Civil Matters
WHILE MOST LEGAL PROBLEMS IN FICTION INVOLVE CRIME, the civil side of the law can be equally mysterious. First, we’ll discuss the pretrial phase known as the discovery process. Then we’ll look at medical malpractice, some issues related to life insurance, and that old bugaboo, the oral contract.
What is the discovery process?
The discovery process is the curious name given to the formal exchange of information in a lawsuit. Although it’s used to a limited degree in criminal cases, it’s often central to civil litigation. The most common methods are written discovery requests and depositions.
Written requests include interrogatories, requests for production, and requests for admission. Interrogatories are written questions seeking specific information—names of witnesses and medical providers, insurance information, and details of damages claimed, for example. Requests for production cover documents, photos, and other physical things. Requests for admission ask the other side to admit certain facts, such as the location of a slip-and-fall accident, that a required payment was not made, or that a deed was not timely recorded.
A party responding to requests for production must thoroughly search its own records, including all electronic files, whether on computers, servers, or cell phones, and produce all responsive documents. While paper records are still common, document production now typically includes CDs of electronic files, photos, and scanned records. In much litigation, counsel rely on each other to produce all relevant documents, especially in cases like auto accidents where most documents—medical records, wage loss information, and so on—are in the control of one party or her witnesses and the defense has limited records. However, the requesting party still has the right to review a party’s records itself, sending young lawyers or legal assistants to plow through a storeroom full of boxes of dusty documents or conducting a forensic search of the other side’s electronic files. What isn’t produced may be as important as what is. For example, a service tech testified that he kept detailed records of all service done on a generator that failed and caused an expensive loss of frozen fish, but no such records were found. The omission raised more questions: Was the service in fact performed? Is the witness unreliable? Did the company, or its lawyer, fail to make a thorough search? Or did it destroy important records, whether intentionally or innocently, called spoliation of evidence?
In much litigation, counsel rely on each other to produce all relevant documents.
A party who fails to respond to discovery requests, thoroughly and on schedule, may be sanctioned. Most common is an order to pay the other side’s fees for bringing the dispute to court. The judge may also rule that late-produced evidence, including expert testimony, can’t be introduced at trial. If a party repeatedly refuses to respond to discovery in a suit for money damages, the judge may enter a “summary order” finding liability, leaving only the amount of damages for trial.
Depositions are sworn testimony, taken by the opposing lawyer in front of a court reporter. Who is deposed depends on the nature of the case and may focus on liability witnesses, damage witnesses, or both. Some witnesses are neutral, although if one side intends to call them at trial, the other might depose them to find out what they will say.
The deponent list usually includes the plaintiff and defendant, and lay and expert witnesses. In an auto accident, it might include eyewitnesses, friends and relatives to testify about changes in the plaintiff since the accident, treating physicians, possibly an accident reconstructionist, medical experts, and an economist or vocational counselor to testify about wage loss and employment prospects. In a product liability case, witnesses might include the manufacturer, distributor, and designers, design experts, and experts in fields related to the specific claims: a metallurgist in a claim involving a chain that broke and hit a young man in the eye, or experts on chemicals and chemical sensitivity in a hairdresser’s claim against a product manufacturer. In a case alleging sexual harassment on the job, potential witnesses include the parties, other employees who witnessed the harassment or who will deny it happened, and the plaintiff’s doctor or therapist to testify about the psychological impact on her.
Depositions are critical to both sides in finding out the facts of a case and evaluating liability and damages. They also offer the opportunity to assess a witness’s credibility and jury appeal. Many a case has settled before trial because a lawyer realized in deposition that his client would not make a good impression. Depositions can be used at trial if a witness dies or is unable to testify in person for reasons specified in the rules of court, or to impeach a witness—that is, to attack her credibility by showing that she previously gave contradictory testimony.
Many a case has settled before trial because a lawyer realized in deposition that his client would not make a good impression.
Depositions are often filmed if the witness might not be available for trial, e.g., she’s elderly or terminally ill, has travel plans, or lives out of the area. It’s common to play video or DVD depositions of doctors at trial, usually because of the expense of bringing them to trial, especially if they have to travel. Some deps have an informal feel, while others are contentious.
When a lawyer walks into an expert’s deposition, the first thing she does is ask to see the expert’s file. This is fair game, although an appraiser I once deposed didn’t think so, becoming so irate that he started yelling, stood, and lunged across the table at me. Fortunately, his arms weren’t long enough. The court reporter was so alarmed that she knocked her machine over. Opposing counsel was able to calm him down and explain that I had the right to look at his file to see what data he had relied on, any changes from earlier drafts of his reports, and even his notes and billing records. (When he called a few months later to ask me to represent him in a divorce, I declined.)
TIP: A plaintiff’s lawyer should also make a point of looking at the client’s doctor’s records in person. In doing so, we once discovered that clinic staff had not produced the complete file we asked for, deciding we only needed records they considered related to our client’s back injury from an auto accident. We also learned that the plaintiff had neglected to tell us about prior surgery and that his doctor suspected the man of taking narcotics prescribed for his wife. Better to learn those things sooner than later.
Discovery may also include a site visit, such as a guided tour of a house in a construction defect case.
