Medical-Legal Topics » Trial lawyer skills

The Largest Pro Bono Effort in History

Pat Iyer — Fri, 30 Sep 2011 10:11:26 +0000

As we remember the attack on the World Trade Center this month, it is also important to remember the massive effort that went into compensating the families of the victims. Many attorneys were involved in assisting families. Med League worked on one of these cases summarizing the suffering the person went through as he fled the building. The descriptions of what he saw inside the building remain with me still.

This article summarizes how the attorrneys got involved in helping the families.

“It was something personal with me because I was across the street,” says Stephan H. Peskin of Tolmage, Peskin, Harris, Falick. “I saw the second hit. I smelled the smells.”

“You’re reading about it, and you’re watching the news, and you feel somewhat helpless,” adds Anthony Bisignano of The Bisignano Law Firm. “You’d like to make some type of a contribution.”

“[The New York State Trial Lawyers Association] headquarters was, and still is, three blocks from ground zero,” says David B. Golomb, of the Law Offices of David B. Golomb. “Our staff, in fact, was literally sheltering people who had come in off the street from the site.”

Ten years ago, as workers and volunteers made their way to ground zero to aid 9/11 survivors, the city’s lawyers also scrambled to help.
What started there turned into the largest pro bono effort in history.

Golomb, along with Leo V. Boyle of Boston, then-president of the Association of Trial Lawyers of America (ATLA, now the American Association for Justice), Larry S. Stewart in Miami, past-president of ATLA, and Richard A. Bieder of Bridgeport, Conn., founded Trial Lawyers Care (TLC), with more than 1,100 attorneys across the world taking on cases for more than 1,700 families spread around the country and the globe.

“This was invented in the early morning hours when Congress was passing [the Victim Compensation Fund], and for the first time in American history, they were doing away with the jury system on significant numbers of claims,” says Peskin, vice president of TLC. “But before we would allow that to pass, we wanted some input into it and so we put together Trial Lawyers Care to make certain that at least the people had an advocate. That part of it worked out very well.”

The September 11th Victim Compensation Fund of 2001, created by Congress on Sept. 22, 2001, allowed families of 9/11 victims to apply for awards while waiving their rights to sue the airlines. TLC was created to help those families. Participating lawyers rendered services free of charge. Read more

25 Strategies for Conflict Resolution

Pat Iyer — Tue, 13 Sep 2011 10:10:43 +0000

1. Don’t focus on winning or losing; focus on achieving objectives.
2. Interrupting to make your point is pointless.
3. Be smart not right. You aren’t finding the right answer; you’re searching for the better alternative.
4. Focus on progress rather than perfect solutions.
5. Trying to solve the past is futile; you can, however, move in better directions.
6. Give ground on peripheral or non-essential points.
7. Keep things simple. Complexity stalls solutions.
8. Never tell someone what they think; ask them.
9. Never let someone tell you what you think.
10. Your “opponent” will use over-statements and unrealistic conclusions to invalidate your goals.
11. Your opponent will make you angry. When they do, you lose.
12. Keep an open posture.
13. Remove barriers and obstacles. Create a clear path across the table or desk. Better yet step away from the desk.
14. Physically align yourself with them. Rather than face-to-face, stand beside.
15. Talk while taking a walk.
16. Be pleasant but not jovial.
17. When they raise their voice, lower yours.
18. Use “and” more than “but” because “but” is an eraser. For example, I agree with you but…, diminish agreements.
19. Show respect; don’t get personal.
20. Identify your opponent’s objectives and agree where possible. Help them win before you win.
21. Explore your opponent’s options.
22. Address your opponent’s fears.
23. Use experts and research.
24. Speak to the heart – if they have one.
25. Stay on point. Distractions are normal.

Bonus: Solve issues before arguments erupt.

Today’s featured blogger is Dan Rockwell. Dan writes the popular Leadership Freak blog. You can follow Dan on Twitter, connect on LinkedIn, like his page on Facebook, or circle him on Google+. This post originally appeared on the Leadership Blog as “25 Ways to End Arguments.” and was replicated from BudtoBoss.

