Articles

On July 25, 2017 I presented at the American Association of Justice annual convention in Boston. Part of the Professional Negligence Program was my presentation on "Maternal Death by Influenza: Proving Cause."

I wrote this article after presenting a medical negligence case to a Cook County, Illinois jury who returned a favorable verdict for my client. In this case, the client had an erratic past. His wife had once reported that he had become abusive to her at times. This individual had suffered greatly leading to a leg amputation below the knee as a result of what we claimed to be the treating physician’s negligence. The importance of witness preparation in this article arose principally out of readying this person for trial testimony. The hard work we did in preparing our client for trial resulted from what I described in the article as “rave reviews” from the jurors. In other words, the jurors at the close of the case approached me and asked for the opportunity to speak to the client. Several of jurors voiced their overwhelming approval of the way he presented himself to them.

I wrote this article about voir dire which is jury selection with a trial consultant. We presented this paper to lawyers at a seminar designed to assist trial lawyers on how best to present cases starting with jury selection. I have always said that the most difficult part of a jury trial is selecting or deselecting the jurors. Most jury trials start off with the judge outlining how jury selection will be done in that particular court. In federal jury cases, the federal judges generally conduct jury selection without the assistance of lawyers. In my opinion that is a serious disadvantage. I know from other attorneys in other states other than Illinois, which in state courts around the country judges will not allow lawyers to participate in jury selection at all. On the other hand, in states like New York, the lawyers without the judge’s assistance are allowed to have an open discussion with the prospective jurors and allow themselves great leeway in selecting the individual jurors. In my practice, I usually have a trial consultant with me who helps with jury selection.

This article was co-authored with my brother, Dr. Jerold J. Kreisman, who is a published author and practicing psychiatrist. We collaborated on this because of the fact that jurors, like everyone, come to a situation with some preconceived notion of blame, responsibility or just biases depending on the subject of the case. The challenge for lawyers is to be able to pose open-ended questions that give permission to each juror to discuss their particular biases even if they don’t think they have them. It is not so easy for anyone to open up to complete strangers and reveal what those biases might be. In jury selection, often times I will make use of trial consultants or psychologists who assist in analyzing prospective juror’s background and their answers to questions that are posed in jury selection. In several of my cases the judge allowed us to present in advance of jury selection jury questionnaires. The questionnaires are designed for each case to assist lawyers in making intelligent decisions on which jurors would best serve on a jury for a particular trial.

My brother, Dr. Jerold Kreisman, has written extensively on his medical specialty, borderline personality and has written two widely read and highly regarded books on the subject, has updated one of the books, “I Hate You, Don’t Leave Me” and is in the process of writing another book for publication in the near future.

In Illinois state court lawyers in discovery have an opportunity to take discovery depositions of the parties, the experts and witnesses. These discovery depositions are not evidence but they are used for cross-examination purposes. If a witness is unable or unavailable for the trial, in some cases, with the permission of the court, witnesses, parties and experts can be deposed by evidence deposition for which that testimony would be submitted to the jury.

Importantly, depositions can be both useful to the benefit of a case and can be devastating if the witness, expert or party makes concessions, admissions or errors in judgment in the discovery depositions. The point of the article that I wrote was to inform lawyers about the importance of preparing witnesses for deposition. I know from experience that other attorneys will literally ask a party to appear in their offices an hour or two before the start of their deposition. That is not my practice. I have always demanded my clients meet with me days or weeks in advance of their deposition to prepare. Lawyers regularly appear at depositions but most citizens have never given a deposition. I believe that it is imperative to prepare a witness for deposition by getting the person acquainted with all of the aspects of the process. When a witness is prepared the person will be more confident in giving truthful, straight forward answers.

This article deals with what many consider to be unconventional in telling a story. If you think about movies, there are flashbacks and there are starts of movies that begin at the end of the chronology of events. The same can be said at a jury trial. This article addressed the technique of presenting the most important and memorable piece of the story at the beginning. Most individuals, including jurors, are apt to remember things that are first presented as important. The attention of a jury as the case goes on for days and sometimes weeks, is short. So, the idea of primacy meaning important facts revealed at the beginning, are saved and collected as memory of the jurors in forming their decision.

In contrast, when potential clients tell me on the telephone or in person about their particular issue with a physician or hospital, they start at the beginning. And they tell their story in chronology order form the first thing that happened to the last thing that happened. In my many telephone and person-to-person conferences with potential clients, I always ask the question of how they are doing presently. In other words, how did you end up? In a jury trial, the most important facts should be emphasized at the start and returned to throughout the trial.

This article on focus groups stresses the importance of test-driving case facts to selected focus groups well in advance of trial. In my practice, I have for many years utilized focus groups many times to serve as a means in which to uncover weaknesses in my case. Most times I have used the expertise of a trial consultant who helps with fleshing out weaknesses in the case and learning from focus group jurors what they found to be most important, least important or devastating to the case. Generally, I use a media company to select the focus group jurors ranging in numbers from 12-25 and splitting them in two after a brief summary of the case presented by someone other than myself for the plaintiff and then another person, many times myself, presenting the case on behalf of the defendants. In that way the focus group jurors have a very brief summary of facts that they can use to form opinions about issues in the case.

One of the important uses of focus groups is to develop themes. Consider a favorite movie. In that movie, there is an underlying theme or themes that stand out. The same use of themes is critical in presenting a case to a jury. The jurors act as the reviewers and final deciders of the facts. In all cases, we want one or two themes of the case to be repeated so that the jurors both remember those themes and analyze the case taking into account the themes.

Without being overly zealous, it is important to weave the themes into the case through the witness testimony, exhibits and arguments presented by lawyers to the jury.

In this article about radiographics and imaging in medical negligence cases, I wrote about radiation therapy for cancer patients and about radiation use from the point of view of radiologists. The article was a set of questions and then answers that I presented in a way to advise doctors and medical practitioners on best practices and ways to avoid medical negligence in radiology matters.

This article was published in the Illinois Bar Journal. The central focus of the article was the Illinois Supreme Court decision in the case of Wendling v. Southern Illinois Hospital Services. In that case, the Illinois Supreme Court clarified conflicts that had arisen in some of the Illinois appellate districts with respect to the rights of hospital lienholders.

In this article, I addressed medical negligence in transplant cases. Transplantation of organs is a lifesaving process. Many of us have read about liver transplants, kidney transplants, lung transplants and heart transplants. The danger of transplantation of organs are many. The most critical is the replacement organ is not rejected by the recipient’s body. It is natural for a human body to reject a foreign object that is placed in the body because of its natural objection to any object not a part of the human system. However, given medication and other carefully scrutinized donor organs, recipients today have higher success rates. In one of our cases, our client needed a liver transplant because of liver failure associated with the use of a dietary supplement. Fortunately, this young woman has prospered after the lifesaving liver transplant.

Proving Future Damages for the Elderly

This article was published in Trial Magazine, monthly journal published by the American Association of Justice (AAJ). In this article I describe how best to handle medical malpractice cases for elderly clients. Too often jurors come to a case with a bias against older plaintiffs who are claiming injury caused by medical malpractice. Some believe that the reason behind the bias shown to an older plaintiff is that the elderly have a shorter time to live. On the other hand, there are jurors and individuals I have addressed in focus groups who would come to a different conclusion. Nearly the opposite in that the elderly have a shorter time to live and the value of the remaining years is much more valued than even a younger person. This article describes the best approach is to overcome those biases in jury trials.