Monday, March 2, 2015

A Hearsay Reminder

I started in this business a few years ago with a small law firm in Jacksonville. I was fresh out of law school and did not have the luxury of waiting for bar examination results. I needed to work, and I needed work that could be done by a law clerk. I was turned down by some of the biggest and most prestigious law firms in Florida. 

This small firm had a converse problem, and in that we found complimentary solutions. The firm had a room full of files in which the litigation had been concluded. However, at the time, the Florida workers' compensation system had a provision called the Special Disability Trust Fund, or SDTF. The SDTF collected funds from all Florida workers' compensation insurance carriers and held them in a trust. If certain legal foundations could be established in a particular workers' compensation case, that carrier would be entitled to reimbursement from this trust fund for a portion of the benefits that had been paid to the injured worker.

It was not the sort of work in which the firm's lawyers took much interest. It was not exciting, involved no depositions or hearings, and was generally considered by attorneys to be beneath their skills. As a law clerk hoping to pass the bar, it was good work for me. It was plentiful. But more important for me, it was interesting. The entitlement to reimbursement was predicated upon establishing "merger" between the work accident and some other medical condition as listed in the statute. 

Merger was a legal concept from the statute. Understanding that was reasonably simple. But the foundation of the merger was the interaction of the medical conditions. That was new to me. I had not attended medical school. I had no medical background. I found myself studying medicine. What would later become the ever-present Internet was not yet in wide use (I did have my own computer, leading to the senior partner summoning me to a closed-door conversation in which he explained that lawyers did not type and that I needed to decide if I wanted to be an attorney or a secretary). 

I did the research in books. The Merck Manual became my friend and I kept a copy of it on my desk. I spent hours in the library reading and copying articles to better understand the diseases and maladies that were listed in the statute. I found value in hard work. I drafted affidavits for employers and doctors to sign, and learned a great deal from the comments and suggestions of the attorneys who graciously reviewed those materials and sent them out for execution over their signature. 

I learned a great deal about medicine. I learned a great deal about the law and practicing the law. I learned a bit about business, and that both the law and medicine had become businesses. I learned lessons from failures, and enjoyed some successes. After I was admitted to The Florida Bar, I continued to work on these claims. 

One of the business, medicine, law lessons I learned came when an affidavit was returned unopened by the Post Office. It had escaped my attention that this particular physician had passed-away months before I arrived in Jacksonville. The treating physician in the case, with his wealth of knowledge and documentation of the injured worker's maladies, would not be able to provide the testimony that my client needed. 

The business lesson came first. I worked from the deceased physician's specialty and identified others with the same credentials. I sought them out in hopes that I could procure the testimony required to establish merger. I found them reasonably easy to find, their staffs easy to converse with, and the physicians were amenable to review the records and the proposed affidavit. But, for a price. Medicine is an art and a science, but they taught me it is also a business. Each wanted to be paid for their time and effort. I gained great appreciation for the business aspect of medicine. 

The medicine lesson came next. The physician with whom I ultimately reached an agreement for services studied the records I provided. He called one afternoon, and I anticipated good news. Alas, he had more questions than I had. Of course his were more informed questions. Essentially, he told me that the records I had provided had to be incomplete. His review identified some holes in the narrative and he suspected some test results and other documents were missing. Further research proved him correct. Physicians like complete factual backgrounds.

As I thought I had reached a conclusion, that same senior partner and I had a casual conversation over coffee one morning. As I recounted my perceived success in the case, he asked the legal question that I had completely missed. If I had to proceed to trial, how would I admit the deceased physician's medical records over a hearsay objection, an authenticity objection, or both. Perhaps most first-year associates think of such things naturally. I did not.

The death of a witness is a complication for any lawyer. It is a potentiality for which every lawyer should prepare and study. It is not that the objection(s) will be raised, it is that the objection(s) may be raised. Counsel has to be ready to respond in that eventuality, concisely, succinctly, yet thoroughly. 

The death of a witness has confrontation nuances. The recent decision in Cranford v. Ohio Board of Worker's Compensation provides a reminder of this. There the injured worker was provided an opinion by her physician. She had the presence of mind to question the doctor under oath regarding some causation opinions. Preservation of evidence is always a good idea. Before trial, the physician passed-away. 

When the injured worker sought to introduce the physician's sworn statement as evidence, the employer objected on the grounds that it was hearsay. The employer had not been afforded any opportunity to cross-examine the doctor. The testimony was not admitted. The court provides a detailed analysis of what constitutes hearsay, and the appropriate use of various exceptions to the hearsay rule.

Another lesson of this decision is the importance of a record. The court noted it was hampered by the absence of transcript of the trial. The court was provided only a transcript of a pretrial hearing at which the evidentiary ruling on the hearsay objection was initially decided. The court was left to "only speculate whether the admissibility of Dr. Hoffmann's sworn statement was addressed at trial, and thus whether the alleged error was preserved for appeal." Having been denied the ability to present this in th pretrial order, the party should have raised the issue again at trial. The case is good reading for a reminder on hearsay. 

The fact is that life is fleeting and no one knows when it might end. Despite this, the business issues remind us that it is impractical to depose each expert after each appointment. There will always be some risk. However, if one elects to expend the resources to procure a sworn statement from a physician, it may be that the cost in both time and money might not be substantially greater to make that event a deposition instead. Had Cranford taken a deposition instead of a sworn statement, the case might have concluded otherwise.

When focusing on preservation of evidence, some consideration is advised regarding how that evidence will be used. The real lesson of all of this though is that no matter what we do, we will all make mistakes. They will be pointed out by senior partners, opposing counsels, mediators and judges. The critical point is that we take advantage of the lessons that these will teach us, that we grow and learn not to repeat those mistakes. 

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