An Autopsy on the Fake Bad Scale: The Political and Scientific Ramifications of the Methodology and Application of the Fake Bad Scale Against Persons with Brain Impairment

From the IBIA NeuroTrauma Letter, Issue 03 2009
(published by HDI Publishers)

By: Sims, Dorothy, JD, Perrillo, Richard, Ph.D., Berman, Richard, JD.

The Minnesota Multiphasic Personality Inventory-2, is the most commonly administered psychological test in the world.¹ In 2006, the publishers of the MMPI-2 adopted “Fake Bad Scale.”  The scale consists of 43 statements to which the patient responds “True” or “False.”  Unfortunately, many of those same statements are statements one would expect a person with brain damage to endorse.  Traumatic brain damage can cause attention and concentration difficulties, confusion, anxiety and depression.² Persons with cognitive dysfunction and related emotional issues such as anxiety, depression and/or physical problems due to a brain injury may endorse items on the scale such as anxiety symptoms, depressive symptoms, head pain and/or confusion.  The patient incurs points on the Fake Bad Scale by admitting to the very symptoms of brain injury.³ In fact, if one removes the items in the scale which are symptoms of brain impairment, the patient may very well pass, thus making elevations on the Fake Bad Scale potentially an indication of true brain impairment versus symptom amplification or ,in worst case scenarios, malingering.

The distributor sells an in-depth computer analysis of the results called The Minnesota Report in which there is no discussion of the Fake Bad Scale, unlike the other traditional validity scales.  The absence of FBS discussion is due to the fact that Dr. James Butcher, the creator of the report, did not include the FBS in his interpretive report since he believes it is not reliable.⁴ Additionally, there are no alternative explanations for internally consistent, very high elevations on the FBS as exist in other traditional validity scales contained within the MMPI-2 manual.   For example, an extreme elevation in the F scale (t > 110) is not limited to “exaggeration,” but can also include, confusion, random responding and severe psychopathology.⁵ The Fake Bad Scale pulls physical and psychiatric symptoms that legitimate patients with brain injury   could endorse.  This test was first called the Fake Bad Scale, then referred to as the FBS, and is now referred to as the SVS according to the publisher.⁶ Since the scale is so widely recognized by its original moniker, it will continue to be referred to as such in this article.  The original scale, Fake Bad Scale, suggests that elevated scores indicate that the patient is lying.  This tremendous potential for harm cannot be undone once the mere name of the test is uttered.  Even the acronym FBS, then SVS, presents little solution, as an inquisitive juror could Google the initials and clearly be swayed by the underlying name.

Use of FBS in Cognitive Malingering

The use of the Fake Bad Scale to support cognitive malingering may violate the National Academy of Neuropsychology published methods for assessing symptom validity which states “Invalid performance on a measure of personality” (such as the MMPI in this case) “cannot be used, a priori, to determine malingering of cognitive tests.”⁷ The FBS is not an effort test and should not be used as one.

The Adoption of the Scale

On 1/23/06, the publisher chose eight psychologists to send a request by e-mail asking for their reviews on the FBS and only gave the reviewers several weeks to respond.⁸ The researchers were sent only two articles, both in favor of the scale. In so doing, the publisher failed to send the article with the largest sample size that was critical of the scale.⁹ The actual recommendations by the eight reviewers failed to reveal consensus as to how to score the FBS .  Should the FBS be used to diagnose malingered PTSD? Cognitive feigning? Faking physical symptoms? All of the above?  Some of the above?¹⁰ The distributor’s website cautions doctors to consider the FBS which may be elevated due to legitimate physical conditions, but does not say how to do this.  Remove points?  Don’t give the test?  Give it little or no weight?  The actual scoring method is also a problem.  There are so many suggested scores above which one might conclude exaggeration, (20, 22, 23, 24, 26, 28, 29, and 30)¹¹ so as to make use of the FBS, relative to its validity, questionable.

Furthermore, any scale created to be used only in forensic settings makes it inherently suspect.  Imagine an MRI of the brain which is reliable only if the patient is in litigation.

The publisher’s interpretation manual for the MMPI-2 was published in 200l and makes no reference to the Fake Bad Scale.  Recently, a newer manual has been published discussing the MMPI-2 RF (a shorter version of the MMPI-2 with its own set of issues) and this manual gives instructions on how to use the Fake Bad Scale.  Unfortunately, it’s not the same Fake Bad Scale.¹² The scale discussed in the manual contains only 30 items, while the original Fake Bad Scale contains 43 items.  What happened to the other l3 items?  Why were they excluded and on what basis?  Which Fake Bad Scale is more reliable, specific and/or sensitive to exaggeration… the longer version or the shorter version?

The RF manual reports, on page 23 of the MMPI-RF Technical Manual, that the internal consistency (reliability) of the Fake Bad Scale is only .50 for men and .56 for women.¹³ The sample was based upon 1,138 men and 1,138 women.  Internal consistency refers to whether the items on the scale hang together, thus measuring a similar construct.  If they do not, then the scale measures multiple constructs, some of which may be unknown.  The lower the internal consistency of a scale, the lower its validity is.  For example, if an intelligence test also measures anxiety, does the score represent intelligence, anxiety, or both?  Unfortunately, the FBS scale was not a “new” scale with “new” items, but borrowed items from other scales that measure real disturbances such as cognitive dysfunction.¹⁴

In a recent newspaper article discussing issues surrounding the manner with which tests/scales were adopted, University of Minnesota officials stated they were willing to
let the marketplace decide”.¹⁵ As one might expect, the FBS scale tends to be used more by defense-oriented practitioners in personal injury lawsuits, since the scale depicts a large percentage of clients as “malingering.”¹⁶ Should the marketplace decide if a scale is scientific?  If a scale frequently concludes malingering and is embraced by the defense industry, does that fact make it scientific or simply profitable?

