With use instructions and jury selection tips.

By Leonard Bucklin

Excerpted from Building Trial Notebooks

This section in your trial notebook is the place for:

  1. The attorney’s notes on the type of jurors to have or not have on the jury, and the questions he wants to ask the jurors on voir dire.

  2. A juror voir dire form, in as many copies as you will use during voir dire.

  3. When available, the jury panel list of the people to be voir dired.

  4. After the jury panel list has been obtained, information you have gathered on individual potential jurors.

  5. A three-minute summary of the case you can present to the voir dire panel to quickly explain what the case is about.

This is the place for a summary, not a long description.

When the judge asks, “What are your damages?” When the jury needs to know, “What is the rational way of adding up the economic damages from loss of the contract to sell 1K Widgets?” When the mediator asks, “What are your out-of-pocket costs?” When your defendant’s insurer questions, “What are plaintiff’s out-of-pocket expenses?” “How long was the plaintiff in the hospital?” “What are the injuries that were diagnosed?” Those are the times you must be able to respond with a bulleted list which is short, direct, categorized, and dollar-specific.

We provide a form to summarize damages in a personal injury case. Begin completing the form as soon as the case starts. It will help you determine:

  • How much the case is worth to you as an attorney, and how much in resources you can afford to spend on the case.

  • If there are holes in what should be known about damages. Your staff can work on filling gaps while you are out of the office.

§13.1       Tip and Form: Medical Bills

In the typical bodily injury case the defense puts in a general denial of everything you pleaded. That means that at trial you will have to prove the medical treatment was reasonable, that it was caused by the accident, and that the charges were reasonable. Do not be caught flat-footed at trial by an objection to introduction of the medical bills on the ground that they have not had the necessary foundation of testimony on what was reasonably necessary for medical treatment.

As soon as the defense gives you a general denial answer, including a denial of your pleading of medical expenses, do two things.

  1. Immediately send the defense a nice letter enclosing a medical authorization from your client for them to inspect medical records. Opposing counsel will get it sooner or later, so give it to them right away to justify step 2 below.

  2. Sixty days later send out the following Request for Admissions.

We place this Request for Admissions Re Medical Expense behind the “Damages List” tab so that you will handle it during the first ninety days of the litigation. That is the crucial time period for you to establish that you will take no nonsense from the defense.

The Request for Admissions re Medical Expense mentions at length the consequences of failure to admit, including that a denial questions the professional conduct of the medical provider. This is first to make the defense attorney think seriously about her game of denying everything you pleaded.

Second, if the defense attorney does deny the requests, your treating doctors will become wonderfully cooperative after you tell them that the nasty guy on the other side is questioning their medical ethics. Suddenly doctors who would not talk to you about the case are willing to appear at trial to say how badly your client was hurt, and why his patient had to endure both the injuries and the expense of treatment.

If the defense admits the items, make a large posterboard of the admissions, signed by the defense attorney. Do as we do in the form — make the actual place for them to sign a separate page so it is easy to copy and enlarge separately. Offer the enlarged-size admission in evidence in chambers before opening statement. Then show the enlarged admission to the jury at the beginning of the case to establish that the opposition has no defense to the damages you will be seeking at the close of the case.

§13.2       Form: Plaintiff’s Request for Admissions Re Medical Expenses

[Usual Court Heading]

REQUEST FOR ADMISSIONS TO (*2)
(REQUEST NO. *)
REGARDING REASONABLE MEDICAL EXPENSES

(*1) serves and files this Request for Admissions pursuant to the Rules of Civil Procedure. (*1) demands that, on or before the 30th day after the service of these requests on Defendant, Defendant specifically admit or deny the following.

The Rules of Civil Procedure provide that:

  1. For a matter to be pleaded, at the time of pleading you must have factual information that provides a reasonable ground for you to prevail at trial.

  2. For a matter to be denied on a request for admission, you must have factual information that provides a reasonable ground for you to prevail at trial.

  3. You may not give lack of information as a reason for failure to admit the following items (unless you state that in fact you already have made a reasonable inquiry to ascertain any reasonable ground to believe that you might prevail on this matter).

  4. “An assertion that the request presents an issue for trial is not a proper response.”

To assist you in your reasonable inquiry, we draw your attention to the medical records you have and to the medical authorization which you have been furnished and allows you free access to get all the necessary medical bills, records, and information to establish whether the charges were reasonable. We assume that your reasonable inquiry has included obtaining all the records necessary for you to prepare for trial.

