles to fall in the form of foreclosure, Bennett is fighting back.
She sued her lender, Countrywide Home Loans, on June 26 alleging fraud in a case assigned to U.S. District Judge William Zloch in Fort Lauderdale.
Bennett is a plaintiff in one of several suits filed against the troubled lender by the Affirmative Defense Group in Margate, Fla. Her attorney, Frank Ingrassia, said he has filed about 70 such suits against a variety of lenders.
“It’s an industrywide problem,” Ingrassia said. “Some of the clients tried to do workouts and weren’t able to do that, and when you are faced with foreclosure it’s an issue of striking first or not.”
He said the litigation is a “new approach for dealing with unprecedented levels of foreclosures.”
Nearly all of the lawsuits involve adjustable rate subprime mortgages to high-risk customers. Ingrassia said some of his clients were offered “teaser rates” as low as 1.5 percent that adjusted up within 30 days.
The lawsuits also allege Calabasas, Calif.-based Countrywide and the other lenders falsified paperwork that exaggerated the income of the customers to qualify for the loan.
The Center for Responsible Lending in Durham, N.C., said on its Web site that Countrywide’s aggressive subprime lending has made it “synonymous with the mortgage meltdown as its customers face rising defaults and foreclosures, in large part because of the company’s lending practices.”
Countrywide was purchased by Charlotte, N.C.-based Bank of America last week in a $4 billion stock deal. Spokeswoman Shirley Norton said the bank had no comment on pending litigation against Countrywide.
Martin Eakes, CEO of the nonprofit Center for Responsible Lending, has said Bank of America might be the cure for Countrywide’s systemic illness. “Bank of America has the resources and the will to begin cleaning up the subprime mess that Countrywide has played such a large role in creating,” Eakes said.
Ingrassia’s lawsuits seek rescission of his client’s mortgages plus damages including the reimbursement of all mortgage payments, finance charges, interest, attorney fees and costs.
The litigation alleges the lender violated Florida’s Deceptive and Unfair Trade Practices Act and the federal Truth in Lending and Real Estate Settlement Procedures acts.
The lawsuits were filed as state regulators ganged up on Countrywide. Florida Attorney General Bill McCollum sued the mortgage lender in Broward County last week for alleged predatory lending practices. California and Illinois also have filed lawsuits.
“It’s nice to know governmental authorities are thinking along the same lines,” Ingrassia said.
McCollum’s complaint alleges many of the same things cited in Bennett’s suit: Countrywide told customers interest rates were fixed when they were adjustable, misrepresented the length of teaser rates and long-term higher rates.
“It is unthinkable that a company would try to take advantage of someone’s dream of homeownership,” McCollum said in a statement. “Florida homeowners who are trying to protect their homes from foreclosures shouldn’t have to worry about their mortgage brokers or lenders unfairly profiting at their expense.”
Bennett said she called Countrywide to complain she didn’t receive a fixed-rate mortgage, and the loan officer told her she should be happy she “got two out of three,” referring to a lower rate and cash back.
“They just wanted to make their bonus and do whatever it takes to get it,” Bennett said. “I could have easily shopped around and got a 30-year fixed mortgage. They didn’t give me all the information.”
Ingrassia said many mortgage applicants didn’t notice they were being sold an ARM until they were hit with a sheaf of paperwork at the closing.
Some noticed but were faced with losing the deal if they didn’t sign on the spot.
“Most people have movers lined up and are ready to make a move. It’s psychological coercion,” Ingrassia said. “They tell them, ‘Don’t worry about it. You will refinance when the property goes up in value.’ But keep in mind many of these mortgages had pre-payment penalties.”
And, of course, the appreciation stopped and values plummeted.
Ingrassia said some of the problems could have been avoided if customers hired a lawyer for their closings.
Bennett, like many others these days, just worries about paying her bills in a down economy.
“I’m behind on many of my bills,” she said. “I’ve been neglecting them trying to make my mortgage.”