Use Symbols Intelligently When Negotiating

Pat Iyer — Tue, 30 Aug 2011 16:45:26 +0000

When negotiating, do you consider how intelligent you appear? During negotiations, the other negotiator is influenced by the intellect and emotions you display. Thus, throughout the negotiation, symbols matter. Symbols consist of the makeup of the character you project into the negotiations, your clothing, the gestures you make, and the manner in which you implement the strategy you’ve laid out for the negotiation. To produce a successful negotiation outcome, try influencing the other negotiator by adopting the following strategies.
1. Makeup of character you project:
• Be wholesome when you project the character/role you’re playing in the negotiation. Match it appropriately, based on the demeanor of the other negotiator. Be cautious not to overplay or underplay the role. Be ‘in sync’ with the other negotiator, but only to the point that it benefits the negotiation process.
2. Manner of dress:
• In most negotiations, your attire plays a very important role. If you’re dressed impeccably in a negotiation that calls for ‘sleeves rolled up’, you may be perceived as pompous, disingenuous, somewhat removed from the current situation, or someone that doesn’t understand the crux of the matter. When considering your style of dress for a negotiation, choose your apparel to match your appeal, based on the projections you wish to cast.
3. Gestures you make:
• During a negotiation, the gestures you make convey your sentiments and thought process. In essence, your gestures telegraph the mental state of mind you possess. If you can align your gestures to express the mood you wish to project, you can influence the perception of the other negotiator. In so doing, you’ll move him in the direction in which you’d like the negotiation to flow.
4. Implementation of Strategy:
• As you implement the strategy that you’ve created for the negotiation, you should do so from the perspective of how the other negotiator is viewing your actions. In essence, implement your strategy in a manner that is fluid with what’s occurring in the negotiation. Be sure to consider detours that you may have to take in order to reach the outcome you seek, as you engage in the negotiation process.

As you negotiate, using the above strategies, you’ll subliminally influence the other negotiator with your new found hidden skills. To insure that your future negotiations are influenced more positively, adhere to these strategies and utilize them to the point that they become effortless. You’ll revel in the soaring heights to which your negotiation effects will ascend. You’ll become a more dynamic negotiator, which will allow you to acquire more of that for which you negotiate.

Gain from Greg Williams’ expertise by watching a replay of a webinar: Superpower your ability to negotiate: how to read body language.

Impact of Pain and Suffering Hits a Juror

Pat Iyer — Tue, 23 Aug 2011 10:42:05 +0000

The description of pain and suffering was enough to cause a juror to faint in a Philadelphia courtroom this month. The case involved Gary Petter, who was hit by a PATCO truck after he crossed the Benjamin Franklin Bridge. The impact threw him into a median strip and broke his leg. The defense conceded liability when a video showed the truck driver had run a red light.

Plaintiff attorney Robert Mongeluzzi, of Salz Mongeluzzi Barrett and Bendesky, an articulate and persuasive man, presented the opening statement. He described a grisly surgery in which doctors removed sections of dead tissue and bone to avoid amputation. Juror Number 1 fainted. The judge ordered his staff to call 911. Instead of trial resuming, defense attorney John Snyder of Rawle and Henderson offered to renew settlement discussions. The case settled for $10 million, nearly double the pretrial offer.

This story makes me think of times I have been in the courtroom testifying about pain and suffering. Nurses learn at an early part in their education to assume a bland exterior when confronted with a sight or smell that many would find disgusting. We are taught to not reveal our reactions to the patient, for fear of conveying negative impressions or hurting the patient’s feelings. We are trained to function in the most intense emergencies, and then use black humor to deal with the emotions and reactions that flood in once the crisis is over. We can view pressure sores, wounds, body fluids and tissues with clinical detachment. For example, wound care nurses can scarf up plates of scrambled eggs while watching PowerPoint presentations that include pictures of pressure sores. Consequently, we often lose perspective about how these sights can affect nonhealthcare providers.

Mr. Mongeluzzi’s experience reminds me of three such experiences.
1. I testified about pain and suffering that a woman suffered after she had a podiatric surgery involving wires. She eventually lost portions of her feet. One of the jurors told the judge that if he had to look at photographs of this woman’s feet, he would faint. Feet! The judge ruled that the photographs would not be shown to any jurors. The plaintiff attorney won the case.
2. I testified in Brooklyn involving a woman in her 80s who developed stage IV pressure sores of her sacrum and both hips. The attorney had the photographs enlarged and mounted on boards. When the bailiff saw the pictures, he winced, and I remember thinking, “Oh, these pictures must look really bad to others.” The jurors were horrified by the pictures. The case brought in a large verdict for the plaintiff.
3. I taught a program on pain and suffering to a Pennsylvania Bar Association. Part of my slide presentation involved showing pictures of pressure sores so I could explain the stages. The catering staff served cherry Danish to the attorneys. One of the female attorneys looked at the pictures of pressure sores and then covered her cherry Danish with a napkin. This experience made me aware of the need to warn attorneys in my audiences if there were gruesome pictures, so they had the option to turn their heads. I have noticed there are some in every crowd who look away.