Bias Against Persons with Brain Injuries

On 5/3l/07 in a letter by Arnie Abels, Ph.D., Chair of American Psychological Association’s Committee on Disability Issues in Psychology, Dr. Abels expressed concerns that the scale had the potential to harm those with disabilities and recommended a review by Buros Mental Measurements, an independent organization.¹⁷ If the scale is valid then why is there reluctance to have an independent evaluation?  The authors are unaware of such an independent review ever taking place.

The Courts

Back in January, 2002, Doctors Butcher and Arbisi and others found “the FBS is not likely to meet legal criteria in forensic cases because of the lack of empirical validity …”¹⁸ (emphasis supplied).  Their prediction rang true.  If a patient or examinee admits to legitimate symptoms secondary to brain injury on the FBS, points are accumulated which can result in a score that supports the contention of malingering.  Five different judges had hearings on the FBS and ultimately rejected the scale.¹⁹ Last year a judge found, “the FBS has significant potential to negatively impact persons with true disabilities.”²⁰

Critique of Butcher et al. by Ben-Porath, Greve, Bianchini and Kaufmann

In an article responding to Dr. Butcher’s concerns about the FBS, the above-referenced authors support the use of the FBS.  The critique finds, “When the FBS is elevated at levels described in this paper, our best science indicates that the examinee was likely over endorsing symptoms, a fact that plaintiff attorneys misconstrue as the expert calling the plaintiff a fake, a fraud, or a liar”²¹ (emphasis supplied).  According to the American Psychiatric Association, malingering “is suspected if any combination of the following are observed

1. Medicolegal context of presentation
2. Marked discrepancy between the person’s claimed stress of disability and the objective findings
3. Lack of cooperation during the diagnostic evaluation and in complying with prescribed treatment regimen
4. The presence of Antisocial Personality Disorder “²²

The author of the scale itself discusses the FBS in the context of  malingering which also includes “intentional production of false or exaggerated symptoms.”²³ Intentional misrepresentation is dishonest and does suggest lying. This can result in a plaintiff with a legitimate brain injury being prosecuted for perjury and/or insurance fraud.  Claims of “malingering” are not to be taken lightly and claiming a scale, originally called the “Fake Bad Scale”, has nothing to do with dishonesty or faking is inconsistent with logic.

The first article authored by Dr. Lees-Haley discusses the scale’s use in differentiating malingerers.²⁴ The publisher’s website discusses credibility of symptoms and lists references discussing “malingering”.²⁵ In an outline presented to ABA members, co-author of this critique, Dr. Kaufmann, states “So when the plaintiff’s attorney asks, ‘Are you calling my client a fake, fraud, and a liar?’, one effective response is, ‘No, FBS is just one indicator of symptom invalidity associated with the exaggerated reporting of symptoms’.  Upon hearing such testimony, a reasonably prudent juror would likely conclude the plaintiff was faking”²⁶ (emphasis supplied).  Accusing the plaintiff’s attorney of misconstruing the scale by perceiving its use as an attack on the plaintiff’s credibility is confusing at best.  The original name of the scale was the FAKE BAD SCALE.  Does that not imply dishonesty or faking?  How does one determine the boundaries between exaggeration and faking?   To claim that a scale does not mean “faking”, but then assume a reasonably prudent juror, after hearing reference to the scale, would  conclude the plaintiff was faking, is an exercise in cognitive dissonance.
The article is also critical of Dr. Butcher for discussing the harmful effects of a cut score of 20 “that has long ago been identified by the developer of the scale as too low.”²⁷ However, the critique also referenced a book authored by Dr. Larrabee which recommended “an FBS cutting score above 20 or 2l provided optimal classification of the malingering and head injury groups…”²⁸

The critique also states that “numerous board certified clinical neuropsychologist experts report admissions of FBS testimony into evidence, with some testifying that they have never had FBS excluded”  and then cites Upchurch v. Broward Co School Board 2008 and Solomon v. TK Power. ²⁹

A letter from Upchurch’s attorney revealed that the case was not a l5th circuit case as represented, nor was the testimony admitted and considered by the court”.³⁰ After discovery depositions on the FBS, the defense agreed to provide the benefits sought, pay costs and attorney fees, and further agreed not to send the claimant to the doctor who claimed malingering based on the FBS.³¹ The critique then cites Solomon v. TK Power and indicates that objections were withdrawn after evidence and oral arguments were presented.³² The plaintiff’s attorney did, in fact, withdraw her Frye motion because she believed that the jury would be outraged should the defense continue to rely upon the FBS.³³ After the defense expert testified, the defendants offered additional sums to settle the case… and it was.³⁴ These cases are hardly an endorsement of the FBS.

In the response criticizing Butcher, et al for discussing the contents of the actual reviews of the FBS conducted at the request of publisher, the authors say they do not wish to reinforce conduct, i.e. discuss review process of the FBS and these issues are not addressed in the response.  Why?  The University of Minnesota is a publicly funded institution and the review process should be open to the public.

Perhaps the best argument reflecting the weaknesses of this scale can be found in the Critique in which it is stated, “As research has progressed, the FBS score range considered to be consistent with malingering has risen.”³⁵ Does that mean the people in the “malingered” range 5 years ago were incorrectly identified?  If so, what is being done to correct the incorrect accusation?   Considering that the cut scores have continued to go up over time, the problem for scientific reliability only increases with time.  The newly increased scores are similar to DNA testing in criminal cases, which essentially exonerate the defendant.  The only difference being there appears to be no attempt to contact those individuals to whom the wrong cut score was applied, which resulted in a loss of benefits, in order to make them whole.  Now that the cut score is higher, what efforts have been made to reimburse those persons wrongfully denied benefits by use of lower cut scale?