By M.P. MCQUEEN
July 1, 2008
Scientists say the jury is still out on whether rising sea temperatures will cause more hurricanes to hit U.S. coastlines. Yet some insurance companies are boosting premiums based on assumptions that they will. Others are withdrawing from coastal communities altogether.
Last year, Leanne Lord of Marion, Mass., decided to put her house up for sale after her insurance premiums more than doubled to about $2,892 a year since 2005. Many of her Cape Cod neighbors, who hadn’t seen a hurricane in the area since 1991, followed suit. Today, there’s a glut of houses on the local market.
“A lot of people can’t afford to live here anymore, between the insurance and the taxes having gone up so much,” says Ms. Lord, a 52-year-old public-health nurse. “They have been forced to leave and I think that is really sad.”
Costs for homeowner insurance along the East and Gulf coasts have risen 20% to 100% since 2004, says the Insurance Information Institute, a trade group. In the three years through 2006, says the institute, property and casualty insurers registered record profits, topping out at $65.8 billion in 2006. (Despite severe U.S. weather that has caused about $8.9 billion in insured property losses to date this year, it’s too early to forecast 2008 profits.)
Helping to drive these developments is a little-known tool of the insurance world: Computerized catastrophe modeling. Crafted by several independent firms and used by most insurers, so-called cat models rely on complex data to estimate probable losses from hurricanes.
But regulators and other critics contend that the latest cat models — which include assumptions about various climate changes — are triggering higher insurance rates.
The original purpose of cat models was to help stabilize the insurance market and ensure affordable coverage in risky areas. To do this, the first versions used historical weather data to project long-term future losses.
In the wake of the punishing 2004 and 2005 hurricane seasons, many cat models saw drastic revisions. Rather than take a traditional long term view, some attempted to estimate what might happen in the next several years. Modelers also factored in dramatically higher rebuilding costs when a large area is hit. The result: big premium hikes and higher deductibles.
Underlying the newer cat models are scientific theories that rising sea temperatures will result in more intense, and possibly more frequent, hurricanes. The hypotheses suggest that catastrophic hurricanes like 2005′s Rita, Wilma and Katrina weren’t an aberration, but rather the shape of things to come.
“Losses from hurricanes and tropical storms have risen along with sea temperatures,” says Eberhard Faust, a climate scientist at Munich Re. “This is [the assumption] from where all the modelers start.”
Perhaps the most prominent critic to surface is Karen Clark, an economist who founded one of the first cat-modeling firms two decades ago. Today, she warns about the programs’ misapplication.
After Katrina, she attended insurance-company meetings to discuss “what went wrong” and concluded that there were more problems with how insurers were using the models than with the models themselves.
Companies that rely too heavily on cat-model data “are subjecting their businesses and their customers to the volatility of computer models,” says Ms. Clark, who now runs a Boston cat-model consulting business. “The models are being used as if they produce definitive answers rather than uncertain estimates.” Ms. Clark says she advises clients to use them in conjunction with other factors, such as broad historical data.
Insurance companies say their cat models are generally reliable and credit them with sharply reducing the number of carriers that have failed following major disasters in recent years.
Accurate Information
To construct a hurricane model, programmers factor in a century or more of meteorological data, along with information from insurers such as the replacement value of buildings. The programs can simulate thousands of hypothetical hurricanes and estimate the maximum property losses for each depending on its path.
The modeling concerns say they do their best to make sure their programs are based on sound science and methodology. They also emphasize that in order for their cat models to work, insurers must provide accurate information on the properties they cover.
“They are complicated and rely on the quality of the information that you put in,” says Tom Larsen, senior vice president of EQECAT. Incomplete or inaccurate data about property or weather, he notes, can affect results.
State insurance regulators and consumer groups are beginning to push back, saying that some insurers are relying too heavily on their use of cat models. Such critics note that the industry managed to realize huge profits in recent years — despite record damages from back-to-back hurricanes in 2004 and 2005. (The Insurance Information Institute, the industry’s trade group, says profitable years help offset bad spells when claims can exceed premiums. That happened in 2001, when insurers lost $7 billion.)
