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Welcome to Jersey Justice, a civil law podcast that shares

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practical tips and stories about personal and workplace injuries.

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Joined two of the brightest New Jersey injury attorneys, Gerald Clark

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and Mark Morris of Clark Law Firm.

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As they take you behind the scenes of.

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Justice and civil law.

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But first, a quick disclaimer.

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The information shared on this podcast is for general information purposes only.

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Nothing on this site should be taken as legal advice for any

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individual case or situation.

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This information is not intended to create and does not constitute

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an attorney-client relationship.

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Hello everyone.

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Welcome back to Jersey Justice, and today we're gonna be talking

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about understanding expert witnesses and the art of the testimony.

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So welcome back, mark and Jerry.

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I feel like I haven't seen you guys in a while, but you know what?

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It was just a little bit ago and we're gonna be talking about.

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Expert witnesses, which is a huge part when it comes to personal injury

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cases and workplace injury cases.

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All right, we're gonna go over to Mark first, and I wanna know from

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him, you know, what is the importance of understanding the type of expert

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witnesses to use in particular cases, and what are some of the things we're

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gonna be covering in this episode today?

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Mark Dimple.

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Thanks.

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Good to see you.

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You're right.

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I think it kind of has been a little bit so.

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Not every case needs an expert witness, but a lot of the times when we do go

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out and get an expert witness, the, the standard in the law is that it's

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when there's subject matter that's beyond the kin of an average juror.

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I don't know why they use that terminology again.

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I think it's k e n, it's pronounced like kin, but it's like Ken,

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like the Ken Doll from Barbie.

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And usually if I explain to a client or you know, why we need an expert

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is, you know, if someone goes and breaks a bone, I can stand up there

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and I can say, you know, ladies and gentlemen, this client has a broken bone.

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I'm not qualified to do that.

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I need somebody who is an expert in the field of, in that case, if it's

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a broken bone, orthopedics, most likely to talk about that injury.

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And so the standard in New Jersey is pretty, pretty broad.

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It's pretty awesome actually.

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You can be an expert through training without practice or

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through practice, without training.

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And kind of my understanding of, of how that plays out is I've had times

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where I have an orthopedic surgeon.

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That ends up talking about a plastic surgery issue and the defense gets

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up and objects and says how, you know, how can he talk about that?

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He's not a plastic surgeon and although he doesn't practice in plastic surgery,

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he can testify that he had training in medical school during his residency

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where he was exposed to plastic surgery.

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And a lot of times that will get you over the bar in, in New Jersey, but,

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So most of the time in cases to be a witness to go in and testify, you

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have to have firsthand knowledge.

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You have to have actually perceived an event.

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You have to have, you know, either saw, smelled, heard, whatever.

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It's not just gonna be any old person that can come in and testify,

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but with experts, they don't have to have firsthand knowledge.

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They can rely on materials that people typically rely on in their field, and

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they can rely on hearsay, which, you know, if you don't know much about

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law, you probably at least know the term hearsay and medical experts can

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rely on hearsay to form their opinions.

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So there's no kind of hard and fast rule when we get an expert,

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most of the time for damages.

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What the injury is, we'll get an expert, especially if it's a verbal threshold case

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because there's certain, I guess, hurdles we have to get over that we usually would

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use an expert for, but so for damages more often, and then liability, it has

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to be a specific type of case where we, we'd go out and get a liability expert.

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Thank you for sharing that.

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And you know, I'm gonna go over to Jerry and I wanna know from him, you

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know, what are some of the things that you're gonna be sharing today on this

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episode, and why is it so important to understand, you know, the different

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types of expert witnesses and how to even pick the right one for the case.

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I.

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Yeah, thanks, dimple.

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Yeah, so when we have like a personal injury case, you know, a lot of

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times it, like Mark said, it involves areas that might be complicated,

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you know, and the, and the jury has to make certain decisions.

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Like kind of Mark talked about is how bad is the injury?

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And in an injury case, if you wanna prove that the injury's permanent, usually

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you need an expert, a medical expert.

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So if someone hurt their spine, for example, and it's a herniated disc

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or something wrong with the disc, you can't just rely on like, you know, a

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lawyer or the witness, the client or the client's family or something to say yes.

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And the injury to the spine is permanent.

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You, you know, for something like that, you would need a medical expert.

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And also whenever you have a personal injury case like.

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And the defendants are almost always represented by insurance companies.

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So it's a whole industry defending cases, collecting insurance premiums,

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and generally speaking, insurance companies don't want to pay out claims.

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They want to pay out as little as possible.

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They want to collect their premiums, you know, which is what you pay

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every month for your insurance.

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They want to collect that money, but they don't want to pay out claims.

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So they have this whole system set up.

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To prevent doing that.

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As far as doctors go, the insurance company has a whole menu of doctors.

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You know, in kind of relatively recent years, the medical field has

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gotten more difficult for doctors.

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You know, it's harder because they have to fight the, you know, Medicare or fight

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the insurance company and, and to get paid and the rates get are, are less.

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And there's so many problems in that regard where doctors generally

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speaking are making less money.

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So, To get on a list of an insurance company where they testify in court

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for defendants in insurance cases that can be more lucrative and simple.

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So these insurance companies have so much money and, and they have a whole

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list of doctors at their disposal.

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And so a plaintiff in a case, also, if you're bringing a case, you have to prove

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that the injury you're claiming at trial.

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Was caused by what you're suing for.

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So if it's car crash, you have to prove that the injury's permanent in

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a lot of cases, and you have to prove that the injury is from the car crash.

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So these insurance companies have all these doctors at their disposal that

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pretty much in every case that we've seen will minimize the injury, will

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say the injury is not from the crash.

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So for example, if you have a spinal injury, we've seen

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it in cases, you know where.

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In New Jersey, we've seen cases where the plaintiff could be like 12 years old or 14

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years old or something, and they get in a car crash and have a spine injury, and the

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insurance doctor will get up in front of a jury or write a report and say that it's

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a preexisting injury, meaning the injury to the spine is from God knows what.

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But it's not from the crash, and therefore you shouldn't award any money.

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And they also do it in people that are in their twenties,

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thirties, forties, fifties.

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And you can be darn sure they're going to say that in people that are in their

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fifties, sixties, seventies, that the injury to the spine is not from the case.

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So it's funny, you know, because people have their, their idea of court and

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civil justice and the system, but behind it, there is a whole industry.

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There are.

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Uh, expert companies that ha that service the insurance industry that

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have experts at their disposal.

