Archive for the ‘Trial lawyer skills’ Category

Being Prepared for Objections by Guest Author Caryn Kopp

Wednesday, February 24th, 2010

male atty shake hands smNew business and expansion of business is dependent in part on being able to address objections.

One thing I can tell you about objections. If you can’t overcome them, you’ll never close the sale. Here are 3 tips to stay in control so you can get to the next step.

Tip 1. Identify all the objections you will face and then develop answers to overcome them (before you’re ever on the phone with someone)

Tip 2. Practice the answers until they don’t sound rehearsed.

Tip 3. Couple every response with a request for the next step. Which sounds like this. I understand you’re busy. Let’s look a little further out on the calendar, say the 3rd week of next month? How’s Thursday at 10?

If you’re prepared, rehearsed and request next steps, the sales cycle takes less time.

Next Step to Yes!

You can shorten the sales cycle with what I call Next Step to Yes! Ask for a next step during every contact point with a customer or prospect. Here’s an example. When a prospect asks for a proposal, secure a follow up date and time right there and then, at the moment when it’s most important. You can avoid all that wasted time trying to get them back on the phone.

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51/2 Ways To … Possibly Solicit Cooperation When Negotiating by Guest Author Greg Williams

Monday, February 22nd, 2010

two women attorneys smWhen negotiating, how do you solicit cooperation? You can browbeat someone; you can cajole them; you can be very amenable to their every whim, and yet, you may still be unsuccessful at soliciting her cooperation. The one thing you must do, in order to give someone what she wants and needs is to understand why she wants and needs what she is seeking. The following are 51/2 ways you can solicit cooperation when negotiating.

1. Be honest:
Where and when possible, be honest. Some situations may require that you shave the truth, but unless you’re negotiating in a hostile situation, one in which the other negotiator is not being as forthright as she should, walk the path of truth. The truth, applied with sincerity, will tend to engender support for your cause. Always strive to be honest, but weigh the cost of doing so, depending upon the situation in which you negotiate.

2. Know mental strength:
You must know your strengths and weaknesses, along with those of the other negotiator in order to solicit cooperation. Seek to understand the mindset of the other negotiator before attempting to sway her. Understand her true source of motivation and cater to it. Before soliciting her assistance, reveal yourself as a nonthreatening person who only seeks understanding, in order to be understood.

3. Know your target:
Three questions to ask the other negotiator are:

What do you want?
What are you seeking?
How will you know when you’ve received/achieved it?

By asking such questions, you’ll receive her ‘measuring stick’ for that which is important to her. In addressing her needs, you will have an unequivocal mark upon which to aim and to measure the outcome based on what she seeks from the negotiation.

4. Consider begging:
Yes, I said it! If all else fails, when the stakes are high and none of your attempts bear fruit, consider begging to solicit support. With some individuals, such actions are very appealing. Just be mindful of to whom you are begging, because it can also be a turn-off.

5. Speak in the positive:
When communicating, express your positions in the positive. Instead of saying, “I don’t think point A warrants much merit”, say instead, “I prefer point B.” In so doing, you’ll be infusing the conversation with positivity. You’ll also subliminally, plant the thought of being positive as you solicit support.

5.5 Let it go:
Never be afraid of letting go. You won’t be able to convince everyone to see things your way. Some people will never sense the value you possess. In such cases, find others with whom to negotiate. When you negotiate, you should have alternate sources from which to receive what you seek. In addition, by showing that you’re willing to walk away, you can enhance your position.

As you negotiate, if you apply the appropriate strategy to solicit cooperation, in the right manner, and at the right time, in the right place, more often than not, you’ll get the assistance you seek … and everything will be right with the world.

The Negotiation Tips Are …
• Always remember, in a negotiation, timing is everything. Just because someone is not amenable to your offer today does not mean she won’t be agreeable tomorrow. Assess her desirability to connect with you, and time your attempts to solicit her support when the time is best suited for her to do so.
• Consider the size of the emotional stage the other negotiator wishes to stand on and how she wishes to be perceived. If she wants to be recognized as being magnanimous, feed that need in her. By addressing the need that has her highest desire, you can assist her in achieving the emotional feeling she’s seeking and she’ll be more willing to assist you.
• When negotiating, always strive to align your actions to match the outcome you and the other negotiator seek from the negotiation.