In May, Massachusetts officials denied a 25% rate increase that had been sought by the state-administered FAIR plan, its insurer of last resort. The request was “based in large part on a hurricane model that is not calibrated for Massachusetts weather patterns,” state Attorney General Martha Coakley said in a statement. It “predicts the type of storms that have never made landfall in Massachusetts.”
Jack Golembeski, president of the FAIR plan, said it is reviewing the state’s decision to deny a rate increase and would resubmit a new request at another date.
The newer models have caused other skirmishes. Industry officials note that some models now attempt to estimate future losses over a shorter period of time. In doing so, they may also use selective historical data. One model, for example, was reprogrammed to give greater weight to years in which ocean temperatures were particularly warm and hurricane rates were high, such as the period from 1930 to 1945. That particular model resulted in higher loss estimates for the near-term.
Last fall, Florida rejected Allstate’s request for a 43% rate increase. In the process of investigating the proposed rate hike, officials learned that Allstate’s cat model didn’t comply with the state’s rules against using a short-term model.
“They were using five-year projections [in their cat modeling] even though they had not been approved, and our concern was that it was because it generates a higher loss cost,” said Kevin McCarty, the state’s insurance commissioner.
Denied Coverage
The impact from cat models on homeowners along the East and Gulf coasts has stirred some of the greatest controversy. In New Jersey, State Farm Mutual Insurance Co. and a subsidiary of Allstate Corp. have declined to renew at least 12,000 customers with homes near the ocean. In Mississippi, several insurers, including Nationwide Mutual Insurance Co., have stopped covering wind damage in six counties along the Gulf. Some homeowners in the region got a 90% premium increase in 2006. And in Florida, State Farm, the largest private insurer there, said recently it would no longer write new homeowner policies and planned to drop 50,000 existing ones.
Florida has maintained its own cat model since 2005. The state-run program takes a long-term view of hurricane activity in projecting future losses. When large discrepancies arise between the public model and those submitted by insurers, it triggers further inquiry. South Carolina has employed the services of the Florida public model to analyze its own insurers’ rate requests.
Attorneys Predict Hardship From Hikes in Fla. Court Fees
Bud Newman
07-01-2008
“Justice is going to be very expensive.”
That is how David Mankin, supervising attorney in the housing unit of Broward Legal Services in Plantation, Fla., describes the impact — particularly on the poor — of legislatively mandated increases in 144 court fees taking effect statewide today. Even the fee to apply for indigent status, which lets poor litigants pay other court costs in installments rather than all at once, goes up by 20 percent from $40 to $50.
Seeking justice through the court system “wasn’t free before, but it was obtainable” for low-income people, Mankin said. The increases may change that, he said.
“These are pretty significant increases in the costs to get into the courthouse,” he said. “It’s really a hardship on the tenants” who sue landlords to get them to address problems such as broken air conditioning.
West Palm Beach, Fla., solo practitioner Dennis Koehler, a former county commissioner, said the new and higher fees also will hit hard at people who want to file their own cases instead of using a lawyer. “It’s going to hit the pocketbooks of the folks who file pro se,” he said. “It’s the little guy that’s going to be hurt.”
Ross Baer, the supervising family law attorney at the Palm Beach County Legal Aid Society, said he is bothered by the increase in the cost of filing for divorce and a new fee to file a counterpetition. Divorce petitions cost $409, up 12 percent from $364, and the new fee for a counterpetition in a divorce case is $295.
“My clients couldn’t afford the $364; the $409 is really difficult,” he said. “It’s going to cost $295 when it used to cost nothing. The impact on people who don’t have money in today’s economy obviously is not good.”
But the state also is claiming poverty. Budget cuts produced 34 courthouse layoffs also effective today in South Florida, and more vacant positions were eliminated.
Baer acknowledged “it’s probably fair to have a user fee” to help cover the cost of providing court services, but he said, “I don’t think it’s fair to have a user fee for people who can’t afford it.”
