Cross-examination has been called “the greatest legal engine ever invented for the discovery of the truth,” by the United States Supreme Court. 

On December 16th, 2011, David Farnbauch had the honor of speaking at the “Cross Examination: A Lawyer’s Time to Shine” legal seminar sponsored by the Indiana Continuing Legal Education Foundation (“ICLEF”) at the Fort Wayne, Indiana Grand Wayne Center.

The seminar was designed to provide lawyers with the tools necessary to take cross-examination to the next level. Providing a plaintiff’s perspective, David discussed the principles of “constructive” cross-examination and demonstrated how the effective use of constructive cross-examination can be the deciding factor at trial.

In order to maximize the potential Cross-examination, lawyers need to:  

1. Have a plan
2. Have clear goals for the Cross
3. Begin the Cross at the Deposition stage
4. Utilize control methods

The seminar covered many facets of  the Cross Examination including:

• The Nuts and Bolts of Cross-Exam / Rules of Evidence in State and Federal Court
• Methods and Purposes of Cross-Exam
• Younger’s Ten Commandments of Cross-Exam
• The use of Technology in Cross-Exam
• Tactics to Employ When Crossing Parties,
• Fact Witnesses and Lay Witnesses
• Cross-Exam of Medical Experts
• Cross-Exam of Retained Experts
• Use of Objections During Cross-Exam
• Redirect and Rehabilitation of Witnesses: Tips for Success
• Ethical Considerations in Cross-Exam

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According to Indiana code and the Medical Malpractice Act in the State of Indiana a claim, whether in contract or tort, may not be brought against a health care provider based upon professional services or health care that was provided or that should have been provided unless the claim is filed within two years after the date of the alleged act, omission, or neglect, except that a minor less than six years of age has until the minor’s eighth birthday to file.

The above video is an example of a case barred by the two year statute of limitations as written in the Medical Malpractice Act.

Resources:

http://www.in.gov/legislative/ic/code/title34/ar18/ch7.html

http://www.in.gov/legislative/ic/code/title34/ar18/index.html

http://www.in.gov/idoi/2614.htm

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“I’ve heard in Indiana unlike some other states that someone who is injured or involved with medical malpractice say in a hospital or nursing home can’t file a lawsuit in court but instead have to file that case before a panel of doctors. Can you explain the reason for that?”

“Indiana has sort of a unique set of laws that govern medical malpractice. Most states if you have a medical malpractice case you can file that case directly in court and begin the process with the court system. In Indiana, most medical providers are what we call qualified providers and their entitled the protections of the Indiana Medical Malpractice Act and what that means from a practical standpoint is the case has be filed with a medical review panel which consist of three medical providers who vote on the merits of that case before you can file your case in court. It has been in effect since 1975.It is unique to Indiana. We also have some interesting laws that govern medical malpractice such as caps on damages. Most people do not know that in the state of Indiana, there is a medical malpractice cap of 1.25 million dollars regardless the amount of harm that has been cause by the doctor or hospital. The most that you can recover in a medical malpractice case in the state of Indiana is 1.25 million dollars which is in some cases where you have catastrophic injuries and damages; it presents a very unique hardship to the victim of medical negligence because they are capped out on their recovery. We have some laws in Indiana that make it very adventitious to practice medicine from a legal liability standpoint in this state.” 

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On Friday November 11th, 2011, David Farnbauch will be attending Eric Oliver’s legal communication workshop “The Persuasion Edge for Legal Communication” in Washington D.C. 

Eric G Oliver is one of the premier Trial/Jury consultants in the United States. Eric has concentrated in nonverbal, verbal, and implicit communication skills for over 27 years—23 working with attorneys. Besides teaching effective communication skills to attorneys and their firms, he spends most of his time helping trial attorneys prepare and present more receiver-friendly cases in court and for settlement presentations and discussions. He helps lawyers build a presentation plan for each case—adaptable to any venue—integrating the verbal, visual, and personal parts of the trial based on jurors needs and expectations uncovered in focus groups and voir dire. 

Eric Oliver is coauthor of “Courtroom Power: Communication Strategies for Trial Lawyers”, and author of “Facts Can’t Speak for Themselves: Reveal the Stories that Give Facts their Meaning” and “Persuasive Communication”. Eric is also the founder of the consulting firm, MetaSystems, Ltd., located in Canton, Michigan.

