EP03: How to Breakthrough a Stonewall

Episode Notes

Transcript

Christine Byers:

I’ve sent multiple meet and confer letters, but they continue to stonewall.

John Simon:

Wow, that’s never happened to me. Has that ever happened to you?

Christine Byers:

No,

John Simon:

Never.

Alvin Wolff:

Not since my trial last week.

Christine Byers:

Welcome to the Case Doctors.

Alvin Wolff:

I mean, John, can you remember what you ate for breakfast yesterday?

John Simon:

Not really.

Christine Byers:

With John Simon and Alvin Wolf.

Alvin Wolff:

One thing I told a lawyer, I’m happy to send you a children’s dictionary if you don’t understand these simple English words.

Christine Byers:

The show where two of the greatest legal minds offer you advice on your cases.

Alvin Wolff:

If it’s a good case, it’s not a bad place to be. If it’s a bad case, heaven help you.

Christine Byers:

The case doctors will see you now. Welcome to the Case Doctors. I’m your host, Christine Byers of Simon Law, and I’m joined by the case doctors, John Simon and Alvin Wolf. Now, between them, they have more than 80 years of experience as plaintiff’s attorneys, so there really isn’t a scenario they haven’t already encountered on a case and figured out how to handle it or how not to handle it, as John says. Now, they’re offering you the chance to tell them about the various problems or issues that are coming up in your cases and hear how they would handle it. But first, let’s turn to some of the civil cases making headlines and hear what the case doctors have to say about them. All right, gentlemen, our first case brings us to Washington Federal Court, and it says that a law firm isn’t owed any additional coverage after Hackers allegedly stole more than $1.5 million intended for an attorney who had partnered with the firm on a personal injury case.

In its partial motion to dismiss, the insurance company said that the law firm wasn’t owed anything beyond its policy of $100,000 and it’s for its social engineering coverage limit, which had been paid. And as a result, the insurer says it has no duty to indemnify the firm for any additional amounts, even after that referring attorney’s compensation of just over $1.5 million was stolen by hackers.

John Simon:

Well, it sounds to me like they didn’t have enough coverage.

Alvin Wolff:

And it reminds me that everybody listening should get a lot of underinsured motorist coverage because if you don’t have enough coverage, you’re not going to get properly compensated.

John Simon:

Yeah. And I’m wondering a lot of that, I guess that … I’m wondering if that’s covered in most policies, cyber issues.

Alvin Wolff:

Well, there are limitations in a lot of policies that … What can happen is so prevalent. They automatically lower the amount. For example, I was talking to someone over in Illinois for nursing home cases. Most of the nursing homes, if they have any insurance at all, are limited to $100,000.

Christine Byers:

Now, Evan, you had been talking to us too about a case you had heard about where an email was off by one letter and the money was gone.

Alvin Wolff:

Yes. I’m familiar with one where $750,000 just disappeared into thin air from some bad people out there that stole the money.

John Simon:

Yeah. I’ve heard about that a couple times where … And it was all involved a wire transfer. Somehow, I guess the email giving the wire instructions was hijacked or somebody broke into it. And so it ends up that the money’s being wired to the wrong person. I’m wondering who’s at fault there. I mean, I guess it’s probably … I’m thinking what the theories are. One of them would be the firm that got hacked. I mean, maybe you could argue their security isn’t sufficient.

Alvin Wolff:

I don’t know. Last week, I got a call from the bank. One of my checks got washed that I sent to the Missouri Department of Revenue. Someone intercepted it, took the name off and wrote it to themselves and cashed it.

John Simon:

So did you mail it or just they took it out of the mail or …

Alvin Wolff:

I mailed it, put it in the US mail, timely.

Christine Byers:

So do you think that the defense is pretty solid on this, that they only need to pay that $100,000 amount? I

John Simon:

Think if their coverage is $100,000, I don’t know how they’re going to get more than that.

Alvin Wolff:

Unless they have something like we have in Missouri, which would be toward victim’s compensation fund. If there’s a fund like that, maybe they can make a claim under that.

Christine Byers:

Interesting strategy. Another case that’s getting some attention is out of Illinois state court, so not far from us. Tool company, Chevron, North America, and retailer Lowe’s Home Centers were hit with a proposed class action accusing them of selling lithium ion batteries that overheated and in some cases caught fire. The companies are accused of intentionally not warning the public about critical safety details that would’ve resulted in consumers not buying certain batteries, according to the complaint. Now, the original complaint was filed in Illinois State Court and later removed to federal court by Chevron, who argued that the damages and the number of people allegedly harmed qualifies this to be heard before a federal court. So is that good news, bad news for the plaintiffs?