Palm Beach County Clerk of the Court Sharon Bock said in an interview that the new and higher fees are designed to raise $121 million statewide. She did not know how much would be raised locally. The entire amount will go into the state’s general revenue pool, she said, but only $75 million, or 61 percent of the new collections, will be earmarked for courts, prosecutors and public defenders. Even though she operates a fee-based office, Bock said none of the new fees will reach her. She said the state Legislature decided which fees would go up and by how much, and her office had nothing to do with the decisions, even though her office is the collection point.
Bock said she shares the concerns of attorneys representing the poor about the issue of access to courts.
“All of us are very concerned about access to the courts for the poor,” she said. “We’re going to be watching it extremely closely.”
The Legislature hiked the fees to avoid even deeper funding cuts and minimize the number of layoffs. The largest increase in terms of dollars and percentage is for tenant eviction. The old fee of $80 has more than tripled to $270. On the other end of the scale, some fees are rising only 50 cents or $1. Nearly 30 current fees, such as the $93.50 to apply for a marriage license, did not change.
The fee to file a case in circuit court has increased 18 percent to $301 from $256.
Mankin noted “these are lean, mean times” economically, and expressed the hope that “once the economy flips around, they might even consider reducing fees.”
Hoop Schemes: Disgraced NBA Ref Says the League Wants $1 Million, Fixed Games
Brian Baxter
The American Lawyer
June 12, 2008
Did Wachtell, Lipton, Rosen & Katz bill $1 million worth of hours on an internal National Basketball Association investigation that the firm has yet to make public? That’s what a letter filed in federal district court Tuesday by the lawyer for former league referee Timothy Donaghy suggests.
The league probably didn’t think that Donaghy would be the biggest story to emerge during the NBA Finals. The 13-year NBA referee resigned in July 2007 after being caught up in an FBI sting into gambling and organized crime resulting in his arrest. Soon after, Donaghy began cooperating with federal prosecutors. In August 2007, he pled guilty to two felony fraud charges. He revealed that he had gambled thousands of dollars on games he refereed in order to influence their outcome and pay down his debts.
After Donaghy’s guilty plea, NBA Commissioner David Stern, a former Proskauer Rose partner, hired Wachtell Lipton litigator Lawrence Pedowitz to conduct an internal investigation of the league’s gambling policies and its referees.
Little more was heard about the investigation until Tuesday when Donaghy’s lawyer, John Lauro of Lauro Law Firm in Tampa, Fla., filed two letters with U.S. District Court Judge Carol Amon. Donaghy is scheduled for sentencing on July in Amon’s court.
The first letter relates to Donaghy’s cooperation and includes explosive claims Donaghy allegedly relayed to federal investigators about the NBA purportedly rigging the outcomes of playoff games by manipulating referees. The second letter requests that the NBA release the results of the internal Wachtell-led investigation. Both documents portray the disgraced former referee as a dutiful government cooperator and the victim of a restitution request by the league “that appears to be a transparent effort to intimidate [him].”
The results of Pedowitz’s investigation are not yet public, and the former federal prosecutor did not immediately respond to a request for comment. But Lauro’s letter to Judge Amon says that the league notified him June 5 that it was seeking “$1 million (to the penny)” in restitution from Donaghy for a “purported ‘internal investigation’ conducted by outside counsel.”
Sources who requested anonymity tell The Am Law Daily that the $1 million might not be for fees stemming from Wachtell’s representation alone; the figure might also include attorney fees for several other referees involved in the NBA’s investigation. The sources say the league might be seeking to recoup those costs as well. By asking for compensation over a report that remains under wraps, Lauro, a former federal prosecutor himself, is attempting to justify the league’s bill. A subpoena attached to the second letter requests the NBA turn over the results of its internal investigation.
But it was the first letter, with its claims that “league officials would tell referees that they should withhold calling technical fouls on certain star players because doing so hurt ticket sales and television ratings,” which proved most scandalous.