Never underestimate the impact of photographs or descriptions of clinical care.

Details of the Pettet case came from New Jersey Law Journal, August 15, 2011, page 3

Patricia Iyer MSN RN LNCC is president of Med League, and has testified about pain and suffering in several courtrooms. She has prepared over 500 pain and suffering reports over the last 20 years.

Law Firm Quality Improvement: Plan Do Study Act

Pat Iyer — Fri, 22 Jul 2011 10:58:15 +0000

At a recent meeting of the partners of the firm, a person brings up the problem of finding documents related to one client’s case in a different client’s file. At Med League, we can sympathize with this because we get medical records that belong to one patient’s file but are located in someone else’s chart. Many law firms are challenged by the need to keep up with the flow of paper. This blog post discusses a systematic quality improvement process that you can apply to your firm.

The “Plan Do Study Act” model can be used in many types of businesses. Let’s apply it to misfiled documents. First, assemble a team to look at the problem. Include representative members- someone in a clerical role responsible for filing, an attorney, and a paralegal, for example. Look at the problem for several angles, consistently asking why a certain process is in place or a certain thing happens. This is called drilling down to get to the root of the problem. For example, one explanation for misfiling is that people don’t pay attention to last names. But deeper reflection may show that the way of indicating names is not clear; there may be insufficient time allotted to filing; the filing may be done by people who have not been trained, and so on.

Step 1: Brainstorm in the planning stage. Determine your objective of doing a pilot test of a change in the procedure. For example, your team may decide that it recommends a scanner on one administrative assistant’s desk so she can scan every document that comes in for a limited number of clients. State your objective of this test: to eliminate paper filing and the risk of mislaid papers. Make a prediction about what you think you’ll find from your test.

Step 2: Do the test. Try it out on a small scale, and document problems or unexpected findings. For example, you may determine your method of storing electronic files is confusing and inconsistent. We avoid this at Med League by giving every electronic file three levels of folders: The full name of the law firm, the full name of the attorney, and the full name of the patient. We don’t have trouble finding files since everything is consistent.

Step 3: Study the results. Look at the data, analyze it and compare it to what you predicted you’d find. What did you learn from the test? Did you find the scanning piled up? Did the scanner work well?

Step 4: Act. Refine the change. Perhaps you’ll decide to implement a plan of scanning all documents as they come in the law firm. You may need a larger server with more storage space, in addition to scanners. Decide a realistic plan for implementing the change, and plan the next test.

Careful examination of your processes will teach you what you need to change. Listening to everyone’s perspective and sharing the results of your test will result in a stronger solution.

Before Pat Iyer became president of Med League, she was a nursing quality improvement coordinator.

Evasive answers during deposition

Pat Iyer — Tue, 19 Jul 2011 10:31:21 +0000

This is an example of an evasive set of answers during a deposition of a physician.

Just answer the question, Doctor.

A: I told you I wasn’t perfect. I attempted to comply with Medicare regs. I was not perfect in my documentation.
Q: Okay. And it was pointed out to you on a number of occasions, was it not?
A: I disagree with the term “number of occasions.” It was pointed out a couple of times that there were gaps in my documentation.
Q: A couple of times means two?
A: Does a couple mean two?
Q: Well, I’m trying to understand your answer. What does it mean to you?
A: It means a few.
Q: Okay. Does that mean – a few, does that mean several?
A: I told you. I don’t remember the exact number.
Q: Okay. I’m not asking you exact numbers. I’m asking you a ballpark. Is it more than ten?
A: It was a few.
Q: How many is a few to you? Bookend that for me.
A: More than two and I don’t know. I never had to define a few before. More than two.
Q: Okay. Is it 100?
A: No, I wouldn’t consider a few a hundred.
Q: Would a few be ten?
A: It depends upon in what context it was in.
Q: This is your answer. You’ve got to tell me the context. How much is a few?
A: I gave you an answer. A few is a few. It is more than two.
Q: More than two?
A: And less than a hundred.
Q: It is less than fifty?
A: Probably less than fifty.
Q: It is less than 25 to you?
A: Once again, that would depend upon the context.
Q: In this context in receiving criticism regarding your documentation, how many times is a few. Is it less than 25?
A: I believe so.
Q: Less than twenty?
A: Based on what I recall, yes.
Q: Okay. Less than 15?
A: Possibly.
Q: Less than ten?
A: I don’t remember specifically. It’s somewhere in that ballpark.
Q: Okay. So a few being more than two and less than a hundred is now more than two and less than 15, is that right?
A: If that makes you happy, yes.
Q: I want to know what your answer is. I don’t want to be happy. I want to know your answer.
A: My answer is a few.
Q: Okay. The best of your recollection right now, speaking to me today, does a few mean more than two and less than 15? Can you be more specific than that?
A: No.