Topics the legal communication workshop will concentrate on:

Rapport and Mirroring

Attendees will discover how to take their natural talent for making strong, sometimes immediate connections from personal settings to the professional arena. They will learn how to take a listener from a position of suspicion or disinterest to at least attentive, if not fully engaged, without changing anything you would have said—or not said.

Case Story Sequence

If every story has three main steps, and every story is different, and “duty-breach-harm-damage” or “and then-and then-and then chronology” are not the most persuasive order in which to deliver proofs, then what is the best sequence to present the case story? Attendees will learn how much has to happen before the “bad acts” drop in.

Sense Systems and Case Stories

What is the most basic bias affecting every decision maker as they construct their own personal version of the case story?  Use the Sensory System preferences to increase influence in the case story delivery.  Attendees will learn the bias towards a visual, oral, or feeling preference for the building blocks of perception to make meaning of any case story.  Attendees will discover how to confirm their own sensory preference—visual, auditory, or kinesthetic, and how to detect anyone else’s in short order. Finally, attendees will learn the mechanics of a purely visual delivery of any case story point.

Anchors, Frames, and Themes

Attendees will learn to frame the delivery of key parts of client’s case stories to not only present them well or even to overcome a weakness, but also turn certain weaknesses into strengths, using key phrases and images (anchors) already available.

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“We were just talking during the break, this is pretty timely, with the house passing health care legislation last night, and you said there were some things from a legal perspective that don’t add up.”

“I think what I wanted to share with our viewers about the vote that just came down about the health care plan is as our viewers may or may not know. There was no significant tort inform measures that were included in the health care package that was just filed. That was one of the things that I think was subject to debate, weather the was gonna be some tort reform like capping damages for medical malpractice suits.”

“And tort reform me revising the law?”

“Mostly what it means in the context of health care is capping damages on medical malpractice suits. One of the theories with trying to reduce health care cost was that if you put caps on medical malpractice suits, that it would result in lowering of health care cost that the doctors practice too much defensive medicine, they order unnecessary test because they are afraid of being sued. There are runaway jury verdicts with medical malpractice suits so that if you cap damages you’ll bring down the cost. One of the things I think our viewers ought to know in this debate are some of the facts regarding what cost are associated with the medical malpractice system that might contribute to the health care system. One of the things I think our viewers ought to know is that if you completely eliminated all medical malpractice lawsuits all together, if there were no malpractice awards, if doctors weren’t charged premiums for medical malpractice – the total cost of the health care system would be less than 1% of the total health care cost.”

“So it doesn’t have that much of an impact.”

“Right, like I said, if you completely eliminated medical malpractice from our health care system. It would only eliminate less than 1% of the total cost. About 1 in every $6 dollars in our economy right now is spent on health care. So the congressional budget office said that if you put a cap on damages, you could reduce health care cost by about $11 billion a year, but people have to have that perspective that $11 billion a year would be less than 1% of the total cost of health care.”

“Wow, so perhaps something that the congressional leaders didn’t take into account, or didn’t think through perhaps?”

“Well, they may have taken it into consideration, but my point is, that if you just eliminated that whole system all together, you’re really not going to eliminate health care cost or reduce them considerably.”

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“We were just talking during the break, this is pretty timely, with the house passing health care legislation last night, and you said there were some things from a legal perspective that don’t add up.”

“I think what I wanted to share with our viewers about the vote that just came down about the health care plan is as our viewers may or may not know. There was no significant tort inform measures that were included in the health care package that was just filed. That was one of the things that I think was subject to debate, weather the was gonna be some tort reform like capping damages for medical malpractice suits.”

“And tort reform me revising the law?”

“Mostly what it means in the context of health care is capping damages on medical malpractice suits. One of the theories with trying to reduce health care cost was that if you put caps on medical malpractice suits, that it would result in lowering of health care cost that the doctors practice too much defensive medicine, they order unnecessary test because they are afraid of being sued. There are runaway jury verdicts with medical malpractice suits so that if you cap damages you’ll bring down the cost. One of the things I think our viewers ought to know in this debate are some of the facts regarding what cost are associated with the medical malpractice system that might contribute to the health care system. One of the things I think our viewers ought to know is that if you completely eliminated all medical malpractice lawsuits all together, if there were no malpractice awards, if doctors weren’t charged premiums for medical malpractice – the total cost of the health care system would be less than 1% of the total health care cost.”