If you would like to have Greg Williams, The Master Negotiator as a keynote speaker, trainer, or coach at your company, group, or organization, contact him by sending an e-mail to The Master Negotiator and begin maximization your resources.

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More writing tips

Wednesday, February 10th, 2010

This is the final set of submissions for my writing tips contest.
CD
Another tip is not to forget to write out medical abbreviations in long hand and to include simpler term explanation of complex medical terminology as some documents may be used by legal representatives that do not just deal with medical legal issues.
Deborah Ben-Abu

As for my writing tip I would say “just do it, start somewhere then edit, edit and edit again.” There are so many avenues to write now, I was able to write an article for earticle.com and it was published. Just a starter on advocating for yourself in healthcare but none the less I did it!
Valerie Lane, Springville, CA

I thought I would send my best practice tip “pet peeve”. Do you make sure that you do NOT put apostrophes in abbreviations for multiple tests and/or diagnostic studies? Write EKGs NOT EKG’s, MRIs NOT MRI’s, etc. I see this all the time.
Jane D. Heron, RN, BSN, MBA, Matawan, NJ

Write it and save it. Then in the next day or two, open it back up and read it again. You may see mistakes you did not see the first time. You cannot use this tip if you wait till the last minute to write your report.
Kathie W. Condon, RN, MSN, LNCC, Birmingham, AL

Always try to finish the product so that there is enough time to leave it for a day, or even a few hours, then go back and reread it with fresh eyes. This often allows one to pick up on typos or grammatical errors that one might not pick up on when tired or when one has been working on a piece for a lengthy period of time.
Susan Gunter

When I write using medical terminology or medical words that the computer does not recognize I check for proper spelling and add it to my dictionary for future use. I never assume I wrote the word correctly.
Aileen and Israel ColÒn Jr., Tulsa, OK

My tip for writing is to make sure you send it in a format that the receiver can open. This oversight can delay your report and but more importantly will disappoint the receiver. Customer service is the key. Keep the doors open and send the report in the form they prefer.
Candyce Ross, Tulare, CA

Use action verbs.
Susan B. Priest, MSN, RN, CNS

Join us for a free class on how to stand out as a Legal Nurse Consultant, February 25. See http://www.patiyer.com/lncstandout/index.html

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Writing Tips

Monday, February 8th, 2010

computerkeyboardThese are additional entries from my writing tips contest.

Store perfected phrases and language in the autotext feature of your word processing program.  That way, you can just click on a key word and immediately produce the desired text at the correct position within your document.  This is a big, big time saver.
Sue Kelly Paralegal, Red Bank, NJ

Keeping current includes newer uses of language, descriptors, etc. It also means your work product.  Use current styles of paper, fonts, format, display folders, marketing tools, business cards, letterhead, etc.  I find that after being in business since the 80’s, it is essential to update and upgrade all that we do from fashion to products.
Lorraine A. Shoaf RN, BSN, LNCC Legal Nurse Consultant

One of my final checks is to make sure my tense is consistent rather than moving from past tense to present tense and back and forth.  Sometimes a tense change is necessary, but it should not occur at random throughout the document.
Kathy Clark, MS, RN Oklahoma City, OK

My writing tip is in a word, organization.  Did I organize my facts? Is there a flow to the report? The organization of thoughts and facts should start with a beginning, middle and end and make it easy for the editor/ reader to follow the story line.  It also makes reading the report a pleasure.  Understanding that you are writing for a non-medical professional whose forte happens to be verbiage is limitless in value too.

It takes time to write a good report. I find that casual emails are not written with the same intensity that a report or a story is composed with.
Claire Hull, RN, CCM, CLNC

Remember this:  Know your audience and gear your writing accordingly.  If you don’t, your writing could be too technical, not technical enough, or you could miss the mark entirely, writing something for the wrong person or group of people.  If you’re writing for business, you also risk disappointing your client.

For instance, I recently became a staff writer for two local medical magazines, each with a totally different audience.  One is geared towards physicians and office managers; the other has an audience of lay people–”patients”– interested in health and wellness.  I initially struggled with my articles, trying to figure out what the “angle” would be and how to write something that would be of interest.  It then occurred to me that I just needed to remember my audience:  those who are health providers, those that manage their offices, and everyday people (albeit with their own set of demographics) who are interested in improving their health.  Knowing my audience helps me focus on what’s important to each group.
Karen Devin, RN, BSN, Lexington, Kentucky

Join us for a free class on how to stand out as a Legal Nurse Consultant, February 25. See http://www.patiyer.com/lncstandout/index.html

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Tips for Writing by Joan Pate

Wednesday, February 3rd, 2010

I ranCD a contest asking for suggestions for writing. This was the winning entry by Joan Pate.