Conclusion

This scale is too controversial and has too many psychometric problems to be valid.  The scale has the potential to consistently measure a construct, (real problems, unknown issues) which is not consistent with its original name, “faking bad.”  It consistently measures something other than its original name implied.  The scale is biased against those with legitimate brain impairment; thus, those least able to defend themselves against such charges of dishonesty are the ones most likely to be victimized by it.  The scale gives points for malingering for endorsing legitimate symptoms of TBI and as such, it should not be considered valid.

Dorothy Sims is a plaintiff attorney in Florida.
Richard Perrillo, Ph.D., is a neuropsychologist practicing in Beverly Hills, and San Francisco, California.
Richard B. Berman is a plaintiff attorney in Florida.

References

1. Pope, K, Butcher J, Seelen, J, The MMPI, MMPI2 and MMPIA in Court, Third edition, 2006APA, at 7
2. 8/24/09, http://www.ninds.nih.gov/disorders/tbi/detail_tbi.htm
3. Paul Lees-Haley et. al, Fake Bad Scale on the MMPI 2 for Personal Injury Claimants, Psychological Report, 1991 68, 203-210  wherein on the first page in the summary the authors refer to the scale “for the detection of malingerers in personal injury claims”,  Butcher, JN, Graham, JR, Williams, CL, Ben-Porath, YS, Development and Use of the MMPI2 Content Scales, Regents of University of Minnesota Press, 1993, Attachment A  (MMPI2 items)
4. Affidavit  4/27/07, Dr. James Neal Butcher Upchurch v. Broward County
5. Pope, KS, Butcher, JN, Seelen, J, The MMPI, MMPI2 and MMPIA in Court, APA, l997,  at l03.
6. 8/l9/09, http://pearsonassess.com/NR/rdonlyres/A25DB8F8-435F-4066-801B-B641978A97…
7. SS Bush, et. Al. ,Symptom Validity Assessment: practice Issues and Medical Necessity, NAN Policy and Planning Committee, Archives of Clinical Neuropsychology, 20 (2005) 4l90426 , 424
8. Email dated l/23/06 from U. Minn. Press, Beverly Kaemmer asking reviewers to have responses back by 2/7/07, only 2 weeks after the request for review is sent.
9. Id.
10. Butcher, JN, Gass, CS Cumella, E, Kelly, Z, Williams, C.L. Potential for Bias in MMPI2 Assessments Using the Fake Bad Scale, Psychol. Inj. and Law, V1, # 3, 191-209, 2008,. Paul Lees-Haley et al., Fake Bad Scale on the MMPI 2 for Personal Injury Claimants, Psychological Report,  68, 203-2l0 , 199l.
11. Id.
12. MMPI2rf, Manual for Administration, Scoring and Interpretation, University of Minnesota Press, 2008, at 29.
13. MMPI-RF, MMPI2 Restructured Form Technical Manual, p.23 University of Minnesota Press, 2008.
14. Id.
15. Minneapolis Star Tribute, 8/2/02, Feud Over Famed Test Erupts at U.
16. http://www1.umn.edu/mmpi/mnreport.php
17. Letter from Dr. Arnie Ables, Phd, Chair, APA Committee on Disability and the Law dated 5/3l/07 with follow up letter dated  8/9/07 to publisher of MMPI2 “These factors led CDIP to suggest an independent evaluation  of the FBS by Buros Institute of Mental measurement…” page 2 of 8/9/07 letter
18. Butcher, JN, Arbisi, P, Atlis, M, McNulty, J, The Construct Validity of the Lees-Haley Fake Bad Scale. Does this scale measure somatic malingering and feigned emotional distress?”  Archives of Clinical  Neuropsychology l9 (2003) 473-485, at 484
19. Vandergracht v. Progressive Express, USAA insurance company and TIG insurance Company  Case 02 04552, Florida, Williams v CSX Transportation, Case No 04-CA-008892,  Stith v. Williams and State Farm Insurer, Case No  2003 0l0945 AG, Limbaugh-Kirker v Dicosta, Case No Ca 000706, 2/l0/09, Transcript Ft. Meyers, Florida, Anderson v E & S International Enterprises, Inc,  Case No RG05 2ll076, Alameda County,7/29/08.
20. Stith v. Williams & State Farm Insurance , case number 2003, CA 0l0945AG, 8/28/08
21. Ben-Porath, Y.S, Greve, KW, Bianchini, KJ, Kaufmann, P.M,, The MMPI-2 Symptom Validity Scale (FBS) Is an Empirically Validated Measure of Overreporting in Personal Injury Litigants and Claimants: Reply to Butcher et a. (2008) Psychol. Inj and Law, 2009 vol 2, #l, 62-85 at  80
22. 9/l6/09  http://en.wikipedia.org/wiki/Malingering
23. 8/22/09  http://emedicine.medscape.com/article/293206-overview, Paul Lees-Haley et. al, Fake Bad Scale on the MMPI 2 for Personal Injury Claimants, Psychological Report, 1991 68, 203-210  wherein on the first page in the summary the authors refer to the scale “for the detection of malingerers in personal injury claims”
24. Paul Lees-Haley et. al, Fake Bad Scale on the MMPI 2 for Personal Injury Claimants, Psychological Report, 1991 68, 203-210  wherein on the first page in the summary the authors refer to the scale “for the detection of malingerers in personal injury claims”
25. 8/20/09  8/l9/09, http://pearsonassess.com/NR/rdonlyres/A25DB8F8-435F-4066-801B-B641978A97DA/0/mmpi2FBS.pdf, 5/9/09, http://www.pearsonassessments.com/news/pr011107.htm
26. Dr, Kaufmann outline to American Bar Association undated entitled “Evidence of Law and SVT Science” presented on 3/l2/09 in New Orleans at ABA sponsored conference at page 5.
27. Ben-Porath, Y.S, Greve, KW, Bianchini, KJ, Kaufmann, P.M,, The MMPI-2 Symptom Validity Scale (FBS) Is an Empirically Validated Measure of Overreporting in Personal Injury Litigants and Claimants: Reply to Butcher et a. (2008) Psychol. Inj and Law, 2009 vol 2, #l, 62-85 at 81
28. Id.
29. Ben-Porath, Y.S, Greve, KW, Bianchini, KJ, Kaufmann, P.M,, The MMPI-2 Symptom Validity Scale (FBS) Is an Empirically Validated Measure of Overreporting in Personal Injury Litigants and Claimants: Reply to Butcher et a. (2008) Psychol. Inj andLlaw, 2009 vol 2, #l, 62-85 at 79
30. Letter from Richard B. Berman, Esq.  dated l/6/09   and order dated 3/319/09 by Judge Katheryn Pecko, Judge of Compensation Claims in  Upchurch V. School Board of Broward County/Optacom approving the joint stipulation between the parties wherein the  fees and costs were paid by the carrier,  the defense  agreed to provide medical and psychiatric care and agreed the claimant did not have to return to the defense medical examiner  who testified about the Fake Bad Scale.
31. Id.
32. Ben-Porath, Y.S, Greve, KW, Bianchini, KJ, Kaufmann, P.M,, The MMPI-2 Symptom Validity Scale (FBS) Is an Empirically Validated Measure of Overreporting in Personal Injury Litigants and Claimants: Reply to Butcher et a. (2008) Psychol. Inj andLlaw, vol 2, #l, 62-85 , Springer Science
33. Letter from Dianne Weaver dated l/6/09 to publisher of journal Psych Injury and the Law.
34. Id.
35. Ben-Porath, Y.S, Greve, KW, Bianchini, KJ, Kaufmann, P.M,, The MMPI-2 Symptom Validity Scale (FBS) Is an Empirically Validated Measure of Overreporting in Personal Injury Litigants and Claimants: Reply to Butcher et a. (2008) Psychol. Inj and Law, vol 2, #l, 62-85 , Springer Science.