John Simon:

What do you think, Alvin?

Alvin Wolff:

It depends if the case is any good. If it’s a good case, it’s not a bad place to be. The federal court will make you get organized and they’ll move the case along. If it’s a bad case, haven’t help you. But the first thing I think about is when you pack your bags to go on an airplane, they always make sure you don’t have lithium batteries packed. So I’m not even sure the validity of any claims like that because everybody knows these batteries catch on fire.

John Simon:

Yeah. I mean, I guess the question is, should they catch on fire? So who knows?

Christine Byers:

Should there be warnings?

John Simon:

Yeah. I mean, we’ve handled battery explosion cases individually, not as a class action. And we’ve had a couple where folks were pretty badly injured because they’ve exploded while they were in their pocket, causing burn injuries and things like that. So who knows?

Christine Byers:

It’s time now to turn to our email inbox for the cases our viewers have sent in for the case doctors to diagnose. Now, just so everyone knows, we are not going to reveal where these cases came from. We’re not going to name any names or firms to protect the confidentiality of the cases. Instead, the case doctors are going to focus on just the issue in each of them. So as they say, the case doctors will see you now. So first up, we have a note here and it starts off, “Hi, John and Alvin. I have a client with a rotator cuff tear from a fall at a retail store. They swore they had no prior shoulder issues, but I just got medical records showing they had a partial tear diagnosed two years ago. Now I’m worried about credibility issues since they didn’t disclose it. I need to figure out the best way to handle this before deposition.

Should I try to rehabilitate them by explaining that they didn’t realize it was relevant or is there another approach you’d recommend?

John Simon:

I think you got to disclose it immediately and they’re lucky that it’s before the deposition. I think as long as you bring it out, give it to them ahead of time, give them the records, whatever you have that … Is it a medical record? Is it maybe a prior suit or claim? But I would take whatever you have, turn it over to the other side in advance, and that way they’re being truthful about it at the deposition.

Alvin Wolff:

And amend the interrogatory answer because that’s probably what happened. The interrogatory more likely than not ask the plaintiff, “Have you injured this part of your body before?” And they said, no. And humans are complex individuals. They do thousands of things every day, and it’s not unusual to forget things that happened years ago. I mean, John, can you remember what you ate for breakfast yesterday?

John Simon:

Not really, but I would just tell you, and when this gets into prepping your client for deposition generally, and if somebody asked me if I’ve ever had surgery on my left elbow, I don’t remember having surgery on my left elbow, but I would sort of qualify my answer about surgery on my left elbow. You just don’t know. I mean, I don’t remember. I had a case where it was a guy who was hit in a rear end collision, had back surgery, and he denied he had any prior back claims. And he was probably in his sixties when I was representing him and it turned out 30, 40 years earlier, it wasn’t an incident, it wasn’t an injury, but there were some records from a chiropractor where he was complaining of back pain. And so I don’t know. I just tell people that you got to be really careful.

No means no. If you say never, it means never. And unless you’re 100% certain about whatever it is you’re being asked about, you need to really qualify your answer. Maybe something like, “Wow, you mean ever in my life have I injured…” For instance, an injury versus a surgery. Surgery’s a little too specific, but a lot of times they’ll get asked, “Have you ever injured your back before?” Well, what does that mean? I can’t imagine any human being alive hasn’t had some sort of injury to their back at one point or another. And so people don’t … I think that when your client’s given that deposition, they don’t realize how what they say is going to be taken verbatim and used against them at trial and they’re going to be cross-examined with it. So you need to explain that to them and let them know this isn’t … You got to qualify your answer when you need to.

When you’re not 100% certain, use some words like, “I’m not really sure. I can’t recall at this point.” Maybe nothing real serious, but it may have been something minor or just explain it.

Alvin Wolff:

Or you can say, “Do you have a record you want to show me? ” And then they can’t play gotcha, which they love to do.

Christine Byers:

Alvin, have you ever had clients come up with, when you initially ask them, “Have you ever had an injury?” Come to find out later on down the road they did and kind of surprised you?

Alvin Wolff:

Well, particularly with bad backs. I mean, a lot of people go to chiropractors and the chiropractor records from before your injury, they can really kill your case because they’re the same record just about every time the person goes in, how bad it is, this is pain, eight out of 10, worst pain I’ve ever had. And it could be 10 years, but you’ve got something there that is going to put your client’s credibility and issue on the case.