Discovery disputes may be resolved between counsel or go to the judge on a motion—a written request to order that specific records be provided, require the plaintiff to undergo an independent medical exam, or impose sanctions for failing to produce documents. Most are routine—a little testy, perhaps, but not ultimately affecting the outcome of the case. Some do, though, as in the cases of the service tech’s log and the medical records. Failing to timely identify an expert or produce his report may mean the witness won’t be allowed to testify. A judge might sanction a defendant for failure to produce critical records by entering default judgment on liability, leaving the jury to decide only what damages will compensate the injured party.
My character is a doctor being sued for malpractice by a greedy lawyer. What standards apply? Can the doctor countersue the lawyer?
Medical malpractice claims requires proof that the doctor violated the standard of care. That is, did he use the skill and care that doctors in that field agree should have been used in such a case? Expert testimony is almost always necessary. Proof of a bad result is not enough to show malpractice.
Proof of a bad result is not enough to show malpractice.
To prevent unnecessary malpractice suits and encourage “fair and equitable” settlements of well-founded cases, some states have established mandatory review panels. An abbreviated version of the case is first presented to a panel of doctors and lawyers, which considers whether there is “a reasonable inference” of negligence. Only after that process is complete can suit be filed. Panel decisions aren’t binding, but give each side a good idea whether the case will succeed, and they often lead to early settlements.
People angry over being sued often ask if they can file claims of their own. In a “med mal” case, the answer is almost always no, because the patient will not typically have breached a duty to the doctor, unless it’s to pay him. The term “countersue” refers only to suits against the person who filed the suit, and doesn’t apply to a suit against the lawyer. There again, grounds don’t usually exist. But if the suit was truly frivolous, your fictional doctor may be able to obtain sanctions under Rule 11 of the Federal Rules of Civil Procedure; most states have similar rules. He’ll need to show that the lawyer had no reasonable factual or legal basis for filing the suit, or brought it for an “improper purpose,” including harassment. Sanctions include paying the other side’s attorneys’ fees and litigation expenses, or paying a penalty to the court, as a deterrent.
The classic portrayal of a med mal suit is The Verdict, starring Paul Newman as Frank Galvin, a washed-up alcoholic lawyer who takes on a loser of a case and discovers that buried in the boxes of medical records is evidence of appalling hospital malpractice and a cover-up by the Catholic church. Galvin cleans up, dries up, falls down, falls off the wagon, and eventually redeems himself and wins the case. Along the way, he’s seduced by a beautiful woman, who is sent to set him up and trick him up, and it almost works. For drama, it’s hard to beat.
Can a character buy a life insurance policy on someone else, without that person’s knowledge?
By federal law, insurance is left to state regulation, and, of course, local laws vary. In most states, the owner of the policy—not the beneficiaries, but the person who buys it and pays the premiums—must have an “insurable interest” in the named insured, unless the named insured or his estate is the beneficiary. An “insurable interest” typically means either being financially dependent on the named insured, or if owner and insured are closely related by blood or law, having “a substantial interest engendered by love and affection.” Other financial relationships may also qualify, such as a debt from named insured to policy owner. The obvious purpose is to eliminate motives for buying insurance and knocking off the named insured to collect the booty.
A corporation can buy life insurance on its officers and directors, called “key man” insurance, and provide life insurance as part of an employee benefit package. Film producers often insure their stars, because their contractual relationship gives the producers an economic interest in the actors’ life and health. In some states, charities may buy policies on named insureds who consent, as a way of providing a benefit to the charity when the insured dies, if the insured pays the premiums. A person always has an insurable interest in himself or herself.
Film producers often insure their stars, because their contractual relationship gives the producers an economic interest in the actors’ life and health.
However, the insurable interest requirement is sometimes treated as just a box to be checked on a form. In 2008, two elderly Los Angeles women, Olga Rutterschmidt and Helen Golay, were convicted of first degree murder and conspiracy to commit murder for financial gain in the deaths of two homeless men they met at shelters, Kenneth McDavid and Paul Vados, by staging fatal accidents. Suspicion focused on the women when investigators saw similarities between the two hit-and-run deaths, which were six years apart, and discovered that the same women had purchased multiple life insurance policies on the men, collecting $2.8 million. On the applications, one woman claimed to be the man’s cousin and the other his fiancée. The prosecutor described the case as “like Arsenic and Old Lace, except that it doesn’t have Cary Grant,” and the media nicknamed the two women “Black Widows.”
In most states, if a married person wants to buy life insurance on his or her spouse, the spouse must sign the application or be given notice of it. Again, the public policy reason—that is, the legislative goal—is to protect the person insured from being killed for the payout. In real life, many insurance companies require medical exams or other information directly from the person to be insured. But that’s the kind of plodding detail that often sinks a plot. Leave it out and let your black widows—or widowers—spin their webs.
Is an oral contract binding?
Generally, yes. The main problem with oral contracts is proof of their terms. Witness testimony, notes, and the parties’ actions may be used to prove what was agreed.
Some contracts, though, are required to be in writing, by laws called the Statute of Frauds. The term is a bit of a misnomer, as the purpose of the requirement is to prevent fraud. Covered contracts include real estate sales and leases for more than a year, contracts that will not be performed within a year of agreement, agreements to guarantee another person’s debts, and others. Montana requires agreements “made upon consideration of marriage other than a mutual promise to marry” to be in writing; I still haven’t figured out what an agreement like that might be.