A Creative Way Around the Golden Rule Prohibition

From Litigating Neck & Back Injuries by Michael J. Morse

It is almost universally prohibited to ask jurors to put themselves in the place of the injured plaintiff and determine an amount of money necessary to compensate them for the pain and suffering, which the plaintiff has endured. This is widely seen as improper and prejudicial. Annotation, “Instructions in a Personal Injury Action which, in Effect, Tells Jurors that in Assessing Damages They Should Put Themselves in an Injured Person’s Place,” 96 A.L.R.2d 760 (1964).

One creative way around this universal rule is to describe the plaintiff’s circumstances in terms of a job posting. Start by telling the jury that you recently saw an ad in the paper and hold it up. Then, say:

The ad reads as follows: “Seeking person to sit in a motor vehicle at a red light and be rear-ended at a high rate of speed. After experiencing fright, shock and disbelief, take a ride in an ambulance to the local hospital where you will stay for 12 hours. Applicant must then endure 9 months of excruciating pain in the neck and back, followed by treatment consisting of [x, y, z]. Two years after the accident, applicant must continue to suffer pain and not be able to participate in the activities he/she participated in before the accident, including [x, y, z]. Pay is [e.g., $10,000 or $20,000].” I would not take this job, and I do not know anyone else who would either.

By ending this way, you avoid asking the jury what they would do were they in the plaintiff’s position.

Michael J. Morse is an attorney in Michigan. His primary focus is representing persons injured in motor vehicle, truck, motorcycle, bicycle and pedestrian accidents. His law firm, Michael Morse, P.C., specializes in neck, back and brain-injured cases.
Mr. Morse has been an attorney since 1992, after graduating Cum Laude from the University of Detroit School of Law where he is now an adjunct professor. Mr. Morse is on the Executive Board of the Michigan Trial Lawyers Association and is a member of the American Trial Lawyers Association. In 2007, Mr. Morse was appointed by Governor Jennifer Granholm to the Michigan Chiropractic Board. He may be reached through his website, www.michigan-auto-attorney.com.

How to Establish a Demand in Small Cases

From Maximizing Damages in Small Personal Injury Cases by Ellsworth T. Rundlett III