John Simon:

Yeah. I think you really need to … What’s your saying, Alvin? You say you never have all the records, right? You never have all the medical records. And even if you request medical records from your client, which you should do before they give a deposition, you look at those records and they might show that there was some treatment at another facility. And for instance, I give a good example. If somebody comes into my office and they have a manual labor job, say a construction worker and they’re 45 years old and they come in with auto injury and their back is injured and I ask them, “Have you ever injured your back before?” And they say, “No.” Well, that’s kind of difficult to believe, and I don’t think they’re being intentionally withholding anything from their attorney. It’s just, as Alvin said, you’re being asked to recall things that happened 15, 20, 30 years ago, and unless it was really, really significant, a lot of people are going to not remember that.

So you got to be careful. You got to get the records beforehand. You got to be careful about how you answer the question. And if it’s something that is serious, it’s … And the other thing too, it’s not just being asked at the deposition, the medical records themselves, they’re probably going to ask about any priors or anything like that. So this is not guesswork. You need to be careful how you answer questions and people … You know what it is? It’s not a conversation. People think a deposition is a conversation a lot of times, lay folks, and they’ll come in and just say things and you can tell by the manner of expression or facial expression, the tone of voice. Like for instance, if in a deposition somebody says, “Well, how long ago did that happen?” And somebody will go, “Five years?” And you know the way they said it by looking at them and seeing them, that they have no idea whether it was five years or 10 or 15.

And it’s the same thing. None of that comes down, unless it’s a video deposition, none of that gets down on the paper. If you just have a paper transcript, it doesn’t really-

Christine Byers:

Translate.

John Simon:

It doesn’t translate. You have to verbalize the uncertainty. You need the qualification, the uncertainty to make sure that everybody who’s reading that later will understand exactly what it is you’re saying.

Alvin Wolff:

I would say a lot of times defense lawyers like to ask people, “Have you ever said this to your doctor?” And they’ve got a record right in front of them and the client has to say, “Let me see it. ” You just can’t say, “Counsel, this is not a closed book exam. You have an advantage. You’re going to ask me questions about records that I didn’t even write.” So I don’t know what’s in the records. You

John Simon:

May have never seen them, but maybe seeing them for the first time in their deposition. Oh,

Alvin Wolff:

Absolutely. And you can get all sorts of nutty stuff in records.

John Simon:

And the other thing you got to remember too is, and I tell this to my clients that you’re going to be asked about things in your past, prior accidents, prior claims, medical visits, injuries, and the attorney asking you those questions is going to know 10 times more than you will ever know about your own history because we’ve given them authorizations and they’ve got copies of your records, they’ve studied them, they’ve reviewed them, they’ve summarized them. So again, I think what Alvin’s saying is the best is, do you have a record for me to look at probably is the best way to handle it.

Alvin Wolff:

And every time I get a medical record, there’s another doctor in there whose records you need to get.

John Simon:

Yes.

Alvin Wolff:

And it just goes on and on and on. Never ends.

Christine Byers:

All right. Onto our next viewer question. Hi, John and Alvin. I hope you’re doing well. I wanted to reach out because I’m dealing with a particularly difficult opposing counsel in one of my cases. They’re being unreasonably obstructionist in discovery, delaying responses, and refusing to produce key documents. I’ve sent multiple meet and confer letters, but they continue to stonewall. Do you have any strategies for dealing with opposing counsel like this? And at what point would you typically bring this to the court’s attention? Any advice would be greatly appreciated. Well,

Alvin Wolff:

That’s never

John Simon:

Happened to me. Has

Alvin Wolff:

That

Christine Byers:

Ever happened to you? No,

Alvin Wolff:

Never. Just not since my trial last week.

John Simon:

Well, there’s a bunch of things that you can do, but I think first of all, you need to put the request in writing. You need to give a time limit. And if they’re not responsive, notice it up. File a motion to compel, do what you need to do under the rules, but you shouldn’t have to ask four or five times and let months go by to get basic information in a case. And here’s the thing too, if you wait too long and you get closer to trial, then what happens is they’re kind of running out the clock because you’re the one that needs to get the information to put your case on. So I think not getting it in time is as much the fault of the attorney requesting it as it is the attorney trying to delay the information. You ask for it. If it’s not given, you write a letter and say, “I need it by this date or I’m going to file a motion.” And guess what?

If that date comes and goes, you file a motion and you notice it up. And I think you’ll get a response at that point.