10 Qualities of a Successful Legal Nurse Consultant

Pat Iyer — Tue, 21 Jun 2011 10:40:54 +0000

Lots of nurses are aware of legal nurse consulting. Many have taken a course to prepare for this field. Few are successful. Here are some tips for identifying a legal nurse consultant who will be able to effectively assist you with your cases.
1. Look for a nurse with a current nursing license as a registered nurse. Licensed practical nurses are not considered to have the requisite educational background to provide consulting services in this role.
2. Ask the legal nurse consultant if she has at least 5 years of clinical experience. The longer a nurse has been clinically active, the more knowledge and experience the nurse will bring to the evaluation of the attorney’s cases. Each year of clinical service results in a vast wealth of knowledge.
3. Certification as a legal nurse consultant is definitely a plus. The LNCC (Legal Nurse Consultant Certified) is the only certification program that requires the legal nurse consultant to have extensive experience in order to sit for the certification exam. This is similar to the trial lawyers certification.
4. Ask the legal nurse consultant if she has undergone some type of preparation. Routes into the field of legal nurse consulting vary. Some people learn best by reading the core curriculum, Legal Nurse Consulting Principles and Practices. Med League’s president, Pat Iyer, was the editor of the second edition. Others learn from online courses, webinars, college, multi-day or weekend courses.
5. Look for someone with strong written and oral communication skills. Good communication skills are important when working with the attorney, communicating with the client, or talking with the various physicians, nurses, scientific or healthcare provider experts, and defendants. Your legal nurse consultant should be able to teach you scientific and medical information you can use to review, litigate, settle, or defend a case. It is imperative that the legal nurse consultant be able to put complex, confusing information into words easily understood by the lay person.
6. Look for a legal nurse consultant who is organized and analytical. The ability to take complex information and organize it in a logical fashion is one of the most important skills this person brings to the legal arena. The LNC’s organizational skills assist you by sorting through and organizing medical records, developing case strategies, suggesting which expert witnesses to retain in what order, and managing the volume of paper generated by a lawsuit.
7. Look for a person who is resourceful. The LNC is called upon to ferret out medical information, develop exhibits, and suggest case strategies.
8. The LNC should be easy to work with. Rarely can nurses choose to not care for a difficult patient. They may develop a plan of care to deal with the angry, manipulative, or withdrawn patient. Attorneys experiencing the pressures of practicing law, taking depositions, or preparing for trial or settlement conferences can experience stress that manifests itself in a variety of ways. The LNC is often a helpful support person in these circumstances. She or he has to be able to work with a range of personalities, some of whom are challenging, and some who flare under tight deadlines and stress. Not every nurse has the ability to be a LNC. The special communication skills, detective-like thinking, detail-oriented behavior, and ability to teach and research are not universally present in all nurses.
9. The LNC should have strong research skills. Strong Internet search skills are a must including those needed for medical literature searches, obtaining hard copies of journal articles and medical text books, locating current contact information for medical providers and doing background checks of defendant physicians and opposing counsel’s experts.
10. Look for someone who is persistent. It takes effort, the ability to deal with rejection, and resourcefulness to launch and sustain an LNC practice. It takes persistence to plow though voluminous medical records, to find the details that are important for a case. It takes persistence to manage an office practice, to obtain and satisfy clients.

Modified from Patrica Iyer and Deborah D’Andrea, “Working with LNCs” in Patricia Iyer, Barbara Levin, Kathleen Ashton and Victoria Powell (Editors), Nursing Malpractice, 4th edition, 2011

How do you evaluate a legal nurse consultant?