League officials have responded acerbically to previous assertions by Donaghy, with one telling The New York Times in May that Donaghy’s “unfounded allegations” were the “desperate act of a convicted felon.” But the league’s reaction Tuesday was more muted, with NBA general counsel Richard Buchanan, a Covington & Burling alum, saying in a statement that “the only criminal activity uncovered is Mr. Donaghy’s.”
Representing the government are Assistant U.S. Attorneys Jeffrey Goldberg and John Buretta. According to his plea agreement, Donaghy must pay a $500,000 fine and $30,000 restitution to the government. Lauro is seeking probation for Donaghy, who could face up to 25 years in prison.
By John Yaukey and Robert Benincasa, Gannett News Service
WASHINGTON — Death rates from motorcycle crashes have risen steadily since states began weakening helmet laws about a decade ago, according to a Gannett News Service analysis of federal accident reports.
As deaths have increased, so has the proportion of older riders killed. Dying on a motorcycle could soon become a predominantly middle-aged phenomenon, the analysis shows.
Most states once required all motorcycle riders to wear helmets. A trend in the other direction began accelerating after 1995, during the same period the federal government decided to stop withholding highway money from states without helmet laws.
As states weakened or repealed the laws, the percentage of riders who wore helmets began dropping. And fatality rates increased.
In 1996, 5.6 motorcyclists were killed for every 10,000 registered motorcycles, according to Department of Transportation (DOT) statistics. By 2006, the most recent data available, the rate had risen to 7.3, the analysis shows.
In raw numbers, the annual death toll rose from 2,160 to 4,810 over that same period.
Meanwhile, fatality rates for all other passenger vehicles have been falling, DOT officials say.
“The data are pretty compelling,” said Transportation Secretary Mary Peters, herself an avid motorcyclist who survived a crash thanks to a helmet she displays in somewhat battered condition in her office. “It’s discouraging to see the (fatality) numbers going up. But at least people are talking about it now.”
Two decades ago, 47 states required helmets for all riders. Today, 20 do. Twenty-seven states require helmets only for younger riders. Three — Illinois, Iowa and New Hampshire — don’t require helmets at all.
The analysis of data from the government’s Fatality Analysis Reporting System of motorcycle deaths between 2002 and 2006 also found:
- About 42% of riders killed were not wearing helmets.
- Half of those killed lost control and crashed without colliding with another vehicle. Motorcyclists account for about 2% of vehicles on the road but 10% of all traffic fatalities, according to federal statistics
- Southeastern states had some of the highest fatality rates in 2006. Some of these states require all riders to wear helmets, but they also have long riding seasons that expose bikers to more risk over time.
Federal statistics show that in states that weaken or repeal helmet laws, helmet use drops. In 1994, when the U.S. government still penalized states without helmet laws, 63% of riders wore helmets. By 2006, that percentage had dropped to 51%.
By Larry Cohan
The Legal Intelligencer
July 16, 2008
A few years ago, many lawyers lacked the fundamental tools to effectively use technology to present evidence in a complex medical malpractice case. Records were blown up, mounted on boards and manually held up for the jury’s review.
As courtroom presentation technology has evolved, more and more lawyers, paralegals and IT staff have become familiar with the tools to make effective courtroom presentations. In fact, a cottage industry has sprung up, offering the full gamut of services necessary for counsel to prepare a brilliant technologic presentation at trial, and “how to” articles are now commonplace, such as Gregory P. Joseph’s article titled “A Simplified Approach to Computer-Generated Evidence and Animations” and Diana G. Radcliff’s article titled “Using Trial Consultants: What Practitioners Need to Know” (4 J. Legal Advocacy & Practice 32 (2002)).
The question for trial counsel on both sides of the medical malpractice case is no longer whether or not we can use technology in the courtroom but whether we should. The question of the admissibility of evidence presented through technology — scanned documents, video, computer graphics and animation — is left to the sound discretion of the trial court.
While it is virtually certain that technology will be used in the courtroom in substantial matters involving commercial disputes, construction site accidents, defective products and pharmaceutical cases, the same cannot be said for medical malpractice cases.
