Life Care Plans: Make Sure They Are Assets Not Liabilities

Hey everybody, this is Keith Mittnik and in this series I've called it hand-picked highlights from Click and Pick with Mittnik. Hey everybody, on this episode I want to talk to you about something that comes up all the time in my Click and Pick with Mittniks and that is problems that arise with life care plans. And let me tell you the starting thing I must have said a thousand times and that is life care plans are meant to be an asset, not a liability. If there is a part of it that the defense is going to get all excited about and cross-examining on for 20 minutes and you're going to cringe the whole time. Think long and hard do I want it in. And oftentimes the parts that are the most flimsy, let's call it, most subject, subjectable to hard cross. They're usually small ticket items anyhow. Pull them. Sometimes it's a big ticket item that is very vulnerable and susceptible to cross. That's a harder decision but honestly it's about straight shooting. If you look at it hard and go, you know I just don't think a jury is going to buy it, I'm not buying it. Pull it. Because I've said this to lawyers of ours many times. Really good. But my gosh it's a $300,000 item and we're going to pull it. I said do you think the jury is going to give it to you? And they'll go, no. I said well then it's not whatever it is. $300,000 item. It's monopoly money. If you're not, if you're thinking they're not going to find it on the verdict form, what are you giving up? Or I put it a different way. You know what I say to our lawyers? I say if you were the defense lawyer and you could have a vote in this conversation, would your vote be please leave it in or please take it out? And I can't tell me times lawyer, oh no, if I was the defense lawyer I'd want us to leave it in. Well, doesn't that tell you something? It's not real money, but it is real cross examination. And don't wait until their report's gone out and it's been their depots are set or taking. Dig through it before. And if you're in a jurisdiction where ethically one, you know, he's in a draft report and you got to turn it all, I don't care. And if you don't then give them the final report, not early drafts, but if they're entitled to them, forgot to say don't hide them, give them the draft and have mixed plain, I included it because I believe in the doctor believe they need it. The council asked me to remove it and I complied. I still think, you know, there'd be in there, but I'm, they asked me to remove it or remove it. Now you look good and how they're going to cross them. It's not even in there. So think long and hard, clean them up early and if you have to clean them up again, sometimes things come up. They've ordered something and it's in the life care plan and they try and it doesn't work. And some people say, I'm just going to leave it in anyhow. Well if it didn't work, pull it. I had one one time where there's a bunch for a medication. They were allergic to it. And they were trying it trial to say, well, there's an alternative medicine. They may not be allergic to. Well you know how well that went. They hadn't tried the new medicine. It was a new opinion. It was speculative and it was just a mass. I'm like, just pull the stuff. So clean them up to make sure their assets not liabilities. That's number one. But number two, even after you do that, you don't pull everything. Let me, let me give you an example. They recommend surgery and your client says, I'm fairly young. I don't want to have surgery now. A, I'm scared. B, I can tolerate this. I don't, it's not so bad that I can't handle it. And C, I've been told it may make things worse. It may not help. It may help. But it's not a cure. And B, I've been told the earlier do it, the more likely you're going to have to have it redone at some point. The later you go, the more likely it's only going to be one time. Well, that's a perfectly reasonable reason for your client not to have it. And it would be unreasonable to take it out just because today they haven't gotten it. Because it's a verdict for all time. So how do I deal with these where the client hadn't had it yet? Or his said, I don't want it now. But it's a legitimate item. It's not one of these, you know, hold your nose to. It's just susceptible to a cross, but the cross honestly, while it's got some legitimacy, they're going too far. If they would just say, well, you know, we'll never know if they're going to get it. It's kind of spaccular because they're not having it now. They don't do it. They go too far and they say, well, they haven't had it now. So they don't need it at all. And this is funny money. And that's just not fair. So how do I package this in a way to where jurors look at it and say, you're not pushing down the loop. This is perfectly reasonable for them to include it. Even if the jury ultimately concludes, they're not going to include it in the verdict. There's zero offense in you, including it. It's how you present it. It's the perspective in the circumstances. It's how you talk about it. In a way I like to talk about it as a menu. I say the items in this life care plan are like a menu and you don't have to include everything on the menu. But if they're not on the menu, you ladies and gentlemen of the jury are not allowed to even consider it. Period. If it's not in there, supported by medical testimony and the fair and reasonable amounts, you are barred, banned, prohibited to even consider it. And so out of respect for you, I've included that surgery that my client has said she doesn't want to have it now. And they're going to tell you what that means. She probably isn't going to have it so it shouldn't be on there. You know what? Her doctor says, regardless whether she wants it now, that's her choice. It is elective, but she ought to have it now. But it's my opinion she's going to get worse with time as the natural aging process overlays on top of the damaged links in her spine. And as it gets worse and worse, she's going to reach a point where that I can get by without it is going to reach a point where I just it's not worth it for me anymore to put it all. So the doctor's opinion is she needs it now, would benefit now. And certainly it's going to get worse and believes she's going to reach a point where she's going to have it. So the doctor is adamant it belongs on there. So we have included it. Why? Because if we don't put it on the list, you're not allowed to consider it at all. And out of respect for you, we want to keep your options open. You're spending a whole week of your time and you want to get it right. And I don't want to tie your hands because I've decided to pull it off because of a decision made today when this is a verdict for all time. So I'd respect for your choices. It's on there and I'd respect for my client because my client may very well consider doing it in the future and I wouldn't be doing right by my client. I just said, let's take it out so we don't have to hear about it. So it's in there as a menu item. And at the end of the day, you folks get to decide, you know what? I think she probably is and if you believe that, it ought to be included on your verdict. If you say, I believe she probably isn't, then it shouldn't be included. But the only way you can have that choice as jurors is if it's on the presentation or on the menu. So that's why we have included it. And I would suggest er, doctors in a pretty good position to tell you what's likely to happen. Now, you see when you do that, folks, do you think they're going to get any mileage attacking you or your client or including it? You're the voice of reason. They're going to look unreasonable. So you've lost nothing. So don't put everything where there's a cross on it into the pull it out category. The only ones I pull out are the things I go, that sounds ridiculous. It sounds overreaching to me. I don't want it because I'm a straight shooter and I'm never going to sacrifice mine or my client's credibility over something somebody included on a list that I, that doesn't sound right to me. But if it is a legitimate concern and need that just hasn't happened yet, that's a whole different animal. All you got to do is again, just be open and candid about it. You're going to get to decide, but it's on the menu. And if it's not, you don't get to decide anything. Sure. to have all their options available. And I'm certainly not going to cut my clients out, because the defense doesn't like it. I hope you all enjoyed it. I hope you found it useful. And I hope you don't mind sharing it with colleagues or friends who may be facing a similar situation, but didn't have an opportunity to listen to it, because we're all in it together for the same goal, justice for our clients.