A very big thank you to Rhonda Laumann (http://www.thelaumannfirm.com/) and David LeMaster (http://www.hackettbeecher.com/david-a.-lemaster.html) for presenting on this topic. Here are the notes from that evening:
- Focus opinions in area of expertise. Opinions outside of expertise weakens opinion you were hired to provide.
- Give opinions based on the records and what you know about the examinee, rather than blindly flowing research based opinions, eg, what are the physical requirements of this person’s job?
- Do not personally attack opposing expert. Use the records and exam findings to bolster your opinion.
- Write and speak in language understandable to the attorney, who needs to translate for the mediator, arbitrator or jury.
- Strive to be seen as the neutral source of information, as teacher and educator. Leave advocacy out. Consider donation of percentage of fees to neutralize cross on much you make by performing IMEs. When asked poor question in cross examination (or direct), if the question is not one you can answer “yes” or “no,” consider asking “can I explain?” Beware becoming condescending if using this response.
- If your opinion is that only part of the treatment is reasonable, necessary and related, list those dates of treatment and provider or at least give an actual cutoff date that is supported by the evidence.
- When your opinion is that the examinee does have verified ongoing injuries or limitations but the accident did not cause those complaints, identify the source. Failure to identify the source opens a vacuum for jury speculation.
- Write a report that doesn’t previously exist, eg, don’t write a report I can write or the cross examiner doesn’t have 10 duplicates of already.
- Recognizing that most cases settle, your highest value is clarity. In mediation, when opinion is understandable, has a rational and evidence based opinion, which clearly explains the opinion, parties do not waste time arguing about what your opinion might, could or may be.
- Admissibility of pre-existing conditions is very important to know what you would likely be permitted to testify about and what is likely to be excluded. Courts first start with the question of whether evidence is relevant. Relevant is defined as means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.The most recent case on the issue of the admissibility of prior medical treatment is Hoskins v. Reich, 174 P. 3d 1250, 1256 (2008)
Even if the 1998 x-ray and the 2000 claim of numbness in the right hand were relevant, admission of Hoskins’s entire chiropractic treatment history was error. Reich’s appellate assertion, that because the entire history was relevant to Rody and Colfelt it was admissible, ignores Harris. See Harris, 152 Wash.2d at 494, 99 P.3d 872. An entire pre-accident treatment record is not per se relevant or admissible merely because a physician consults that treatment record. Such a rule would vitiate Harris.
Similarly, Reich’s assertion that Hoskins’s prior treatment record was relevant to show “a pattern of periodically using the chiropractor prior to the accident” is likewise unsupported. Br. of Resp’t at 16. The periodic use of chiropractic services before an accident, without more, does not establish proximate cause or affect damages, even if a similar pattern is repeated after the accident. Only evidence of a symptomatic condition immediately before an aggravating accident is admissible on the issue of proximate cause. See Harris, 152 Wash.2d at 494, 99 P.3d 872. And only evidence of the natural progression of a preexisting condition is relevant to damages. See generally Bennett v. Messick, 76 Wash.2d 474, 478, 457 P.2d 609 (1969) (asymptomatic and latent, but dormant, preexisting conditions do not affect damage awards). No fact that was of consequence to the determination of cause or damages was made more or less probable by the admission of Hoskins’s entire pre-accident treatment history. See ER 401. Thus, the trial court’s admission of the pre-accident treatment evidence was an abuse of discretion.
- There are 7 new judges on King County Superior Court- many who do not have a strong trial background.
6 thoughts on “Notes from the Mediator Talk – 1/17/2017”
In New South Wales, for example, when the parties cannot agree on a mediator, the registrar contacts a nominating entity, such as the Bar Association which supplies the name of a qualified and experienced mediator.
Finally, the mediator should restrict pressure, aggression and intimidation, demonstrate how to communicate through employing good speaking and listening skills, and paying attention to non-verbal messages and other signals emanating from the context of the mediation and possibly contributing expertise and experience.
Great post. I’m confronting a couple of these issues.
Thank you for the effort, keep up the good work Great work.
That is common in the various jurisdictions covered by this association. Thank you for your comment!
In some court-connected mediation programs, courts require disputants to prepare for mediation by making a statement or summary of the subject of the dispute and then bringing the summary to the mediation.