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What does this mean as a practical matter if you're in a car crash?

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And you know, you have the burden of proving the case.

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You have the burden of proving you were injured from the crash

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and that it was caused by the crash and that it's permanent.

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So during the case, they're gonna send you to a defense medical exam, which is

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where you have to go to the office of the doctor for the insurance company.

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And inevitably, you know, so then they're gonna examine you and they're

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almost always gonna write a report.

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That downplays the injury that says, for example, the injury's not from the crash.

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And if they have an injury that, that they can't with a straight face or

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without looking in to, totally ridiculous.

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Now, often they'll give totally ridiculous testimony.

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It's not a problem for them because they're going to get paid.

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A lot of these doctors make six, seven figures a year.

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Are paid by insurance companies to testify in court.

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So they often say stuff that's completely ridiculous, but it does because it doesn't

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matter because they're still going to get paid a lot of money for doing it.

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They'll say for their time for doing it, but, It's a little bit

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of splitting, splitting hairs.

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So, uh, yeah.

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So they're gonna come to court and they're going to say that the injury is, is not

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from the crash, downplay the injury.

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And, and we, we see it so much when we talk about expert

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witnesses and, and expert.

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We, we could, I could, we could go on for days about it.

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So that's just one little example of how it works.

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Yeah.

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And dimple, if I could kind of jump in like.

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Jerry said the defense reports, it gets to a point where like

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we feel like we could write 'em.

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It's almost always, it's preexisting, it's degenerative, it's not related to

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the crash, whatever the injury may be.

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And if you do have a bad injury, a lot of the times the defense doctor, they

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can't even say with a straight face, oh, that is preexisting degenerative.

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They'll say that the subjective complaints of pain don't match

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up with the objective findings.

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Which is just a couple fancy words or a few fancy words to say the

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person's lying or faking their injury.

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And it's, you know, we've talked about it.

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I could probably count on one hand in the amount of zero of clients that I've

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had where they're faking or malingering or what, but that's almost, that's,

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that's a defense in these cases.

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And a lot of times too, the defense doctor.

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We'll have spent 20 minutes or less with the client or with our client to do,

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you know, history, review the medical records, perform a physical examination,

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and then they send them out the door.

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They testify at trial.

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They wouldn't be able to recognize the person on the street, you know, they again

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spent less than 15, 20 minutes with them.

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And again, preexisting degenerative, or if they're not saying that,

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then they're saying they're faking, exaggerating, or what.

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So a lot of times it turns into a battley expert when the injury's

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so bad that they can't, they can't.

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Contest.

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So like if there was a broken bone, like a fractured bone in the car crash, they'll

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say, yes, they had a broken bone, and then they're gonna say they were treated

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appropriately and had an excellent result.

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Yes.

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So even if there's a broken bone with surgery, they're

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gonna say there's no residuals.

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They've had a broken bone, it was a temporary injury, and now they're fine.

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They say it in almost every case.

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And as Mark was alluding to, they will frequently.

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Probably more than 60, 70% of the cases.

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See if the defense attorney gets up in trial and tells the, and tells

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the jury that the plaintiff's a liar, they're a malinger, they're a fraud,

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that's a little too edgy, and the defense attorney will be concerned

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that it will backfire and they'll start to feel bad for the injured person.

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So the way they do it that we've seen it, is they float it.

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They suggest it and they'll say, you know, so like Mark said, the doctor will

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say, yes, the objective signs of injury do not match the subjective complaints.

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Basically, they're saying that they are a liar, and if you come to court or you

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testify in a deposition that, yes, I have these injuries, this is what happened

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to me in the crash, and then the doctor.

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The doctor gets on the stand and says, those injuries are not from this crash,

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and they don't have the injuries.

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They're saying they're calling them a liar.

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And if a person lies, To win money in a lawsuit, they're cheating.

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And if they lie to win money in a lawsuit or to get a compensation

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in a lawsuit that's against the law, it's actually a crime.

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So they're a fraud.

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So when these doctors, and they do it in, I would estimate more than

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70% of the cases we've seen, we've had people get fusion surgeries.

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We've had young, young people get bad injuries, and the doctor.

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We'll go to the the defense medical exam and they will say

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the subjective complaints don't match the objective injury.

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When they say objective, they mean it doesn't match the MRI or

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it doesn't match the x-ray, or it doesn't match like an EMG test.

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And what they're clearly saying without calling 'em a liar, cheating

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a fraud, is they're saying they are a liar, cheating a fraud by saying

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they're, they're exaggerating.

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It's kind of like the doctors and the defense attorneys in, in these cases.

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They're just, they're just sort of like tapping into the worst in people.

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They're tapping into the worst in humanity.

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They're probably lying and they're tapping into those kind

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of predispositions with jurors.

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So, you know.

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In America, the, the system's not perfect.

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You have people that are guilty, are found innocent, and you have people that are

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innocent and found guilty and you very, very, very often because of the money and

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the power that these insurance and big corporations have that defend these cases.

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They win these lawsuits and people get nothing that are severely injured

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through no fault of their own because jurors actually believe these doctors

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with these Yale degrees or big time.

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I meant medical degrees getting up there, basically calling

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the plaintiff a malinger.

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And if you get the reports, we've done this too from time to time.

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If you subpoena and fight them and get their reports, say that

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they wrote in the last two years in in injury cases, you'll find.

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The reports will say essentially the same thing in every case, and, and

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they'll often use like the same wording.

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So in many ways it can be like a racket.

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Yeah.

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Jar.

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Am I sounding too cynical here?

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I'm sorry.

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Should I?

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No, I mean you or am I just it like it's, you've been doing it

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long enough to be cynical about it.

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I'm cynical and you know, I think actually today's my eighth year anniversary.

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I remember, and you asked me this in another podcast

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in like, why'd you remember?

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And I remember when I was at, when why'd you become a lawyer?

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And like, what, when I, I remember when I was a defense lawyer, I would get these

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cases thrown out or I would take these depositions and I would just feel like I

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needed to take a shower after it, because I was like, geez, I, I just didn't feel

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too good because, you know, so when you have this kind of situation where

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you have a person that's legit injured, Through no fault, you know, rammed in

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the rear and a car crash or something.

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And then you have these highly qualified medical doctors that are sick of fighting

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insurance companies for treating patients.

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And then they decide to become a professional testifier

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and jurors believe it.

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It's like another, another plaintiff's case down the tube and another

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person was cheated out of a recovery.

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It can make you cynical in, in some ways.

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So, yeah.