“So it doesn’t have that much of an impact.”

“Right, like I said, if you completely eliminated medical malpractice from our health care system. It would only eliminate less than 1% of the total cost. About 1 in every $6 dollars in our economy right now is spent on health care. So the congressional budget office said that if you put a cap on damages, you could reduce health care cost by about $11 billion a year, but people have to have that perspective that $11 billion a year would be less than 1% of the total cost of health care.”

“Wow, so perhaps something that the congressional leaders didn’t take into account, or didn’t think through perhaps?”

“Well, they may have taken it into consideration, but my point is, that if you just eliminated that whole system all together, you’re really not going to eliminate health care cost or reduce them considerably.”

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CHARITY FREEMAN: We are here today to talk about a public health problem that does not receive a lot of attention or press coverage, but it’s a serious health problem that’s affecting millions of people every year. I am talking about injuries from falls and the statistics are sobering. Among those aged sixty-five and older falls are the leading cause of injury. In 2007 over eighteen-thousand older adults died from falls. Falls are the most common form of hospital admissions for trauma. In the year 2000 alone direct medical costs of falls total a little over nineteen-billion dollars. Our guest today is David Farnbauch attorney with the Sweeney Law Firm who has over 25 years of experience handling cases involving falls. David thanks do much for being here today.

DAVID FARNBAUCH: Great to be here today.  

CHARITY FREEMAN: David can you give us some examples of cases where a home owner or a business owner might be legally responsible if someone falls and is injured on their property. 

DAVID FARNBAUCH: I can give you a couple examples that I think are fairly common. First example that I will give you is a fall on a premises involving snow or ice on a sidewalk. In Indiana a premises owner, say the owner of a store or a shopping mall has a duty to exercise reasonable care, for example sidewalks should be in a reasonably safe condition. So if there is snow and ice that accumulates on a sidewalk and the business owner does not take any measures in shoveling the snow off or spreading some salt. If someone falls on an icy sidewalk there is a potentially legal liability.

CHARITY FREEMAN: There seems to be a lot of misconceptions on whose responsible if someone falls. I have run into a lot of people who believe that a business is always reliable if someone falls on their property and I have run into people who believe that the person who fell is responsible because they were not being as careful as they should have been. Can you explain how the law works when it comes to people falling on someone else’s property?

DAVID FARNBAUCH: I think that there are a lot of misconceptions about legal liabilities stemming from a fall. Oftentimes people will come into our office after a fall and they mistakenly believe that if they fall on a business premises, the business is automatically legally responsible for their injuries and that is simply not the case. A business owner has a duty to exercise reasonable care and what is reasonable depends on the situation. It depends on what type of a fall it was and what the business owner did to cause the fall or prevent the fall that will determine whether there is liability. The other thing that is important to remember about a fall case is a person who is walking on a sidewalk or on a premises they have a duty to exercise reasonable care for their own safety. So if there are hazardous conditions or things that they should have observed to try to watch out for their own safety, they have a duty to exercise care for their own safety.

CHARITY FREEMAN: Now if our viewers has fallen or had a loved one who has been seriously injured in a fall and they believe that it is the fault of the property owner what advice would you give them?

DAVID FARNBAUCH: One of the biggest problems with fall cases in general is the absence of documentation or photographs right after the fall. One of the most important things I think after a fall is to have a family member or a close friend go to the scene where the fall occurred and obtain photographs of the scene right after the accident. It’s very important to try to document or preserve what the scene looks like immediately after a fall. That is the first step. I think the second bit of advice that I would give to somebody who has been involved in a fall is oftentimes you will be contacted by an investigator or an adjuster for the owner of the premises. I would refrain from giving any sort of a recorded statement until you have had an opportunity to talk to a lawyer and get some legal advice. The other thing that i would say is that if you’ve suffered from a serious fall and you think that there was something that should not have been there or there was negligence on the part of the property owner that caused the fall. I think that it is important to contact an attorney early after the fall and get legal advice. 

CHARITY FREEMAN: Our viewers may be concerned about the cost involved in this kind of case. Does it cost a lot of money to investigate a fall or to file a lawsuit against a business owner? 

DAVID FARNBAUCH: Most law firms that handle these cases handle them on a contingent fee basis which means they will charge a client a percentage of the recovery and they will advance the expenses of these cases, so it really does not cost the consumer anything to investigate a slip and fall case on the premises. 