_____________________________________________________________________________

NOTICE TO GIVE YOU ACTUAL NOTICE OF THE FOLLOWING.

We want to make it clear that we are presenting this demand for admissions as a professional courtesy to you, so that you have the opportunity now to purge yourself of any penalties and assessments for making what we believe are assertions made without a reasonable ground to believe you would prevail at trial. A subsequent opportunity will not be given to you.

If you now deny any of the following requested admissions, notice is hereby given that upon receipt of a denial of admissions by you, we will then immediately undertake attorney expenditure of time, fees, and costs as necessary on this issue. First, we will spend time making deposition or trial testimony arrangements with the medical providers. The medical doctors or other medical providers involved will be sent a letter, informing them that it is only because you have made a public document contending their treatment was not reasonably necessary and/or the medical charges are in excess of reasonable amounts. After informing the doctors of your contention regarding their medical ethics and medical judgement, we will request an interview with them to discuss your accusation of unreasonable treatment and/or charges.

In making a denial of the matters requested, you must know that the medical doctors and other providers will be sending us bills for their time spent in the interview. Therefore, a later retraction by you of any denial to these matters herein requested will be considered by us as evidence to be presented to the court that the denial of the matters requested was knowingly made to cause attorney time and expenses to the plaintiff.

This notice is provided to give you fair warning of the award against you by the court that may be expected for our time, and costs that will be incurred if you deny any of these requested items. The court at the time of our motion will be provided with a copy of this notice to you, together with proof of service upon you.

You are further placed on notice that if you deny any of the requested admissions, before trial we will inform the trial court of the reason for expending time in proving medical expenses and ask the trial court for a hearing and determination whether AT THIS TIME you had a reasonable ground for denying the requested admissions. We will ask the Court to assess fees and costs as provided by the rules regarding Requests for Admissions and applicable statutes, including, if appropriate, sanctions and penalties for frivolous matters.

_____________________________________________________________________________

The matters to be admitted by you follow on the attached page.

[your usual signature block and date line]

THE FOLLOWING ARE THE ITEMS ON WHICH ADMISSIONS ARE DEMANDED

REQUEST NO. 1:

After the injuries of (*1) _______________, which are the subject matter of this litigation, (*1) _______________ incurred the medical expenses shown on the attached Exhibit A.

ADMITTED: _______________    DENIED: ______________

 

REQUEST NO. 2:

The medical expenses shown on the Exhibit A were reasonable charges for the items and services rendered.

ADMITTED: _______________    DENIED: _______________

REQUEST NO. 3:

The medical expenses shown on the Exhibit A were reasonably necessary for treating the injuries of (*1) _________________.

ADMITTED: _______________    DENIED: _______________

REQUEST NO. 4:

The expenses shown on the Exhibit A are for medical services or goods that were in fact provided, by the organizations or persons listed, to (*1) _________________.

ADMITTED: _______________    DENIED: _______________

[Signature block and date line for thedefense attorney only! You want the defense to use your form and send it back to you. Then if they admit the items you only need to photocopy it and enlarge it to posterboard size for an exhibit in the trial.]

Read this instruction sheet. Then place this instruction sheet as the last item in this tab section. Throw this instruction sheet away after everyone is so familiar with this section that you no longer need this instruction sheet.

§13.3       Instructions to Staff

If this is a personal injury case, insert a double-sided copy of the FORM: PERSONAL INJURY SPECIAL DAMAGES LIST. If the form has insufficient room, type a similar list and use that instead.

For other types of cases make your own summary list of the out-of-pocket (i.e., special) damages. List all special damages in a short form with a dollar amount. Group items in categories. For example, in a fire case, you may have such categories as Building Damage, Personal Property Damage, Temporary Living Expenses, Site Clean Up, Architect’s Fees, Construction Contract, etc. The important point is to have a list, in short form, with specific categories, items and dollar amounts.

Also place in this section any summaries and other compact information which allow convenient and correct references to the amount and type of general damages.

§13.4       Form: Personal Injury Special Damages List

Date of birth: ____________  Age on date of the accident was _________________

Life expectancy:  __________ years on date of the accident

SHORT DESCRIPTION OF INJURIES (If you had to tell a friend in 90 seconds what kind of case you are working on, what would you say the injuries are?)

SPECIAL DAMAGES

HOSPITALS (Name of hospital and date of last billing)

        1.

        2.

        3.

$ ________

$ ________

$ ________

DOCTORS (Name of doctor and date of last billing)

        1.