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And.

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Just got to add on to that.

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You know, door number one is preexisting degenerative, not

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related to the crash door.

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Number two is subjective.

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Complaints don't match objective, you know, evidence.

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A, k, a, they're liar, cheater, malinger, fraud.

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And then door number three is, yes, they were really hurt.

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Yes, all the scans show they were hurt.

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But they made an excellent recovery, like they're doing great and I'm gonna beat

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Jerry to it unless he's ready to do it.

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But we tried a case where a young guy got his legs snapped in half,

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and the way the bone healed, it healed on top of each other.

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I think it's called an Abe.

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Fashion, it healed like that.

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And the defense doctor's testimony was that, oh, he made an excellent

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recovery and Jerry held up the, em, the x-ray of the films where the bone is

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literally healed on top of the bone.

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He's like, oh, well that, you know, that can happen.

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That's okay.

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That's, you know, no, he, he didn't say it can happen.

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It was, he said, I remember it was like you just said, it was like this.

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And he called it, I'll never forget it, it's in perfect anatomical alignment

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and you had one part of the bone over and, and see perfect analytical.

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That's why, that's like what I was saying, how they can say stuff that's completely

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ridiculous, but it doesn't stop them.

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I mean, it was completely deformed.

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It was obvious and perfect anatomical alignment.

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So yeah, so ple the, the reason the defense use these doctors over and over

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and they get paid hundreds of thousands of dollars, if not, you know, million.

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Millions of dollars to testify is because they present well.

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They did like, it's like Jerry said, it's a game and the jury just sees this

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guy who's got a, a great degree and you know, a long history of working in the

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field and he presents well at trial.

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But at the end of the day, they're always, they're for the most part,

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almost always saying the same thing.

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And I've had, I had a case, remember I tried it.

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I tried it with another attorney, and we were doing our due

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diligence on the defense doctor.

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And the defense doctor had gone to medical school in Mexico.

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Which it happens.

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I know a lot of people go to school abroad for medical school, but so this

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defense doctor had gone to school in Mexico and we asked him what language

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were the class classes taught in?

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And he said Spanish.

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He said, doctor, do you speak Spanish?

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No.

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How did you take the exams?

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Well, I, I just tried my best.

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So this guy had gone to a medical school in Mexico.

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There were classes were taught in Spanish, and he didn't speak Spanish.

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He got his medic medical degree.

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And I think at the time it had been like decades since he had treated patients.

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But again, the jurors just see this.

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Doctor who presents well if we beat 'em up too much.

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Oh, poor doctor.

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So it's, it's a fine line where like Jerry and I have been talking,

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you can tell how animated we are.

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We see the game time in and time out.

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A lot of times for the jurors, that's the only exposure they're

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getting to seeing a doctor testify.

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And it's almost unbelievable that someone would come in with the degrees

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they have and just say things that are, you know, from our view, so ridiculous.

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But.

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Yeah, that's, I mean, that's crazy, mark.

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I mean, that, that happens and I mean, this is why we're doing this podcast

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is to educate people on really, almost like what happens behind closed doors

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when, you know, like everything that leads up to finishing a case and, and

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doing all this work on the back end, because I don't think people understand.

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So the thing is too, so some people looking at it like Mark, Mark says, well,

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the doctors, they say it in every case.

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And then maybe some skeptical people might be like, well, maybe every case is bs.

Speaker: 00:18:04

Maybe every, maybe they are liars, malinger as frauds in most cases.

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So here's the reality of the situation when we do this work,

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like when plaintiff's attorneys, justice attorneys do cases like

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this, we do them on contingencies.

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So we don't get paid unless we win the case.

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And on an auto case, like an auto crash case where someone's been hurt, The cash

Speaker: 00:18:26

that has to be put out on that case to bring it to trial can be anywhere from

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like 15,000 to $50,000 plus in cash.

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And a lot of time because these experts get paid a lot of money, so the

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insurance companies fight the really good cases hard in our experience.

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They're always trying to pay.

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As little as possible.

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So even, even the good cases are really hard and we're not gonna take

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our, our time and, and risk our time and all our money on, on a bad case.

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And like I said, the good cases are hard enough as they are.

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But the other thing is, let, let me try my hand a little bit at, at like hosting

Speaker: 00:19:06

the podcast or let me just ask a question.

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So like, We, we've been at this for maybe 15, 20 minutes or so,

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and it's like, oh, doom and gloom.

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So maybe Mark can talk about, well, how do we counter this?

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How do we bring justice to people?

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How do we deal with these, with these experts that say the same thing that are

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paid, you know, six and seven figures.

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For the pick, you know, the defense attorneys, they

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pick and pay for the expert.

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How do we, what's the best way to counter that?

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What have you done?

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So a couple, there's a few things that we do.

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Number one, you know, in most cases what we do, and there's a case out there

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right now on the issue whether you can still do it going forwards, but we send

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a nurse to the medical examination.

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We think that that's really important oftentimes, and the nurse, it doesn't

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even necessarily need to be a medical nurse, it's a third party observer

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that sits in on the examination.

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Because a lot of times what will happen is it's just the defense doctor

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and our client, and it's like we've talked about in the past, it's like

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sending a sheep to a pack of wolves.

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These defense doctors just rotate through, you know, case after case.

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They don't care one bit about this person who a lot of times their

Speaker: 00:20:16

future livelihood is, is on the line.

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So what will happen is, say it's a shoulder injury, they'll, the patient

Speaker: 00:20:22

will try and lift their arm up like that.

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They'll grimace, they can't do it.

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The defense doctor will write in the report, full range of

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motion and shoulder, no issues.

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You know, totally fine.

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Normal examination where when we send a nurse, what the nurse typically does is

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she'll sit there and she'll take notes.

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And she'll accurately observe what happens.

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So she'll have, in her notes, could only raise shoulder

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this high, complain to pain.

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And if that's not in the doctor's report, we can use that at the

Speaker: 00:20:49

time of trial to cross-examine him.

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And we find that that's very effective.

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We find that a lot of times the defense doctor's reports

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will be more favorable to us.

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Than they are a lot of times to, to other firms or they've been in the past.

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And the theory kind of on our part behind that is because we

Speaker: 00:21:08

have that third party there.

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If this doctor's doing 200 reports a week, he gets to ours and he says, all

Speaker: 00:21:13

right, well they had a person there.

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Whatever.

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I won't go as hard on this.

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You know, hundred 99th report.

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So we think that that's pretty helpful to try and combat these defense doctors.