1. The first step is to evaluate your well-documented medical bills. If the injury is one that can be objectively proven such as a broken leg, cartilage damage in a knee, or shoulder injury which required arthroscopic surgery, multiply the total medical bills by a factor of two, three, four, or five depending upon the length of time the injury took to heal, the quality of your medical documentation, and whether or not the particular area of the body was totally symptom-free prior to the injury. The existence of a previous injury to that area of the body would necessarily reduce the multiplication factor. If the injury resolved completely in a period of two months with no residual problems, you would use a low figure such as two or three times the medical bills. If the injury took a substantial period of time to resolve, such as a year or more or required a medical procedure, use a higher figure such as four or five times the medical bills. Take the figure arrived at and use this as your first tangible value.
2. Determine the actual loss of income resulting from the injury. Be certain it is well-documented and cannot be successfully attacked or tested at trial. The best documentation is the simple calculation of several weeks lost time at a certain rate of pay per week. The worst would be an estimate of self-employment income lost as estimated by your client with little supporting documentation such as tax returns, an accountant’s letter, or other similar proof. If the loss is well-documented, reasonable, and consistent with medical reports, multiply the total by two, three, or four depending upon the quality of your documentation and the length of time for recovery. This is the second tangible evaluation figure and should be added to the medical bill figure described in number l above.
3. If there is a permanent impairment assessment or indication of permanency by a reputable physician, a third tangible evaluation figure can be established. Note that I have used the word “reputable” because insurance companies will doubt any permanent impairment assessment or indication of permanency from a chiropractor or physician who is not well-respected by the insurance claim community. An assessment from a chiropractor will have some value, but not as much as a statement from a medical doctor, osteopath, or especially an orthopedic specialist or neurosurgeon. If the permanent impairment assessment is stated in terms of percentage, use a figure of between $1,000 and $2,000 for each percentage point of permanent impairment. If the permanent impairment assessment is greater than 10% then there is a possibility that your claim is no longer a small personal injury claim and may exceed the $50,000 value depending upon the nature of the injury, the age of your client, and the occupation of your client. If there is no permanent impairment assessment, but there is an indication that the injury has some degree of permanency, I recommend using a figure of approximately $500 to $1,000 for each decade of your client’s remaining life expectancy. The permanent impairment or permanency figure will be your third tangible evaluation figure which would be added to the medical bill assessment and lost wage assessment set forth in items l and 2 above.
4. Add the value of the tangible figures of l, 2, and 3 plus another 20% to 50% and ask yourself whether or not the figure arrived at would be an excellent, A + settlement if you could obtain it from the insurance carrier. In addition, ask yourself whether or not you would feel comfortable requesting that figure or one that may be up to double that figure from a jury if the case were to proceed to trial. If you have partners or associates, discuss the case with them and inquire whether or not your figure is a reasonable initial demand. (Our youngest partner runs every personal injury case by the other partners before he makes his initial demand.)
5. The final demand figure for your first letter of demand to the insurance carrier must, in the final analysis, represent the following: 
   A.  The very best that you could do with the very best jury on the very best day assuming the case went as well as it  could.
   B.  A value that would make your client and you more than 100% satisfied if the insurance carrier were to agree to pay the demand.
   C.  Bear some reasonable explanation and justification as an initial demand figure.
   D.  Represent approximately double the bottom line authority on the case.
   E. A figure that would give you significant room to move if suit is commenced and proceeds toward trial.

Ellsworth T. Rundlett III is a personal injury trial lawyer with 36 years of experience. He is the former president of the largest county bar organization in the State of Maine and a former member of the Board of Governors of the Maine State Bar Association. He is a past president of the Maine Trial Lawyers Association and a former state delegate of the Association of Trial Lawyers of America. Mr. Rundlett is a diplomat of the National College of Advocacy and has been certified as a civil trial specialist by the National Board of Trial Advocacy since 1991.

Stressing Opponent’s Weaknesses

From Personal Injury Trial Notebook by Don Woody

Equally as important as addressing your own case’s weaknesses in the case is pouncing on the opponent’s weaknesses early in your opening statement. Plaintiff’s counsel can take full advantage of having the first opportunity to frame the issues on the other side’s weaknesses in the minds of the jurors.

PRACTICE TIP
Do not be afraid to tell the jury what the opponent will argue and why the evidence in the case clearly does not support that argument. This can be accomplished in a manner that does not appear to be argumentative by stating what the other party or its witnesses will testify to or what its evidence will be and then demonstrating that all of the other evidence in the case is contrary to and refutes the opponent’s testimony or evidence.

This technique will help steal the opponent’s thunder and, because of primacy, will permit plaintiff’s counsel to cast the jurors’ first impression of the issue in a favorable light that will detract from the opponent’s framing of the issue and presentation of that evidence in the opening statement.

EXAMPLE
Now the defendant manufacturer will tell you that John Adams was partly at fault for this injury he suffered because he was using the track drill inappropriately with his back to the lime quarry rock highwall when the rock dislodged and landed on him. They claim he failed to carefully look out for falling rocks off the highwall.

Defendant manufacturer publishes in their sales literature how their machines are going to be used, and their engineers say you don’t publish something that’s unsafe, you publish something which is a foreseeable use of your machine. And defendant manufacturer has published a picture of a man with a similar machine. Here is the mast, here are the controls, here is the highwall. The photographer is standing up on top of the highwall looking down just as a photographer would be up on a highwall looking down on John Adams.

Here [demonstrating] is a photographer looking down, and this track drill operator is looking at his controls with his back to the highwall. This is the way defendant manufacturer acknowledges it should be done and is going to be done.
Now, in this trial they are accusing John Adams of being negligent for doing what they show in their pictures they expect to be done.

Donald E. Woody practices in Springfield, Missouri, with Hall, Ansley, Rodgers, and Sweeney, where he represents both plaintiffs and defendants in his trial practice.  Mr. Woody specializes in medical malpractice, personal injury, products liability, and business litigation cases, and has won and settled several million-dollar cases in those areas of expertise.

Blocking Stipulated Negligence in MIST Cases

From Medical Proof of Whiplash by Michael R. Melton & Steven R. Young

Minor impact, soft tissue (“MIST”) injury cases are unique at trial. Several things make this so. First, the defendant will concede “liability.” Second, unlike most cases, the trial is a battle of the experts. Third, the Defense will paint Plaintiff, and Plaintiff’s attorney, as fraudulent and dishonest.

Causation Still in Dispute

Near the time of trial, Defense counsel will tell you, “Defense will not dispute liability.” Don’t be misled. This offer will not simplify trial because the defense is not offering to limit the case to damages. The defense still intends to dispute “causation” and damages. At trial, the defense will dispute how the collision happened and how fast the cars were traveling at the time of the collision. The defense will do so on the premise that this evidence relates to whether the injuries were possible in the collision. This leads to the second unique feature in this kind of trial: the battle of the experts. See §5:03.