        2.

        3.

        4.

        5.

        6.

$ ________

$ ________

$ ________

$ ________

$ ________

$ ________

PHYSICAL THERAPY, NURSING SERVICES, APPLIANCES, DRUGS AND OTHER MEDICAL EXPENSES (Name and date of last billing)

        1.

        2.

        3.

        4.

$ ________

$ ________

$ ________

$ ________

TRANSPORTATION AND TEMPORARY HOUSING EXPENSES

$ ________

 

AUTOMOBILE DAMAGE

Is this Repair Estimates, or Actual Cost of Repair, or Total Loss minus Salvage?

        Year, Make & Model:

        Collision Insurer & Deductible Amt.:

        Market Value Before Accident:

        Market Value After Accident:

$ ________

PAST LOSS OF EARNINGS CAPACITY 
(Date of this computation is __/__/__)

        Occupation:

        Employer:

        Rate of Pay:

        Dates Lost From Work:

$ ________

MISCELLANEOUS OTHER EXPENSES

$ ________

SPECIAL DAMAGES TOTAL

$ ________

As the case progresses, you need to think about the theme you ultimately will be presenting to the jury, and the type of juror you want to have. Jot down these thoughts. You will also be thinking of questions to be asked on voir dire. Write them down. This section of the trial notebook will draw into one place these random notes you make from time to time.

Each judge or court has their own procedure for when and how you can obtain from the clerk of court a list of the entire juror panel from which your jury is to be drawn. Place this juror panel list in this section.

§19.1       Using the Voir Dire Form

If possible, have an assistant or emotionally calm client sit next to you during voir dire and make notes about the prospective jurors as you ask questions. If you have to stop to write a note about the juror’s response before you ask the next question, jurors will note that you hated an answer and perhaps adjust their future responses.

Most of the time you will not have a trained assistant available to take helpful notes during voir dire. Moreover, even the best-trained observers will miss important juror reactions. To solve these problems, we include a juror voir dire form containing key items ready to be checkmarked. Thus, while you are talking you may jot down a couple of words or checkmark an item about each prospective juror.

Our form has six columns because many judges seat two rows of six potential jurors in each row. If your county has a different form or shape to the juror box, or uses courtroom benches for more than 12 persons to be questioned at one time, redesign the form accordingly. For example, for judges who seat the panel in four rows of ten persons each, redesign the form to have four rows of ten persons. You will need more than one sheet.

As each juror is called to the box, or otherwise identified in the courtroom, write the juror’s last name at the top of the form’s row corresponding to the juror’s seat. Then it will be easy to jot a few notes about each prospective juror. For example, if it is developed that the person is an executive who thinks corporations make no mistakes worthy of suit, you can draw a circle around the plus or minus sign on “corporation” as a quick indication to you what that juror is like. If a juror knows a witness, the name of the witness known can be jotted next to “witness” on the form’s box for that potential juror. You are then reminded which potential juror works with witness Jones.

Our form includes the following nine items. Usually, you need to know this much about a juror. The list can easily be modified.

__  Friendly to corporations.

__  Tort reform mentality makes him distrust any plaintiff.

__  Occupation bears upon the matter at hand.

__  Government employee or engaged in a medical occupation.

__  Knows an attorney, party, witness or the accident site.

__ He or his immediate family has been involved in a similar type of occurrence.

__  He or his immediate family has either sued someone or been sued.

__  He or his immediate family had the same sort of injury or damages.

__  (Most important.) The juror’s personality is such that you consider it a “plus” or a “minus” in your personal relationship to that juror during the course of the trial.

§19.2       Summary of the Case

At the start of voir dire, many judges ask the attorneys to each give a short description of what the case is about. Do not waste this opportunity. Be ready with a three-minute speech giving a story of the case.

The old Perry Mason detective story titles had it right. The titles were “The case of ….,” such as “The case of the sixty orange signs” or “The case of the man who did not show a light.” You need to tell the jury in your first sentence at least one factual item you want them to key on. “This is an automobile accident case” will not grab a juror’s interest. Be specific. “This is a case of a driver who drove too fast.” Or “this is a case of a handshake that everyone thought was a contract.” For goodness sake, do not just say, “This is a medical malpractice case” if instead you can say, “This is a case of a doctor who did not take time to read the pathologist’s clear report of cancer, and John Smith is now dead.” Or if you are representing a defendant, say: “This is a case of hidden cancer, that even the best doctors, like Dr. Kirmis, have to work against.” In the voir dire, give the prospective jurors a short skeleton of the fact story. Do not simply list legal issues.