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If we do our homework, a lot of times what we've got is we've

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got transcripts on the doctor.

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Because what happens is it's usually not the first time this doctor's

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testifying in court and someone else has, examined him beforehand, gotten

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testimony about how often he testifies, how often he testifies for the defense.

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What percentage of his practice is devoted to doing, A lot of times

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they call him forensic examinations.

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They're defense medical exams, but so what percentage of his practice is devoted to

Speaker: 00:21:50

that and how many times like he's, he's concluded there's a permanent injury.

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And in auto cases, that's kind of the key.

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Like is there a permanent injury?

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And a lot of times the defense doctor can't recall a single case.

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Or they found that there was a permanent injury.

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You know what's funny about this dimple too?

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So you, you want to hear like, so a lot of this, hey, let's get

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some behind the scenes stuff.

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Cause people see what they see on court TV or whatever it is, or they're

Speaker: 00:22:15

maybe limited experience in, in the justice system, but there is a whole

Speaker: 00:22:20

bunch of stuff behind the scenes.

Speaker: 00:22:21

So the, the way this works, like you think, oh, I have a trial.

Speaker: 00:22:24

First of all, a TV trial.

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When you have a TV trial, The courtroom's filled with people, okay?

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In most of these auto cases, there's no one in the courtroom other than

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the people involved, and maybe a couple people observing if that.

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Sometimes the next witness that's gonna testify is sitting,

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sitting in the courtroom.

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But in a TV trial, it's like, oh, this is a big thing and this is all

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over and everyone cares about it.

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Usually it's not that way.

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And here's the other thing, you know like in the TV trial, like, oh, the

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witnesses know all about the case.

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They know the parties well.

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This has been engulfing their lives since this situation has happened and

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they've been ready rating to testify.

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So you want the behind the scenes part of these critical medical

Speaker: 00:23:06

expert witnesses for the defendants.

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Like Mark said, typically the defense expert will schedule days of

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the week and they'll see 20 to 30.

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Injured people like plaintiffs in personal injury cases a day, they'll bring 'em

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through like it's a mill by the time it gets to trial, and then they'll,

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and then they'll write a report after.

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But the reports are very much template and there's procurement

Speaker: 00:23:33

companies that procure all these experts for the insurance company.

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And if you Google, you'll see them there.

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And then they provide the expert to the insurance company.

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And guess who's like providing the report or amending the report?

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It's the procurement company.

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And we even suspect that in some situations if the expert report doesn't

Speaker: 00:23:54

write what the procurement company wants, Which is what the insurance company wants.

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They will amend the report and in a lot of times, we suspect the doctor's

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never gonna know anyway, because by the time it gets to trial, he's gonna

Speaker: 00:24:07

have no idea who this person is that he examined, he or she examined.

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Like Mark said, they couldn't pick him out of a lineup at all.

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And all they're doing is basically going off the report and whatever

Speaker: 00:24:19

medical records records are there.

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And you, you want to hear the funniest thing about this whole situation, dimple.

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Guess.

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Guess what?

Speaker: 00:24:26

The defendants, when they get up in front of the jury, what they refer to

Speaker: 00:24:29

as the doctor hired by the insurance company that's picked and paid by

Speaker: 00:24:33

the insurance company to write a report about the injured plaintiff.

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Guess what they call these people, can you guess?

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I have no idea.

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Do they call them?

Speaker: 00:24:42

God?

Speaker: 00:24:42

I don't know.

Speaker: 00:24:44

They call them independent medical witnesses.

Speaker: 00:24:48

They try to say that this doctor that's picked and paid for by the insurance

Speaker: 00:24:51

company is independent, and they'll tell the jury, you're gonna hear from Dr.

Speaker: 00:24:56

So-and-so, and Dr.

Speaker: 00:24:57

So-and-so performed an independent medical exam as if, as if like the court.

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Uh, a pick that picked a doctor to give an independent.

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That's the craziest part about it.

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So I actually, I wrote an article that was published in the Law journal

Speaker: 00:25:12

that was entitled, there's no such thing as an Independent Medical

Speaker: 00:25:15

Examination in, in New Jersey.

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The way they're doing that, I think that's effective period.

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What, what we've done, what we've done in these cases.

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So like Mark said, It, it, we don't always send a nurse to the exams.

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It depends on the case and stuff, but often when we send the nurse and, you

Speaker: 00:25:32

know, the defense doctor will walk off the stand and like Mark said, the doctor said

Speaker: 00:25:36

yes, they raised the shoulder, no problem.

Speaker: 00:25:38

Full range of motion and actually have some testimony here.

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Question, and this is my questioning of the nurse that appeared at the exam where

Speaker: 00:25:48

the plaintiff, the, the defense doctor testified when he touched the shoulder, he

Speaker: 00:25:52

complained of pain all over the shoulder.

Speaker: 00:25:54

Did that actually happen at the exam?

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And the nurse testified?

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No, it did not.

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Describe what happened at the exam.

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Where did he touch the shoulder and what actually happened on that?

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He touched it right on his Deloid area, and that's where it hurt.

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It wasn't all over.

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He specifically said the proximal area.

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It's just crazy.

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And Mark, mark said It's a game, or he referred to it as a game.

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I don't really necessarily agree or think that's the best thing

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to, it's not really a game.

Speaker: 00:26:20

It's, it's like a serious.

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Search for the truth.

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It's a serious attempt to extract justice from a system that in many ways can be

Speaker: 00:26:31

inherently unjust and we're, our job is to try to extract some justice out of it.

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And it's, it's, it's sad.

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I mean, it's sad that you would have his doctors get up there.

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And say that.

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And then the other thing the defense doctors will often do, and they'll say,

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oh, the plaintiff campaigned of pain all over, no matter where I touched

Speaker: 00:26:49

him, and they'll testify to that.

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When I did the exam, the plaintiff campaigned of complained of pain

Speaker: 00:26:55

anywhere I touched him, as if they're, Ooh, that hurts, and ooh, that hurts.

Speaker: 00:26:58

So I asked the question in this case, And defense doctor also testified

Speaker: 00:27:03

that wherever you touched him on the body, he said, oh, that hurts.

Speaker: 00:27:06

Pain here, pain there.

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Did that ever happen at the exam?

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Answer, no, it did not.

Speaker: 00:27:11

And did plain plaintiff ever complain of pain all over his body?

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That is diffuse pain, answer.

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No, he did not.

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So that's kind of one of the ways that we counter that, is to try to get a nurse.