Have Defendant Stipulate to Each Act of Negligence

When the defense offers to stipulate to negligence, do not simply agree that Defendant is not disputing negligence. Demand that the defense agree not to dispute each act of negligence. Several acts of negligence could have caused the injuries, e.g., failure to exercise ordinary care, failure to maintain a proper lookout, following too closely or driving too fast for the conditions, a violation of law (negligence per se).

Insist the defense admit each separate act of negligence. The defense will not do so, but will raise the issue again in the pretrial conference with either (1) a motion in limine to force the stipulation, in the form of a motion to preclude evidence on the question of negligence, or (2) an oral request of the judge to waive the question of negligence to prevent Plaintiff from presenting evidence on the question. Resist this with a renewed request that Defendant stipulate to each specific act that was negligent. When the defense objects, explain to the judge that each act of negligence independently establishes causation; each negligent act is a separate cause of injury. If the defense will not stipulate to each act, nothing prevents you from proving additional acts of negligence that proximately caused your client’s injury. (Can someone charged with five bounced checks plead guilty to ONE bounced check and avoid charges on the other four?). See also §1501.3, Stipulation re Negligence.

Practice Pointer:

Put court-mandated stipulation on record.

The court may insist on a stipulation. Be sure to get this on the record or, failing that, when the stipulation is received for the record, recite that the stipulation is made based on the judge’s insistence and over your objection. If the court forces a stipulation that does not contain recitals of the acts of negligence, make a similar objection for the record.

Form – Stipulation re Negligence

The parties, by and through their attorneys stipulate and agree, which shall be binding for all purposes in this case, including findings by the jury, as follows:

Defendants stipulate that Defendant Francie La Rue was negligent when she crashed into the rear of George Hurtin’s car on July 31, 2000 as follows:

A.   Francie La Rue agrees she did not exercise ordinary care on July 31, 2000 when she crashed into the rear of George Hurtin’s car;

B.   Francie La Rue agrees she did not maintain a proper lookout on July 31, 2000 when she crashed into the rear of George Hurtin’s car;

C.   Francie La Rue agrees she was driving too fast for conditions on July 31, 2000 when she crashed into the rear of George Hurtin’s car;

D.   Francie La Rue agrees she violated California law and was cited and ticketed by the police for doing so, on July 31, 2000, after she crashed into the rear of George Hurtin’s car.

E.   Francie La Rue agrees that George Hurtin did nothing that contributed to her crashing into the rear of his car on July 31, 2000.

_____________________________________

Signed Francie La Rue, Defendant

____ _____________________________________

Signed BlackHearted Lowry,
Defendant’s attorney

_____________________________________

Signed Truth Warrior, Plaintiff’s attorney

Steven R. Young is different from other litigators because he takes cases to trial. Since 1983, when he tried his first case, Mr. Young has taken more than one hundred cases to trial, with most of these tried to a jury. His no-nonsense approach to case preparation and motion practice has resulted in numerous multi-million dollar verdicts and settlements in favor of his clients.  Mr. Young practices in Irvine, California.

Michael R. Melton has been immersed in the field of whiplash injuries for more than a decade. He wrote and published his first book, The Guide to Whiplash, in 1995. The following year, he started a newsletter for professionals who work with personal injury cases, the Injury Resources Monthly. In recent years Mr. Melton has written and produced a variety of materials in different media that make it easy to explain injuries to lay people. Mr. Melton is the owner of BodyMind Publications (www.injuryresources.com).

Medical Research Websites

From Exposing Deceptive Defense Doctors by Dorothy Sims

Use this list to research the background of defense doctors and obtain assistance in cross-examining doctors and understanding medical issues.

• www.nlm.nih.gov/
  This is the National Library of Medicine/National Institutes of Health, with a great search site.

• www.guidelines.gov/
  This is an extremely useful website. It has hundreds of protocols on how to perform procedures, and is very good for use in research if you intend to cross-examine a specialist or get involved in a medical malpractice case.

• www.pubmed.com/
  This free website allows you to search extensive medical databases for abstracts of articles by subject or author.

• www.mdconsult.com
  This is a pay website, which frequently provides the entire medical journal article (rather than an abstract, as provided by www.pubmed.com).

• www.mdinabox.com/links.php#medical
  This is a links page from mdinabox, which gives you good links to medical subspecialties and federal research links, as well. [Note: This site was created by the author of this blog post.]

• www.almexperts.com/ExpertWitness/experts_and_consultants/index.html
  This website provides information, including CVs, about experts all over the world. Check out the DME and verify his CV before the deposition.

• www.abms.org/
  This site is the American Board of Medical Specialties. Use it to verify the defense witness’s board certification.

Medical Websites by Subspecialty:

American Board of Medical Specialties: www.abms.org

Anesthesiology: www.asahq.org

Cardiology: www.acc.org; www.asecho.org; www.americanheart.org

Chiropractic: www.amerchiro.org; www.accoweb.org;  www.nysca.com

Emergency Services: www.aaem.org; www.abem.org; www.acep.org

Endocrinology: www.aace.com; www.diabetes.org; www.endo-society.org

Gastroenterology/Liver: www.acg.gi.org; www.gastro.org; www.asge.org; www.sgna.org; www.liverfoundation.org

General Medicine: www.aafp.com; www.abms.org; www.ama-assn.org; www.aamc.org; www.nysafp.org; www.nycms.org

Hematology: www.hematology.org

Iatrogenic Injuries: www.iatrogenic.org

Immunology: www.ashi-hla.org; www.aaaai.org

Infectious Disease: www.cdc.gov/ncidod/
id_links.htm; www.amm.co.uk/html/public.htm