Make your case summary a compelling three-minute description that you can use to great benefit when the judge asks, “Counselor, describe the case briefly so the jurors will know if they have a conflict with this type of case.”

 Read this instruction sheet. Then place this instruction sheet as the first item behind the tab. Leave it there.

 §19.3      Instructions to Staff

This “Voir Dire; Juror List” section is the place for:

  1. The attorney’s notes on the type of jurors to have or not have on the jury, and the questions he wants to ask the jurors on voir dire.

  2. The juror voir dire form, in as many copies as you will use during voir dire.

  3. The jury panel list, which is the list of people called to be on the jury panel to be voir dired.

  4. Information you have gathered on individual potential jurors.

  5. The attorney’s three-minute summary of the case designed for use in voir dire.

INSERT FORM. For now, insert one FORM: VOIR DIRE DIAGRAM. Just before a jury trial, the attorney will make extra copies or adjustments in the form.

§19.4       Form: Voir Dire Diagram

#

Name

#

Name

#

Name

#

Name

#

Name

#

Name

Corp + or –

Govern + or –

Medical + or –

Tort Ref + or –

Corp + or –

Govern + or –

Medical + or –

Tort Ref + or –

Corp + or –

Govern + or –

Medical + or –

Tort Ref + or –

Corp + or –

Govern + or –

Medical + or –

Tort Ref + or –

Corp + or –

Govern + or –

Medical + or –

Tort Ref + or –

Corp + or –

Govern + or –

Medical + or –

Tort Ref + or –

Knows

Atty

Party

Witness

Site

Knows

Atty

Party

Witness

Site

Knows

Atty

Party

Witness

Site

Knows

Atty

Party

Witness

Site

Knows

Atty

Party

Witness

Site

Knows

Atty

Party

Witness

Site

Sim. Occur.

Sim. Damage

Sim. Occur.

Sim. Damage

Sim. Occur.

Sim. Damage

Sim. Occur.

Sim. Damage

Sim. Occur.

Sim. Damage

Sim. Occur.

Sim. Damage

Sue   Been Sued

Sue   Been Sued

Sue   Been Sued

Sue   Been Sued

Sue   Been Sued

Sue   Been Sued

• persona  + or –

• persona  + or –

• persona  + or –

• persona  + or –

• persona  + or –

• persona  + or –

#

Name

#

Name

#

Name

#

Name

#

Name

#

Name

Corp + or –

Govern + or –

Medical + or –

Tort Ref + or –

Corp + or –

Govern + or –

Medical + or –

Tort Ref + or –

Corp + or –

Govern + or –

Medical + or –

Tort Ref + or –

Corp + or –

Govern + or –

Medical + or –

Tort Ref + or –

Corp + or –

Govern + or –

Medical + or –

Tort Ref + or –

Corp + or –

Govern + or –

Medical + or –

Tort Ref + or –

Knows

Atty

Party

Witness

Site

Knows

Atty

Party

Witness

Site

Knows

Atty

Party

Witness

Site

Knows

Atty

Party

Witness

Site

Knows

Atty

Party

Witness

Site

Knows

Atty

Party

Witness

Site

Sim. Occur.

Sim. Damage

Sim. Occur.

Sim. Damage

Sim. Occur.

Sim. Damage

Sim. Occur.

Sim. Damage

Sim. Occur.

Sim. Damage

Sim. Occur.

Sim. Damage

Sue   Been Sued

Sue   Been Sued

Sue   Been Sued

Sue   Been Sued

Sue   Been Sued

Sue   Been Sued

• persona  + or –

• persona  + or –

• persona  + or –

• persona  + or –

• persona  + or –

• persona  + or –


Leonard Bucklin has been elected a Fellow of the International Academy of Trial Lawyers, which attempts to identify the top 500 trial lawyers in the U.S. He served as a Director of the Academy from 1990 to 1996. He is also a member of the Million-Dollar Advocate’s Forum, which is limited to plaintiffs’ attorneys who have won million or multi-million dollar verdicts, awards, and settlements.

On the other side of the table, Mr. Bucklin has been placed in Best’s Directory of Recommended Insurance Attorneys as a result of superior defense work and reasonable fees for over 35 insurers. His legal experience spans 40 years, and has been balanced between commercial and personal work, between office practice and litigation, and between plaintiff and defense work. He is the author of Building Trial Notebooks, from which this article is excerpted.