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To the exams to observe the exams, take notes and record the exams.

Speaker: 00:27:28

Yeah.

Speaker: 00:27:28

And ple, just one more thing you can tell, we could talk about.

Speaker: 00:27:31

It's funny, I think we're supposed to talk about experts in these cases

Speaker: 00:27:34

and we've ended up talking about defense experts, so you can see

Speaker: 00:27:38

kind of our, our feelings on it.

Speaker: 00:27:39

But it, it's interesting cuz a lot of times at trial, a big no-no

Speaker: 00:27:43

is like, in some states you can say, ladies and gentlemen, the

Speaker: 00:27:46

jury, my clients really hurt.

Speaker: 00:27:48

Award her, you know, $5 million.

Speaker: 00:27:50

New Jersey, you cannot do that.

Speaker: 00:27:52

You can't suggest a number to the, to the jury.

Speaker: 00:27:55

It's a big no-no, like talking about numbers.

Speaker: 00:27:57

But when it comes to expert witnesses, you are allowed to

Speaker: 00:28:00

talk about how much they get paid.

Speaker: 00:28:02

And that's because it, it goes to their credibility.

Speaker: 00:28:05

It's fair for the jury to consider the fact that, hey, Mr.

Speaker: 00:28:08

Defense expert that's coming in here making $800,000 a year saying, you

Speaker: 00:28:13

know, the herniated disc is preexisting, degenerative, not related to the crash.

Speaker: 00:28:17

And oh, in fact, there's no herniation.

Speaker: 00:28:19

It's just a sprain strain, and they got better.

Speaker: 00:28:21

Excellent recovery.

Speaker: 00:28:23

Subjective complaints don't match with the objective evidence that,

Speaker: 00:28:25

that guy's making, you know, hundreds of thousands of dollars a year.

Speaker: 00:28:28

Saying the same thing so the jury can actually consider finances

Speaker: 00:28:32

and, and money in that situation.

Speaker: 00:28:34

, so the thing is, and I, we might be going a little over time here, but like, I

Speaker: 00:28:37

remember the Brady Bunch and I don't know how many people remember the Brady Bunch.

Speaker: 00:28:40

You have to be a certain age for that.

Speaker: 00:28:41

But that was a TV show, and if you Google it, there's the,

Speaker: 00:28:45

there's the scene where the dad.

Speaker: 00:28:47

Mr.

Speaker: 00:28:48

Brady, he hit someone in a car and the person was in court with, with

Speaker: 00:28:52

the big collar around the neck, and uh, and he was clearly faking.

Speaker: 00:28:57

It was a big thing.

Speaker: 00:28:57

And then Mr.

Speaker: 00:28:58

Brady, after he testified, after the plaintiff testified, he threw

Speaker: 00:29:02

his, his suitcase, his his briefcase down, and, and everyone looked

Speaker: 00:29:06

back, including the plaintiff who said he couldn't turn his neck.

Speaker: 00:29:09

And I swear to this day, that kind of comedy and humor, I swear to this

Speaker: 00:29:15

day, that kind of thing, haunts.

Speaker: 00:29:17

Trials and that kind of thing is in people's heads and they think

Speaker: 00:29:21

the plaintiffs are, are faking it.

Speaker: 00:29:23

So, you know.

Speaker: 00:29:25

Yeah, that's, that's another part of this.

Speaker: 00:29:28

I don't know if you can tell through my voice or my face if

Speaker: 00:29:31

you're seen here, but I'm a little bit young for the Brady Bunch.

Speaker: 00:29:34

But I have like a vivid memory from as a kid, and I don't know why the

Speaker: 00:29:39

heck this would've stood out or I even would've cared back then, but

Speaker: 00:29:42

seeing that exact clip like that or seeing that exact episode, I didn't

Speaker: 00:29:46

watch the Brady Bunch regularly.

Speaker: 00:29:47

I probably was like, I don't know, I watching TV land or something.

Speaker: 00:29:51

But I remember that clearly.

Speaker: 00:29:53

I think they like were backing out of a spot at the grocery store

Speaker: 00:29:57

or something, and I remember he drops a briefcases guy turns.

Speaker: 00:30:00

But you're right, like I feel like there's probably Simpson's episodes about it.

Speaker: 00:30:04

Any pop culture thing talks about, oh, frivolous lawsuit, frivolous.

Speaker: 00:30:09

Like Seinfeld has the Kramer getting burnt by hot coffee, and I think

Speaker: 00:30:13

instead of taking a settlement, he takes a lifetime supply of coffee.

Speaker: 00:30:16

But you know, you laugh at it, but it does, it, it kind of permeates into

Speaker: 00:30:20

what we do now still, and, and I'm gonna give a little bit of a plug.

Speaker: 00:30:23

We talk about, we send these nurses to the exams.

Speaker: 00:30:26

I can tell you that not all law firms do that.

Speaker: 00:30:29

We, we do it in, in a lot of our cases, we will send a nurse.

Speaker: 00:30:34

In many, many of the cases, but it's not necessarily a standard thing that's done.

Speaker: 00:30:38

So I'm gonna give a little plug.

Speaker: 00:30:40

I think you have a better chance of winning your case if you send

Speaker: 00:30:42

a nurse to the defense medical exam and, and we usually send one.

Speaker: 00:30:47

Yeah, cuz what I said before, like it, we get better reports, but Jerry's

Speaker: 00:30:51

talked about the, the defense guy with these fancy degrees who presents

Speaker: 00:30:55

really well, gets up there, gives his whole testimony, spiels walking down

Speaker: 00:31:00

the jury who's, you know, mesmerized.

Speaker: 00:31:03

If on the heels of that, we have a nurse that we can call up to totally

Speaker: 00:31:07

rebut everything he just said, you know, when it's appropriate, when the

Speaker: 00:31:10

situation actually warrants it and, and, you know, it's, it's accurate.

Speaker: 00:31:15

It just totally takes the wind out of the sails from that thing.

Speaker: 00:31:18

So it's just really effective to go.

Speaker: 00:31:19

I love that because you know, when you have, when you're dealing with

Speaker: 00:31:22

that, there are people can, they can put on an act, they can put on a show

Speaker: 00:31:25

and you know, to the average person who doesn't know everything, right?

Speaker: 00:31:30

They can be fooled by it, but you guys are lawyers, obviously.

Speaker: 00:31:33

You know, you, you know what's going on and you know how to counteract that.

Speaker: 00:31:37

And by the way, I am older than Mark cause I do remember that episode.