Internal Medicine: www.acponline.org; www.abim.org; www.sgim.org

Obstetrics/Gynecology: www.acog.org; www.abog.org; www.accesspub.com/tempobg/soc/socm.htm

Midwifery: www.acnm.org

Neurology: www.stroke.org; www.aan.com; www.neuroguide.com; www.ninds.nih.gov/disorders/stroke/stroke.htm

Oncology: www.asco.org; www.cancernet.nci.nih.gov; www.oncolink.upenn.edu

Opthamology: www.eyenet.org; www.ascrs.org; www.asoprs.org; www.glaucoma-foundation.org

Optometry: www.aaopt.org, www.aoanet.org

Orthopedics: www.aaos.org, www.sportsmed.org

Pediatrics: www.aap.org

Pharmacy: www.aphanet.org

Physical Medicine: www.aapmr.org

Physical Therapy: www.aaptnet.org; www.apta.org; www.nationalrehab.org

Physiology: www.faseb.org

Plastic Surgery: www.plasticsurgery.org

Podiatry: www.apma.org; www.footandankle.com/podmed/

Preventative Medicine: www.acpm.org

Psychiatry: www.abpn.com; www.psych.org

Pulmonology: www.lungusa.org; www.aarc.org; www.chestnet.org; www.thoracic.org

Radiology: www.asrt.org; www.rsna.org; www.acr.org

Rheumatology: www.rheumatology.org; www.arthritis.org

Client DME Questionnaire

From Exposing Deceptive Doctors by Dorothy Clay Sims

If you cannot record the examination, consider having your client complete the following questionnaire immediately after seeing the defense doctor. Bring a witness to wait in the waiting room to time exactly how long the client is in with the doctor. (It wouldn’t hurt if the witness also happened to be a minister.)

Please mark “yes” or “no.” If there is a blank to complete, please do so. Add any comments or suggestions.

What examination was done? Be specific about all you recall the doctor did on the attached blank paper.

Did the doctor perform the exam or a nurse?

Describe the doctor (to make sure the exam was really done by the doctor and not the nurse)

Did the doctor actually push on your back to check for spasms or rigidity (painful areas), and did he do this over or under your clothing?

Did you take off any of your clothes?

If you took off clothes, what items?

Did you take off your shoes and socks?

Did the doctor shine a light in your eyes?

Did the doctor watch your eyes while you looked in all four directions?

Did the doctor shine the light first in one eye, then the other?

Did the doctor look in your ears?

Did the doctor have you open your mouth?

Did the doctor have you stick out your tongue?

Did the doctor ask you to turn your head to the right and left, back and forward?

Did you move your arms above your head, in front of your body?

Did the doctor test the strength of your grip? With a machine?

Did the doctor have you bend over to touch your toes?

Were you lying down on an examination table at any time?

If yes, did the doctor press on your abdomen?

If yes, did the doctor have you raise your leg off the table?

If yes, did the doctor hold your foot and then turn it first one way, then the other to see how far your hip could rotate?

If yes, did the doctor raise your leg for you until you complained of pain?

Did the doctor tap your elbows with a rubber hammer to test the reflexes?

Did the doctor tap your wrists with a rubber hammer to test the reflexes?

Did the doctor tap your knees with a rubber hammer to test the reflexes?

Did the doctor tap your ankles with a rubber hammer to test the reflexes?

Did the doctor stroke or rub the sole of your foot with a hard instrument?

Did the doctor poke at your arms with a pin or run a sharp-toothed wheeled instrument over your arms?

Did the doctor poke at your legs with a pin or run a sharp-toothed wheeled instrument over your legs?

Did the doctor have you sit on a chair or examining table?

If yes, did the doctor raise your leg up from the floor until you complained of pain?

If yes, did the doctor have you raise your leg up from the floor as far as you could?

If yes, did the doctor hold your foot and then turn it first one way, then the other to see how far your hip could rotate?

Did the doctor feel your back with his hands?

If yes, did he feel it in the middle where the bumps of the spine are located?

If yes, did he feel it on either side of the spine?

Did the doctor measure your thigh with a tape measure?

Did the doctor measure your calf with a tape measure?

Did the doctor measure your upper arm with a tape measure?

Did the doctor measure your lower arm with a tape measure?

Sometimes examination includes measurements of joint movement. Please circle each joint that was measured by the doctor with an instrument. Shoulder, elbow, wrist, hip, knee, ankle.

________________________________________

Time of scheduled appointment:

Time you were first seen by the doctor:

Time actually spent with doctor:

Time spent in which the doctor was actually physically examining you:

Who actually conducted tests?

Time of actual testing:

Description of tests (to the best of your ability):

Name of Physician:

Comments:

Download the form as a word document

Economist Cross-Examination Issues

From Determining Economic Damages by Gerald Martin

It is not possible to predict all the difficult issues your economist may face on cross-examination, but there are six that seem to come up often:

1. Assumptions: Many attorneys will ask about the assumptions made in reaching an opinion of losses. He will ask whether the economist has verified everything possible, including such obvious things as date of birth of the plaintiff. It is extremely rare that an economist will examine the birth certificate of the plaintiff, and it is not necessary that he do so. Nevertheless, the opposing attorney will build up an impressive list of assumptions made and ask whether the appraisal is accurate if any of the assumptions are incorrect. Your economist should never argue over assumptions. Of course, he made many, and should freely tell the jury. The purpose of this type of examination is to make an assumption appear to be nothing more than a guess, thereby weakening the effect of the calculations made. It is not a series of questions that should lead to an argument, and certainly your economist must avoid going on the defensive as it makes him appear to be an advocate. One of the spontaneous responses I have heard an economist give, after being grilled endlessly on assumptions, was to look at the jury and tell them that not once in his life had he seen a baby squirrel, but he assumed they must exist.