CHARITY FREEMAN: David this has been very informative and given our viewers a lot of information about the legal aspects of a fall injury. We appreciate you taking the time to be with us today.

DAVID FARNBAUCH: It was a pleasure to be here today.

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“This is the time of year when a lot of people are involved in serious motor vehicle accidents weather that be motorcycles or on highways when there is more travel. What we see frequently in our office is when people are involved in a serious accident, there is often times not enough insurance coverage on the part of the party or person that causes the motor vehicle accident so there’s a need for you to go underneath your own coverage, your own automobile policy to be compensated for a serious accident. We always recommend to people when they come to our office is to contact your auto insurance agent and make sure that you have what they call Underinsured and Uninsured Motorist coverage. Uninsured obviously applies to a situation where the person that causes the accident does not have any insurance. Underinsured refers to a situation where the person that causes the accident has some insurance but not enough to cover the full extent of your damages. With the cost of medical care now, it doesn’t take very long when you are in the hospital to run through a person who only has let’s say $25,000 or $50,000 of liability insurance coverage. You can go through that coverage in a week or two in the hospital so it’s important to get adequate insurance coverage to protect you against the other guy.”

“Even if the other guy is required by state law to have insurance, a lot of people still don’t have it.”

“A lot of people. The statistics I’ve heard vary, but they say up to 20% of the drivers on the roadways do not have any insurance what so ever.”

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On August 31st, Indiana Attorney General Greg Zoeller stated that Indiana will pay out the full $5 million in compensation available under state law for the victims of the August 13th State Fair stage collapse.

Greg Zoeller commented in a written statement: “My goal is to focus on the needs of victims and their families while minimizing the expense of lengthy and costly litigation,”

State law limits individual damage claims against the state to $700,000 and overall claims to $5 million per event.

Fort Wayne, Indiana based Sweeney Lawfirm’s David Farnbauch, who has sued many governmental entities related to injury or death, said Zoeller’s acknowledgment is a great public relations move.

“It is taking responsibility and trying to help these people,” he said. “The state is trying to let people know that liability is not going to be the issue as it pertains to the state. It knows it has liability and there is no point in fighting that out.”

Farnbauch said at some point he expects a judge to step in to help decide how to divvy up the $5 million.

“There has to be a rhyme or reason to who gets paid what before the state starts paying out money,” he said, noting it can’t be guided by a first-come, first-served mentality given the limited pot.

He said victims have 180 days after the incident to file a tort claim. Once that period has run out, the state will have a better idea of the scope of those with claims on the money and can more easily come up with a formula and procedure for compensation.

As reported in The Journal Gazette

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“There was a recent study that came out in the Indianapolis Star. They did a pretty comprehensive study of the nursing homes in the state of Indiana and they found out that Indiana ranks 51st out of the 50 states. You might say, “Well how did we get to 51st?” They also counted the District of Columbia. But Indiana ranks 51st lowest in the quality of nursing homes in the United States. So obviously this was a very troubling study for the legislators and the nursing regulators in Indianapolis when they learned that we ranked dead last in the quality of nursing homes. They studies a lot of factors particularly the amount of man hours that were spent on each patient by CNAs and Nursing Assistants. They found once again that we rank dead last in the United States. They found that the for profit nursing homes were lower in quality than the not for profits as well so that was another result of the study. What I thought that I would suggest today are some things that our viewers can do if you find yourself in a situation with a loved one who you don’t feel is receiving appropriate care. There are some things that you can do, most notably there is an Ombudsman program in the state of Indiana where you can contact a person in our area that is responsible for responding to complaints in nursing homes and if you want to contact once again my office through the website, I will give you all that information for the Ombudsman. The other thing that your gonna wanna do if you have a loved one that’s about to go in a nursing home, I think you’re really gonna wanna do some research to the term “What is the best nursing home to place your loved one in” and there are some really good websites out there right now, most notably there’s a website called “Nursing Home Compare” that will give you great information comparing one nursing home, the quality factors of one nursing home versus another. Also, the Medicare website has some good information where it now gives nursing homes an actual grade, A-B-C-D and so on. So if you’re gonna put your loved one in a nursing home, and you’re about to make that decision, your really need to do your home work and do your research before you select a facility.”

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