Speaker: 00:31:40

And, and it was funny cuz yes, in court, you know, turned his

Speaker: 00:31:44

head, you know, to pick up the drop thing and it's like busted.

Speaker: 00:31:48

Totally busted.

Speaker: 00:31:49

So that's where all that you know comes from.

Speaker: 00:31:52

But, but I mean, but that was like back in like, I don't know,

Speaker: 00:31:55

was the eighties or something.

Speaker: 00:31:57

So you can see how in society this just is a trend goes on and on.

Speaker: 00:32:03

So, Jerry kind of gave, and again, it's, it's a funny mix of we want to

Speaker: 00:32:07

be telling people about how the law works or , a lot of what kind of we do

Speaker: 00:32:11

as an as attorneys and not have it be such a plug, but sometimes you can't

Speaker: 00:32:15

help it just talking about everything.

Speaker: 00:32:17

And so Jerry talked about how we kind of, we send a nurse to these exams.

Speaker: 00:32:20

A lot of the times that does not seem to be the industry standard.

Speaker: 00:32:25

It doesn't seem like a lot of law firms are doing that.

Speaker: 00:32:28

We do think it's important when the case warrants it, you know, That it makes

Speaker: 00:32:33

sense to do it, but I, I see that a lot.

Speaker: 00:32:35

And Jerry does arbitration sometimes, you know, where he

Speaker: 00:32:38

sees a lot of different attorneys.

Speaker: 00:32:39

And with Zoom, we're not in court as much, so I, I'm not around as many

Speaker: 00:32:43

different attorneys as it used to be.

Speaker: 00:32:45

And the other day I was in court for a pretrial conference, a

Speaker: 00:32:48

conference before a case got going.

Speaker: 00:32:50

And I was talking to a defense attorney who I potentially have a trial coming

Speaker: 00:32:54

up against, and he was free that week.

Speaker: 00:32:57

He was supposed to have a trial, and he said, oh, but the,

Speaker: 00:33:00

the plaintiff signed a step.

Speaker: 00:33:02

And I was like, what do you mean by that?

Speaker: 00:33:03

And the plaintiff's attorney in that case had signed a stipulation

Speaker: 00:33:07

of dismissal for his case rather than take the case to trial.

Speaker: 00:33:11

And I was like, how deep into the litigation they'd litigated the case for

Speaker: 00:33:14

years, he'd spent, you know, time, money, gotten an expert, and rather than try

Speaker: 00:33:18

the case, he voluntarily dismissed it.

Speaker: 00:33:21

I think I would have to sprint out the door if I ever called Jerry and

Speaker: 00:33:25

told him that I did that unless I had some darn, darn good reason.

Speaker: 00:33:30

And, and then I'd, I'd sprint out behind him and tackle him, and then we'd be

Speaker: 00:33:34

rolling in the dirt if he did that.

Speaker: 00:33:36

Yeah.

Speaker: 00:33:36

It's something that I can't e that I can't even fathom, and I know

Speaker: 00:33:39

it's not really related to experts.

Speaker: 00:33:40

I could tie it back in and say, when the case does go to trial.

Speaker: 00:33:44

Again, we, we'll do our homework, we'll make sure we have whatever we

Speaker: 00:33:46

need on, on the expert, but the idea of getting a case at the doorstep

Speaker: 00:33:50

of trial and then just saying, oh, we're, we're just gonna get rid of it.

Speaker: 00:33:53

That's, that's not how, that's not how we litigate.

Speaker: 00:33:56

So from little things, we don't think it's little, but like sending a nurse

Speaker: 00:34:00

to a defense medical exam to not saying, okay, I give up on the eve of.

Speaker: 00:34:05

Eve of trial.

Speaker: 00:34:06

I, I just think I, that's how we litigate and it's important.

Speaker: 00:34:10

So Mark, thank you for sharing that.

Speaker: 00:34:11

You know, I do have a question.

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So do you do any additional research to, to really just expose the experts to have

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more data and information to go off of?

Speaker: 00:34:22

Yeah, a lot of times I think I, I talked about, I don't know if I'd

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called them frequent flyers, but a lot of times we've dealt with many

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of the defense experts in the past.

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So I usually start by looking in, in our system at old cases, maybe cases I've

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had or someone else in the firm has had to see if we have any transcripts from

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that doctor or reports from that doctor where they had said the same thing.

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And a lot of times when transcript, either they've testified at

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trial or they've been deposed.

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And when a deposition is taken, a transcript's written up, the doctor's

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placed under oath, and a lot of times there's transcripts either in our

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system or if we, if we don't have transcripts, we, we can kind of go into

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a, a network with other attorneys and potentially see if they have transcripts.

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So trying to find statements that the doctors made under oath, uh, is usually

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a lot of a big part of the homework that I would do before I'm going to trial

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against a defense expert because again, the things we talked about before.

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You know how much they're paid, how frequently they testify for the defense.

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I mean, we've had cases where the guy's been in the courthouse.

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The same day for two different cases, just going down the hall,

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likely saying the exact same thing.

Speaker: 00:35:30

So pulling transcripts, pulling old reports.

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There's something called jury verdict research that's like when you go and

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research case law through a system, they have a collection of cases

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where it kind of gives a value range of what the case might be worth.

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A lot of times I think of it as like a, a Google review.

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You're not gonna go and put a case in jury verdict research unless

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you had a really good experience or a really bad experience.

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So a lot of times it can be somewhere in between but, or give you an accurate view.

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But that jury verdict research sometimes will list the defense

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experts as well and give you a little blurb about what the case was about.

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And almost all the time we would find in those jury verdict research kind of.

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Statements, the same blurb that Dr.

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X said the injuries were preexisting and degenerative, and then,

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you know, two years later, Dr.

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X said preexisting degenerative, and we can use that to cross the doctor and say,

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doctor, do you recall the Smith case?

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And he says, well, no, I'm, you know, I'm sure I testified in it.

Speaker: 00:36:28

Doctor, do you recall in that case your testimony was that the injury

Speaker: 00:36:31

was pre-existing and degenerative?

Speaker: 00:36:32

I, I don't doubt that, that was my testimony.

Speaker: 00:36:35

Did you know there that the plaintiff got a 5.2 million verdict?

Speaker: 00:36:38

Oh, objection.

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Listen.

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You know, but that it's kind of that transcripts, reports,

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jury verdict research.

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Yeah.

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The thi the thing.

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It can be, so for example, if you get a B, the expert's reports or his testimony,

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in prior cases, they'll say things, for example, like, so let's say in, in the

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case that he's testifying in today for.