I often have a “writer’s block” of sorts when I sit down to write a report on a case and have used a couple of techniques I used in a previous life as a Navy Public Affairs Officer. These suggestions helped me enormously when writing news releases, articles for publication, particularly on sensitive issues. They may be helpful to others who experience a similar situation.

Before writing a report, I follow the steps listed below and find my reports are succinct, precise and to the point.

1. Read similar material to the issue(s) in the case. This may be articles from the AAALNC Journal, medical legal references, medical references or clinical journals or research. There’s no prescribed period of time to read, but I find that after reading several articles or chapters, the words I need, flow quickly from my head to paper.

2. Using a 5X8 card, I jot down every thought about the report that comes into my head, placed in random fashion on the card. Such words in a ambulatory clinic case might be: clinic SOC, who’s the supervisor, assess/re-assess, verify med dose/action, fall risk, serial vital signs, old injuries?  If what I wrote doesn’t seem to cover the issue, I go back to reading another article and then add more thoughts to the 5X8 card. These thoughts are collated into similar or like topics or headers.

3. Prepare a general outline for the report, just the way we were taught in school with sections like, I. A. B. C., II. A. B. C. D, etc

4. On a separate piece of paper, list all the players in the report, (with full name, position, title) and important dates/times/locations. Double check this information before proceeding. This list is critical to ensuring accuracy in the report.

5. I generally write my opinion first on whatever issue, I was asked to review, and then fill in the sections of the outline with appropriate data and information.

6. I review the written report at least twice before submitting it, with one review after a good night’s rest.

I hope this is the gist of what you were looking for; it was very helpful to me to write the thoughts down this way, because I realized that I was using tools that were very successful in the past.

Joan M. Pate’, MS, RN, Rio Rancho, New Mexico

Join us for a free class on how to stand out as a Legal Nurse Consultant, February 25. See http://www.patiyer.com/lncstandout/index.html

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The Language Patrol by Pat Iyer

Monday, February 1st, 2010

I grew up in a household where proper use of English was crucial. The dictionary often joined us at meals as we arguedpedestrian over the correct use of a word or phrase. It was common to gleefully pounce on a slip of the tongue. When I was 10-years-old and riding in a car with my family, I saw a sign and announced to my family that we should watch out for Presbyterians. They howled as they passed the sign that said to watch out for pedestrians. No doubt this story would still make them howl. I choose not to remind them. It took too many years for them to forget.

Many of you grew up with your version of a language patrol. The language patrol helped me develop a fine ear for correct word usage, and that has served me well over the years. I have learned a lot of tips by spending 20 years editing other people’s reports, 22 years writing reports and 30 years writing for publication.

Tips for Checking Your Work Product

Attorneys, paralegals, and legal nurse consultants spend a lot of time writing. Consider these tips as you review your work product:

What is the point of my report? Did I make it?

Is my point credible? Did I supply enough information to establish it?

Did I start with the most important points?

Have I been careful not to assume that the reader knows everything I know about the subject? Have I provided sufficient education to the reader?

If I were the reader, what would be going through my mind right now and after I finish the report? What conclusions would I reach?

Have I mastered the facts? Did I omit or overlook any important points?

Was I clear? Is there any way I can improve the flow or organization of the report?

Did I avoid using passive voice?

Was I too wordy?

Did I ramble?

Did I spell the recipient’s name correctly?

Did I spell other names correctly?

Are my dates correct?

Did I use headers and autonumber each page except the first?

Did I correctly use either block, indented or modified block style in a letter?

Have I been consistent? For example, did I use all numbers for dates or spell out all months?

Is the format of my document consistent in terms of headers, justification, and spacing?

Did I use only one space after an ending punctuation mark and eliminate extra spaces with search and replace?

Did I correctly use singular and plural and possessive words?

Do the sentences flow smoothly, or are they disjointed, run-on, and unorganized?

Are all of my sentences set up with parallel structure?

Are all my sentences complete or did I leave out a subject or verb?

Did I vary sentence structure?

Was I repetitive?