Pat Iyer — Tue, 14 Jun 2011 11:35:27 +0000

Every attorney uses criteria to judge the quality of the work provided by a support person such as a LNC. Here are some questions to ask as the attorney progresses in the relationship with the LNC:

* Was the LNC able to provide the desired services?
* Were the services provided in a timely manner?
* Was the quality of the work product what I expected it would be or was it better?
* Did the LNC identify something in the case I would have completely missed?
* Did the LNC provide me with something extra I did not expect to receive?
* Was the LNC able to readily communicate opinions and provide material that made it easier for me to understand the case?
* Did the LNC adhere to the opinions expressed and explain the rationale behind them?
* Was the LNC able to anticipate the strategies raised by the other side of the case?
* Was the LNC knowledgeable about national, federal, and state nursing regulations?
* Did the LNC tell me the strengths as well as the weaknesses of the case?
* If the LNC was asked to provide literature, did it address the applicable standards of care at the time of the incident? Was the literature complete? If I asked the LNC to summarize the literature, was the summary easy to follow?
* Does the LNC have a good understanding of the legal system?
* Is the LNC easy to work with?
* Are the invoices prepared by the LNC well documented with explanations of the services provided?
* Have there been any surprises in the invoices?
* Have the invoices fairly represented the services provided and the hours spent on the file?
* Has the LNC asked me for comments on the work product and made changes to suit my needs?
* Would I use this LNC again?
* Would I recommend this LNC to others?

Do you have another question to add to this list? Send us a question and join the conversation.

From Patricia Iyer and Deborah D’Andrea, “Working with Legal Nurse Consultants”, in Patricia Iyer, Barbara Levin, Kathleen Ashton and Victoria Powell, Nursing Malpractice, 4th edition, 2011

Don’t skimp on branding by Guest author Jena Rodriquez

Pat Iyer — Wed, 18 May 2011 10:28:17 +0000

So many people are getting laid off from their jobs these days, yet instead of getting a new job, they are starting their own business. This is happening to some attorneys. THIS is exciting! I love when the entrepreneurial spirit is alive and kicking. The thing about start ups is that they are “young” and ideal clients want to know that they can trust you to provide them a quality product and/or service.

Think about this…..Who wants to buy your service at the price you are worth if you look like you opened shop yesterday? Who wants to buy your product at top dollar when it looks like you made the packaging and labeling in your basement? People want to do business with people they trust, like and know (and with someone that other people trust).

So how do you create the illusion that you have been in business for long enough and you have the experience to back up your offering? You got it! BRANDING! It is not just about creating your logo and sticking it on a business cards; it is so much more. In order to truly discover, define and deliver on your brand, you must spend some time in inquiry; asking yourself the what, why and who questions. It is about getting clarity and persistent focus and intention on what you wish to promise your audience. THEN your ideal clients will show up!

Learn more about Jena’s unique expertise by attending a webinar on May 25 at 8 PM. See this link for details.

Your million dollar brand by Guest Author Jena Rodriquez

Pat Iyer — Mon, 16 May 2011 10:58:09 +0000

Many times I get the question “What really is branding?” plus, the person asking says, “I am a little embarrassed to ask; it may be a stupid question”. BUT here is the honest truth! LOTS AND LOTS of people do not fully understand the definition of branding. They have an idea, they might have heard the word before, but what does it all mean? So first and foremost, there is NEVER a stupid question. That is what I am so passionate about: educating and helping people to understand BRANDING and how to create one for themselves and their business that truly stands up and stands out. The only way we truly learn is by being willing to ask questions, to seek out the answers and to be authentic. Once the question is asked and then answered, you already are more aware and wiser…just like that!

So let me share a few tidbits about branding. Here are a few definitions and some questions to ponder to help you find your direction:

There are three main kinds of branding: corporate branding, individual branding, and personal branding.
A. Corporate branding relates to an organization that offers services and products and uses their company name as the brand name. They wish to create a strong brand identity for recognition and to build brand equity. (Coca-Cola, Disney). This type would apply to a law firm.

B. Individual branding is when you focus on branding individual products versus branding the company that creates those products. This allows for the products themselves to stand on their own (Proctor & Gamble holds Dove, Unilever and Pampers)

C. Personal branding usually relates to having people and their careers marked as a brand. Think Donald Trump. He has created a brand name for himself just by building his career (Trump Towers, Trump Steaks, etc.) Think Gerry Spence.

Now ask yourself some questions to determine which category you wish to fall into:
1. What are your main products and services that you offer?
2. Why was your company founded? OR Why choose that career path?
3. If you had to describe your company/organization/yourself in one word, what would it be? Why?

Asking some of these questions will help you look at the WHY behind what you’re DOING and the impression your brand must leave on your target audience. Stay true to what you are and you will find your million-dollar brand!

Jena is a successful branding expert who is joining Pat Iyer in a webinar on May 25, 2011 at 8 PM Eastern. Details are at www.patiyer.com