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He says the plaintiff never went to the emergency room after the crash,

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and therefore we know he wasn't injured because he didn't go to

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the emergency room after the crash.

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And then if you get a bunch of his prior reports, you'll find that even when the

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plaintiff goes to the emergency room after the crash, they'll still say, well,

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that's not a significant factor to me.

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So that's kind of like one way you can expose 'em.

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And then there's other examples that we know of where like one, for example,

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The person who was being examined by the defense doctor recorded the whole

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exam and it lasted about 90 seconds.

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And then at trial, the expert testified that the exam took 20 minutes.

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And then you play the thing and it's only 90 seconds and you, these are

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different ways that the research and stuff can, can expose these doctors.

Speaker: 00:37:46

But the money thing is really important because in a lot of ways it's like

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the doctors on his own island.

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So you'll have the, the injured person will be going on for say, four years and

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they'll go to dozens of medical exams.

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They'll have surgeries.

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They'll be treated by a half dozen doctors and radiologists and

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everything, and all those doctors will say, yes, they're injured.

Speaker: 00:38:10

Yes, it's from this.

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And you know, the radiologist will say, yes, that's a real

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injury, et cetera, et cetera.

Speaker: 00:38:17

So then the only person.

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In the case or in the trial is this insurance defense, medical exam

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doctor, and they're the only one that's saying they're not injured.

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They're not seriously injured, it's not related to the crash.

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So it's kind of like they're on their own island and the island is being funded

Speaker: 00:38:32

by the insurance company and therefore they have to say what the insurance

Speaker: 00:38:36

company wants 'em to say because they don't wanna be kicked off the island.

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And, and so they're like on their own little private island and.

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And so I had, I had one particular case very hard.

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It was a very difficult case.

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Another law firm had it and didn't think they could do much, so they

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kind of cut the plaintiff loose.

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And we took the case, you know, tried the case and we had this defense doctor was

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on the stand and we cross-examined him.

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We cross-examined him.

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So like, You know, the witness goes up and then the attorney that wants

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the testimony from the witness will call them and ask them questions.

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That's called direct exam.

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And then the adverse attorney can ask them other questions to try

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to show that they're not being truthful or they're not credible.

Speaker: 00:39:18

That's called cross-examination.

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So often on cross-examination that's when we'll bring this stuff

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out, including the money thing.

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And in one particular case, this, this expert who is testifying.

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Held stock in the medical doctor procurement company.

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He actually founded this company that held itself outta

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servicing the insurance industry.

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And I crossed him on that at trial and, and he's, he's like, I sold

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that stock in that company years ago.

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And I'm like, I.

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I'm like, wait.

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I'm like, wait a minute.

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And I checked as of today, the stock you had X shares it's worth, and I did the

Speaker: 00:39:56

math in front of the jury, 23 million.

Speaker: 00:39:59

He l he, he legit had stock in 23.

Speaker: 00:40:03

He had stock 23 million worth of stock in the company That.

Speaker: 00:40:08

Procured the The medical exam.

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The defense.

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Medical exam.

Speaker: 00:40:12

And then I said, isn't that true?

Speaker: 00:40:13

He is like, well, I don't know what it is.

Speaker: 00:40:14

And he goes, I sold that stock years ago.

Speaker: 00:40:16

I got rid of that stock years ago, and I had the official statement from the F F E

Speaker: 00:40:20

C about him having sold that stock dimple.

Speaker: 00:40:23

Guess who he sold the stock to?

Speaker: 00:40:27

Well, I mean, someone really famous.

Speaker: 00:40:30

He sold it to his wife.

Speaker: 00:40:31

Oh, sneaky.

Speaker: 00:40:33

So he's up in the stand telling this jury that he doesn't have any,

Speaker: 00:40:37

any, any stake in this stock of this company that arranged the exam

Speaker: 00:40:43

in this case because he sold it.

Speaker: 00:40:45

But I knew and crossed him that he sold it.

Speaker: 00:40:48

So then after I was done the examination, the defense lawyer jumped

Speaker: 00:40:51

up and he goes, doctor, Isn't it true that the injury is not severe?

Speaker: 00:40:55

Yes, that's true.

Speaker: 00:40:56

Is it is isn't true that the injury is not related to this crash?

Speaker: 00:41:00

Yes, that's true.

Speaker: 00:41:00

And I said, judge, I have one more question.

Speaker: 00:41:02

Can I please ask?

Speaker: 00:41:03

All right.

Speaker: 00:41:03

Make it quick.

Speaker: 00:41:04

Mr.

Speaker: 00:41:04

Clark.

Speaker: 00:41:05

I said Dr.

Speaker: 00:41:06

You, you said the injury's not from the crash, and that's not serious, right?

Speaker: 00:41:10

Yes, that's what I say.

Speaker: 00:41:11

Well, I said you have 23 million reasons to say that, don't you?

Speaker: 00:41:14

And, and then you know the big objection.

Speaker: 00:41:17

Sustained.

Speaker: 00:41:17

Don't answer that.

Speaker: 00:41:19

And the doctor storms off the stand and says, I won't lower myself.

Speaker: 00:41:23

So, so this is the kind of this, so on the one hand, you know, mark

Speaker: 00:41:29

talked about that there are some attorneys rather than put up the.

Speaker: 00:41:34

Tens of thousands of dollars it costs to take these cases to trial.

Speaker: 00:41:38

They'll just.

Speaker: 00:41:39

Dismiss the case and move on to the next case, which again, mark

Speaker: 00:41:43

and I would be rolling in the dirt if that happened at this office.

Speaker: 00:41:46

And then on the other hand, some attorneys will do the research, the investigation,

Speaker: 00:41:50

the digging, and take the risk.

Speaker: 00:41:51

We don't win all our cases.

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You know, we've tried a lot of cases and we've won a lot of cases and

Speaker: 00:41:56

got some awesome, awesome results.

Speaker: 00:41:58

But we also lose cases, uh, from time to time as well.

Speaker: 00:42:01

If you're a trial attorney and haven't lost any cases, then

Speaker: 00:42:04

you haven't tried many cases.

Speaker: 00:42:06

Because it's very difficult.

Speaker: 00:42:07

But it is important to get a lawyer that is not afraid to try cases.

Speaker: 00:42:11

Because see, they keep tabs on all the lawyers, the insurance company,

Speaker: 00:42:14

and if the lawyer takes a dismissal, dismisses a case instead of.