Can I be more precise?

Can I eliminate any words without losing substance?

Are my paragraphs varying in length?

Did I spell and grammar check my document?

Did I read my work product out loud? Did I have to stop to take a breath as I read a long sentence? If so, did I edit the sentence or divide it into two?

Did I include both pairs of items, such as parentheses and quotation marks?

Have I proofread the report, noting my habitual mistakes and words that have been skipped over by the spell checker?

Have I checked my punctuation? Has someone else with a good grasp of writing reviewed my report?

Do you have any tips to share? Send us a comment. Learn more about how to improve writing skills by attending a free teleseminar on 2/25/10. http://www.patiyer.com/lncstandout/index.html for details.

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A Model for Understanding Product Development by Pat Iyer

Wednesday, January 13th, 2010

What is the risky way to expand a business?

What is the risky way to expand a business?

How do you determine if you should expand the services of your company? Should your law firm branch into another area? Should your legal nurse consulting firm start offering a new service? Which expansions are high risk? When should you make the change?

Norman Levy, a consultant, presented a model at the National Speakers Association Convention in August 2009 that made a lot of sense to me. These are four choices:

1. Provide more products and services to your existing customers.
2. Provide your existing products and services to a new market.
3. Develop new products and services for an existing market.
4. Provide new products and services to a new market.

Generally the lowest risk choice is #1, and the highest risk choice is #4. Conventional wisdom states that #1 is least risky because of the relationship you have with your current clients, who know and trust you. Med League started 21 years ago by supplying nursing expert witnesses, and added medical summaries, screening for medical malpractice, literature searches, attendance at IMEs, preparing of demonstrative evidence, and so on to our existing clients. These are #1 activities: more products and services to our existing clients.

Occasionally I teach (existing service) nurses who are being disciplined by the Board of Nursing, an example of a new market, a #2 activity.

When we started providing teleseminars for attorneys and legal nurse consultants in the fall of 2008, we branched into a #3 activity: new services for an existing market. We are about to launch a new service of a different nature to our existing market.

Although providing more services to existing client should be least risky, sometimes radical changes in the market place require businesses to shift the focus. For example, we used to have a lot more motor vehicle accident lawsuits before changes in the law toughened the criteria for filing suit. Many attorneys shifted their focus to new areas of law to compensate for the changes.

What’s clear if that you can’t stand still and be complacent. Look at where you are, what the market needs and what you need to change to move ahead.

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Is the Government Interested in Medical Error? Based on a chapter by Carol Armenti JD MA

Wednesday, January 6th, 2010

writing prescriptionThere is little question that government interest in medical error is economic rather than benevolent for even the legislative language of medical malpractice speaks, not to the injuries caused to the patient, but to the government’s budget. When the New Jersey Legislature enacted “The Patients First Act,” ironically, it spoke not to the rights of the patients, but to medical malpractice insurance. “The State’s healthcare system and its residents’ access to healthcare providers are threatened by a dramatic escalation in medical malpractice liability insurance premiums, which is creating a crisis of affordability in the purchase of necessary liability for our healthcare providers. . .” 1

Apparently the New Jersey Legislature found the appropriate response to escalating premiums was not to prevent harm but to reform tort liability. The Legislature took the position that tort reform ensures “that healthcare services continue to be available and accessible to residents of the State and to enhance patient safety at healthcare facilities.” 2

New Jersey is not alone in passage of tort reform legislation, which responds to patients suffering medical harm by increasing the burden on plaintiffs’ bar, thereby protecting physicians from suit. While obvious financial self-preservation motivates much of the tort reform rhetoric instigated by healthcare providers and insurers, patient advocates who sometimes speak the language of tort reform may be motivated by other self-interests.

With a myopia driven by the personal pain of the patient, or the patient’s family members, patient advocates lobby for reforms which will promote emotional healing. Advocates may attempt to teach physicians to feign sympathy in exchange for release-exacted transparency by assuaging their hearts. Transparency rarely requires additional quid pro quo. In such scenarios medical error may be admitted and specious regrets conveyed, but no commitment to prevent further occurrence of the medical error results. See how a medical malpractice suit can make a difference at http://t8mzr.th8.us

What do you think? Is the government really interested in saving lives?