Alvin Wolff:

And when you’re dealing with a lawyer like that, I would say you have to start putting everything in writing. I’d say most lawyers that are local, I get along with pretty well. If I need something, they’ll send it to me. Don’t even need to make a discovery request. But when you’re dealing with someone that is being stopping you from getting what you need, you really have to put it in writing and you have to go to court like John says.

John Simon:

As a young lawyer, I was handling many more, a larger number of smaller cases. And it was so often that I would send out basic discovery about witnesses to the accident and prior history or whatever it is, just basic stuff. And you would get just objections to every single 20 interrogatories and there’d be 20 objections to them and requests for production. And so what I started doing is I would notice up a date for discovery even before I got the answers back. I would send out a notice. And that way, when it came in, I was like, “Okay, here’s a meet and confer.” I’d send a letter and say, “Hey, look, you do need to meet and confer.” And I’d say, “Look, I’m available to talk by phone if you want to talk about this. If you think we can work anything out, please give me a call.

If not, I’ll see you at the hearing.”

Alvin Wolff:

One thing I told a lawyer two days ago when I got his objections to every discovery request, I called him up and said, “I’m happy to send you a children’s dictionary if you don’t understand these simple English words.” What was the response? How

Christine Byers:

Did that go?

Alvin Wolff:

He started laughing and said, “They’re just there for placeholders. We’re planning on answering them.”

John Simon:

And the other thing too is a lot of times what you’ll see is an answer subject to an objection and we’re talking about discovery interrogatories or requests for production, and I’m not really sure what that means. It means nothing. If it’s subject to an objection, that means they’re not held accountable to answer anything.

Alvin Wolff:

Well, but they waive it. By answering it like that, they’ve waived the objection as I understand it.

John Simon:

Yeah. Just you need to be real prompt about getting the info. And usually, as I said, the biggest danger there is you’ve got a trial setting, you’ve got a scheduling order, there probably is a discovery cutoff and you don’t want to be behind the eight ball where you got all of this information and you’re just not getting answers. You really need to hold their feet to the fire. The other thing too is, if you don’t have a trial setting, having a trial setting can really help you get things done in the case. First of all, it gets you focused because now you have a trial setting, but it also really gives you a reason to insist that things be done in a timely manner. You can say, “Well, we have a trial coming up in seven months. I would like to schedule these six depositions and guess what?

Here are dates I have. ” And I usually put them 30 days out and I’ll say, “If these dates don’t work for you, please give me dates before that. I want to get them done beforehand.” But you need to have … Because the issue really is everybody’s busy. I mean, a lot of times, I wouldn’t say a lot of times, I think the minority of the time, it’s being intentionally obstructive and they don’t want to give you the information. I think more often it’s everybody is so busy and they’re jumping from one case to another and they’re putting out fires and all of a sudden you realize, wait a minute, three months from trial and I didn’t get the information that I needed. So you really need to be disciplined and insist on getting the information. And bottom line is the only way you’re really going to get it if somebody’s repeatedly not responding is to get the court involved.

Alvin Wolff:

And by the same token from the plaintiff’s standpoint, you have to constantly look at your discovery responses and keep supplementing them because that can get away from you and you can run out the scheduling order and the client says, “Oh, I’ve got these three doctors.” And you may not be able to use them.

John Simon:

Right, because you didn’t disclose them in time.

Christine Byers:

Elvin, how about you? How closely or how soon do you think that it should be escalated to the court’s attention?

Alvin Wolff:

It depends on my gut and how it’s going. I don’t know. It’s case by case. I would say that if it’s a person you really intensely dislike, you have to go to court early and often because it’s not going to get any better.

John Simon:

And if it’s just somebody not having enough time or not being responsive, just noticing it up will get you the answer. Nine times out of 10, when you notice it up and it’s just that they’re just not answering or providing the information, I mean, if you’re asking for a deposition of the defendant or one of their witnesses, a corporate rep, and there’s no response and you’ve asked three or four or five times, rarely do we file a motion for that. But if you do, I would say you’d never end up arguing it or hardly ever because they know that there’s no reason for them not to be doing

Alvin Wolff:

It. And if you just send them a depo notice for any date, a random date, they’ll call you up and say, “Look, I’m available this day. Can we do it then?”

Christine Byers:

So things start moving along.

Alvin Wolff:

That will remedy the situation most of the time.

Christine Byers:

Okay, gentlemen, that will do it for this episode of the Case Doctors. If you have a case that you would like the case doctors to dissect, send us an email at [email protected]. And here’s a QR code that will take you directly to our contact page. Once again, we will be keeping all names and cases confidential. Thank you for joining us and we will see you next time on The Case Doctors.

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