Speaker: 00:42:19

Taking the risk of bringing to trial, what do you think dimple the

Speaker: 00:42:23

insurance company's gonna do on the next case that that same lawyer has?

Speaker: 00:42:27

How do you think they're gonna approach that case?

Speaker: 00:42:29

They're gonna make the same judgment and they're gonna have this pre like

Speaker: 00:42:34

mentality of like what they were thinking based on past experience and evidence.

Speaker: 00:42:39

They're gonna, yeah, do the same thing and they're not gonna pay money on the case.

Speaker: 00:42:42

They're not gonna settle the case for a lot of money.

Speaker: 00:42:44

So it's important to get lawyers that actually try cases and have

Speaker: 00:42:46

experience in this regard and, and it also helps if they have good results.

Speaker: 00:42:50

So that was such a great share, Jerry, I think, I mean that example right

Speaker: 00:42:54

there, And that's literally what, you know, happens behind the closed doors

Speaker: 00:42:59

of the courtroom and, you know, wi witnesses and, and, and all of that.

Speaker: 00:43:03

But it's so important to know, like the right people to bring in the right

Speaker: 00:43:07

witnesses, the right questions to ask.

Speaker: 00:43:10

So thank you for sharing that.

Speaker: 00:43:11

And Mark, what are your thoughts on all this?

Speaker: 00:43:13

I agree.

Speaker: 00:43:14

I probably just have one more.

Speaker: 00:43:16

Thing to add too, but I think we take for granted that, you know, we go, we

Speaker: 00:43:21

do go do our homework depending on, you know, who the defense expert is going

Speaker: 00:43:24

out, tracking down transcripts, doing things like Jerry did in that case, you

Speaker: 00:43:29

know, going to that F e C or you know, making sure that he had that information.

Speaker: 00:43:34

Cuz that's huge that, that factors big time into a case.

Speaker: 00:43:38

But like the attorneys who will sign the step of dismissal or

Speaker: 00:43:41

like, you know, the attorney who might not send a nurse to the exam.

Speaker: 00:43:45

You know, I don't automatically just want to conclude that all attorneys

Speaker: 00:43:49

go out and do their homework on these defense doctors before crossing them.

Speaker: 00:43:53

You know, they might just say, all right, I, who do I got today?

Speaker: 00:43:56

And go up there and try and pick at some stuff.

Speaker: 00:43:58

But, you know, we like to kinda have as much ammunition, like

Speaker: 00:44:01

information's power and all that.

Speaker: 00:44:03

So we try and have as much as we can before we go in.

Speaker: 00:44:06

And I've kind of been thinking through this too, and this is more

Speaker: 00:44:09

just a global big picture thing, but, and it is related to a case.

Speaker: 00:44:14

I think it was, what was it?

Speaker: 00:44:16

Was it like Citizens United or something?

Speaker: 00:44:18

It was a Supreme Court case that dealt with like campaign financing.

Speaker: 00:44:22

And it may have been one of the last cases I had to look at in law school.

Speaker: 00:44:24

I.

Speaker: 00:44:25

But the, my understanding of what I recall about it was it was a First amendment,

Speaker: 00:44:29

a first amendment case that concluded that money essentially is speech.

Speaker: 00:44:34

And at the end of the day, that's kind of what a lot of this is.

Speaker: 00:44:37

Like these doctors that are getting paid hundreds of thousands of dollars,

Speaker: 00:44:41

millions of dollars, that's speech.

Speaker: 00:44:43

That's the defense firms telling them, Hey, write us a good report.

Speaker: 00:44:47

And then what we hope the ultimate kind of speech is, is the jury saying,

Speaker: 00:44:52

Hey, we don't believe that guy.

Speaker: 00:44:54

We believe your client.

Speaker: 00:44:55

Here's money.

Speaker: 00:44:56

Cuz that's them saying, here's a just verdict, here's, here's fairness.

Speaker: 00:44:59

So the whole time when we were talking about all this, I kind of

Speaker: 00:45:02

had having in the back of my head that, you know, money is speech.

Speaker: 00:45:05

And it's like in life if you value someone's services, you're,

Speaker: 00:45:07

you're willing to pay for it.

Speaker: 00:45:08

If you really like going to this one pizza place, you don't mind spending

Speaker: 00:45:12

$20 for their pizza, whatever it is.

Speaker: 00:45:14

Like, and that's a lot of times what.

Speaker: 00:45:16

Kind of makes this whole thing go round.

Speaker: 00:45:18

Yeah.

Speaker: 00:45:18

And if there's any potential jurors listening here and you don't like,

Speaker: 00:45:22

and you find this at trial and you don't like it, you can speak to by

Speaker: 00:45:25

awarding money, wait, wait, wait.

Speaker: 00:45:28

Rewind, Jerry, what can they do?

Speaker: 00:45:29

What can the jury do?

Speaker: 00:45:31

Well?

Speaker: 00:45:31

So Mark made a great point about how in America, based on our Supreme

Speaker: 00:45:35

Court, they say money is speech, right?

Speaker: 00:45:38

So jurors at trial, they don't talk.

Speaker: 00:45:41

Out, out, out, out of their mouth.

Speaker: 00:45:42

But what they can do is they can award money.

Speaker: 00:45:45

So if a juror doesn't like what they hear and they don't like what they're

Speaker: 00:45:48

seeing, that because the thing is, if, if a plaintiff is a liar, a cheating,

Speaker: 00:45:53

a fraud, they should be thrown outta the courtroom with nothing.

Speaker: 00:45:57

It should absolutely happen.

Speaker: 00:45:59

But if they are being called a liar, cheating a fraud.

Speaker: 00:46:03

Just because the insurance company wants to pull the wool over people's eyes and

Speaker: 00:46:07

get away with paying out claims, then how dare they And the juror, the jury,

Speaker: 00:46:13

can speak by awarding money in those cases by awarding the full compensation.

Speaker: 00:46:18

The jury can speak that way.

Speaker: 00:46:20

I love that.

Speaker: 00:46:21

Yeah, that totally makes sense.

Speaker: 00:46:22

Thank you for sharing that.

Speaker: 00:46:23

So anything else that either of you would like to share about

Speaker: 00:46:27

this topic before we wrap up?

Speaker: 00:46:30

I think good.

Speaker: 00:46:30

I think that's thorough enough.

Speaker: 00:46:32

All right, everyone, thank you so much.

Speaker: 00:46:34

We will see you guys next time.

Speaker: 00:46:36

Make sure you share this out with your friends.

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