1. N.J.S.A. 2A:53A-38(b).
2. 13. N.J.S.A. 2A:53A-38(f).

Taken from “Preventing Healthcare-Acquired Conditions Means Never Having to Say You’re Sorry” by Carol Ann Armenti, MA, JD in Patricia Iyer and Barbara Levin, (Editors), Medical Legal Aspects of Medical Records, Second Edition, 2010. Contact us for ordering information.

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Obtaining Diagnostic Imaging for a Potential Medical Malpractice Claim based on a chapter by Peter Berge JD, MPA, PA

Wednesday, December 30th, 2009
films are crucial in failure to diagnose cases

Films are crucial in failure to diagnose cases

The liability of a failure to diagnose or delay in diagnosis case often rests on the information revealed by a diagnostic test. Both defense and plaintiff attorneys and their experts will be interested in what the test showed. Computerized axial tomography (CT) scans and magnetic resonance imaging (MRI) are usually stored in digital form. Obtaining those scans on a CD-ROM disk provides significant flexibility, especially when more than one expert will be reviewing the images. Plain radiographs (x-ray films) are becoming more commonly available in digital form. Where diagnostic images can be obtained on disk, they should be. It is more efficient to copy and mail a CD-ROM than to package and send large and ungainly packages of films, much less to send those films from one expert to another. Such files are usually provided with an integrated viewing program, such as those based on the Digital Imaging and Communications in Medicine (DICOM [TM]) standard. If not, a number of viewers are available as “freeware” for download from the internet.

Mammograms are most often available only on film, and copies are usually not suitable for expert review due to degradation in image quality. Original mammogram films should be obtained early in the evaluation and handled carefully, as they are often key to claims of delayed diagnosis of breast cancer.

Obtaining diagnostic fetal ultrasound images may present a challenge. Copies are not likely to be of suitable quality for expert review, and providers will sometimes vigorously resist attempts to obtain the original paper images, including opposing motions for pretrial discovery to require their production. It is sometimes possible to obtain digital copies of the original images. Although this can be costly, it is probably less so than engaging in extended motion practice, or paying an expert to go to the potential defendant’s facility to examine the original documents. Cases have been won and lost on the quality and interpretation of diagnostic tests. Be sure to make every effort to safeguard original films. Experts must be instructed on methods of returning films to the appropriate location. Sadly, cases have been won and lost on misplaced films.

Modified from Peter Berge, JD, MPA, PA “Attorney Use of Medical Records in a Medical Malpractice Case”, from Patricia Iyer and Barbara Levin, Medical Legal Aspects of Medical Records, Second Edition, March 2010. Contact us for ordering information.

Read more about Med League’s services in medical record analysis.

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Illegible Medical Records based on a chapter by Peter Berge JD, MPA, PA

Wednesday, December 23rd, 2009
Waht is the name of the drug?

What is the name of the drug?

In 2009, people’s lives still hinge upon correct interpretation of handwritten records. Some handwritten records are virtually, or actually, illegible. The prescription above was written for Femara. Premarin was dispensed and harmed the patient who received it.

Plaintiff’s and defense attorneys and other reviewers should be familiar with state laws or regulations that permit the patient (or her representative) to require the healthcare provider to provide a timely transcription of notes. Defense attorneys are not likely to require transcriptions as they are representing the provider, who (if required) would voluntarily produce them. This can be very helpful in expediting the evaluation of otherwise opaque records in the setting of pretrial investigation. If transcriptions were not obtained during the investigative phase, they should be demanded after suit is filed if there is any doubt as to the interpretation of notations.

Regardless of when transcriptions were created, it is important for plaintiff’s counsel during depositions to verify the accuracy of the transcription. It is surprisingly common to find errors in transcription, especially when it turns out that opposing counsel provided the document without verifying the content with the witness.

Defense counsel will often have the advantage of direct access to defendants for assistance in deciphering medical records, except when dealing with the records of individuals with separate counsel. When in doubt, it is prudent to have the client interpret any handwritten notations of questionable legibility. There will be times, however, when the healthcare provider has no more idea of what the note says than the attorney does. While computerized records have some flaws, they eliminate guessing with people’s lives.

Modified from Peter Berge, JD, MPA,  PA. “Attorney Use of Medical Records in a Medical Malpractice Case”, from Patricia Iyer and Barbara Levin, Medical Legal Aspects of Medical Records, Second Edition, 2010.

Contact us for ordering information.

Read more about Med League’s services in medical record analysis.

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