MED MAL TRIALS LAG IN TECHNOLOGY
Medical malpractice trials have not yet gone fully high-tech. Most defense lawyers, presumably with the support of their carriers, do not use technology in the defense of a medical malpractice claim. A growing number, yet still relatively small percentage, of plaintiffs lawyers use nothing more than the simplest technology to present their client’s case. A variety of factors have led to this most interesting nondevelopment in medical malpractice trials.
First, medical malpractice trials are typically highly charged, acrimonious battles between injured individual plaintiffs and dedicated and skilled doctors. Simply put, technology can, at times, get in the way of the jury’s view of the critical issues before them. Computer-generated graphics can be overused to the extent where the witness, whose testimony is the paramount issue in jury decision-making, is overshadowed by videos and graphics.
Second, if one side uses technology and the other does not, the jury might consider the disparity as a significant issue. For example, if a plaintiff’s attorney arrived in the courtroom with high tech equipment, scanned documents, synchronized depositions and IT support staff, while the doctor’s attorney did nothing more than hold the paper record up in his or her hand in front of the jury, the jury might reach conclusions based upon considerations other than the evidence. Outside of a metropolitan courtroom it wouldn’t take much to reach the conclusion that the jury might be biased against the well-financed, high-tech plaintiff’s lawyer. On the other hand, the jury might believe the side using technology was better prepared. However, used effectively, some technology could add impact and credibility to either side’s cause in most jurisdictions.
Third, special consideration must be given to the fine art of utilizing technology in cases that boil down to issues of credibility. In the heat of cross-examination of a plaintiff or doctor, a prior inconsistent deposition statement presented by video clip, with synchronized transcript, could be a powerful weapon. However, overuse will dull the knife’s edge quickly. Technologic failures will have the jury laughing at the presenter. To attack credibility, technology needs to be used sparingly, in a timely manner, with precision and with keen anticipation of when it will be needed. Of course, the developing legal standards for admissibility must also be considered.
GUIDELINES FOR APPLYING TECHNOLOGY
A few general rules apply to all jury trials, including medical malpractice cases. When trying to make the decision about whether to use technology, what type to use and how to use it, the following overarching issues must be considered:
- How can you best control the jury’s focus?
- What will have the greatest effect on the jury?
- What will cause the jury to believe your evidence?
- How can you improve the jury’s ability to retain their memory of the critical evidence?
- What will the court permit?
DECIDING WHEN TO USE TECHNOLOGY
Let’s address some of the practical issues in a medical malpractice case. The size of your case will often dictate whether or not you can afford to use technology and whether or not the jury will receive it well. The complexity of the medical issues might suggest that technology is not a good idea. The fact that your adversary is known to be a likable, down to earth, “paper person” might lead you to conclude that too much technology will be a bad idea. Be honest with yourself — consider how good you will be with technology while cross-examining high-powered medical experts and physicians, sorting through records and arguing the complex medical-legal issues before the court.
If you do choose technology, have every medical record scanned into your trial software. Label and identify each document you will be using so you can access them easily with a stroke of a key. Have every deposition abstracted, synced with video and ready for use during cross-examination when the adverse party’s witness makes an inconsistent statement. Have critical texts and journal articles scanned, blown up, highlighted and ready to show the jury as soon as your expert makes reference to them, or as soon as the other side’s expert says something contradictory about them. Typed versions of illegible records are also helpful. Color graphic presentations of vital signs and medications will have effect and be remembered. Timelines with color and “movement” will have impact and add to the jury’s memory of your version of events.
Medical malpractice trials are unique. Using technology is not a foregone conclusion as it has become in other litigation settings. Careful use of technology can shift the jury’s focus, help them remember complex medical information, and affirm the credibility of you and your client. However, used in the wrong case, the wrong jurisdiction, or against the wrong adversary, and without proper preparation, technology can be your ticket to losing your medial malpractice case. We know you can, but don’t forget to spend quality time considering whether you should.