2. Wrong field of expertise: Economists should be alert for questions that could be better answered by an expert in another specialty. For example, the economist should never give opinions regarding shortened life expectancy, vocational rehabilitation possibilities, the need for any medical procedure, an opinion as to who was at fault, or a legal opinion regarding collateral sources. If your case has been prepared properly, any of these things will have been testified to by prior experts and the economist should state that he is relying on their professional opinions, not his own.

3. 100% certain: Increasingly, attorneys are using guides written for cross-examination, and one recent guide recommends asking, at the end of the deposition or trial, whether the economist is 100% certain that his estimate of the loss is correct. Of course, he is not and should never say that he is. He should tell the jury that, no, he is not 100% certain about the future, but based on prior testimony and information provided to him, the estimate is the most likely or most probable estimate at that time testifying under oath to tell the truth, and that he is offering them the very best estimate he believes can be made.

4. Unlimited resources: Another closing question being asked on cross-examination goes like this: “Dr., if you were given unlimited resources and funds, is there anything you would do in researching your opinion of the loss that you have not done in this case?” This should be easy, but some economists have tripped up over it. In several thousand cases, I have never had a retaining attorney tell me up front the maximum number of hours I could put in on the job, or the maximum amount of time that I could bill. Consequently, I have always operated under the belief that I have unlimited resources and funds in all cases. Just have your economist tell the jury he had no restrictions placed on him either resources or funds.

5. First year interest: In many evaluations, the total loss will, when invested, generate more in interest earnings in the first year than will be needed to pay the loss in that year. The typical questions here are to have the economist tell the jury what is lost in the first year and how much will be earned in interest in the first year. Sometimes, the attorney will continue by asking: “If the same amount is earned each year and that the amount is taken by the plaintiff, isn’t it true that he will still have the original award at the end of his work life?” Certainly, that is true, and the questions usually stop there. On redirect, just ask your economist what is wrong with that assumption, and he will easily explain that, because earnings increase each year, but interest earnings don’t, eventually there will not be enough earned in interest to pay the loss in future years, and at that time, the award itself, will begin to be depleted, reaching a zero value at the end of work life. (This is also known as the unanswered question. Defense attorney will not ask the economist, but will wait until he has gone and will appear to think of it for the first time in closing argument. He may tell the jury: “Isn’t it too bad the economist is not here to answer that question?” Now this becomes your problem because the economist cannot be recalled. Either head it off by covering on direct, or remind the jury that the economist was present and ready to answer any questions posed on cross-examination).

6. The average person: Many times, the economist will have to rely on studies and government statistics to calculate a loss. For instance, it is common to rely on life expectancy and work life expectancy tables, average household service value studies, personal consumption studies, and other items that pertain to large groups rather than the individual plaintiff. This may be the focus of cross-exam questions, and in most cases, the best answer your economist can give is to say he assumed the plaintiff was neither better nor worse than the average.

Dr. Martin holds a doctorate in Finance from Arizona State University. He is a Professor Emeritus at California State University, Fresno. He began his consulting service in 1974 and has testified in state and federal courts across the coutry. He has consulted on several thousand cases in his career, divided nearly equally between plaintiff and defendant.

How to Establish a Demand in Small Cases

From Maximizing Damages in Small Personal Injury Cases by Ellsworth T. Rundlett III

1. The first step is to evaluate your well-documented medical bills. If the injury is one that can be objectively proven such as a broken leg, cartilage damage in a knee, or shoulder injury which required arthroscopic surgery, multiply the total medical bills by a factor of two, three, four, or five depending upon the length of time the injury took to heal, the quality of your medical documentation, and whether or not the particular area of the body was totally symptom-free prior to the injury. The existence of a previous injury to that area of the body would necessarily reduce the multiplication factor. If the injury resolved completely in a period of two months with no residual problems, you would use a low figure such as two or three times the medical bills. If the injury took a substantial period of time to resolve, such as a year or more or required a medical procedure, use a higher figure such as four or five times the medical bills. Take the figure arrived at and use this as your first tangible value.
2. Determine the actual loss of income resulting from the injury. Be certain it is well-documented and cannot be successfully attacked or tested at trial. The best documentation is the simple calculation of several weeks lost time at a certain rate of pay per week. The worst would be an estimate of self-employment income lost as estimated by your client with little supporting documentation such as tax returns, an accountant’s letter, or other similar proof. If the loss is well-documented, reasonable, and consistent with medical reports, multiply the total by two, three, or four depending upon the quality of your documentation and the length of time for recovery. This is the second tangible evaluation figure and should be added to the medical bill figure described in number l above.
3. If there is a permanent impairment assessment or indication of permanency by a reputable physician, a third tangible evaluation figure can be established. Note that I have used the word “reputable” because insurance companies will doubt any permanent impairment assessment or indication of permanency from a chiropractor or physician who is not well-respected by the insurance claim community. An assessment from a chiropractor will have some value, but not as much as a statement from a medical doctor, osteopath, or especially an orthopedic specialist or neurosurgeon. If the permanent impairment assessment is stated in terms of percentage, use a figure of between $1,000 and $2,000 for each percentage point of permanent impairment. If the permanent impairment assessment is greater than 10% then there is a possibility that your claim is no longer a small personal injury claim and may exceed the $50,000 value depending upon the nature of the injury, the age of your client, and the occupation of your client. If there is no permanent impairment assessment, but there is an indication that the injury has some degree of permanency, I recommend using a figure of approximately $500 to $1,000 for each decade of your client’s remaining life expectancy. The permanent impairment or permanency figure will be your third tangible evaluation figure which would be added to the medical bill assessment and lost wage assessment set forth in items l and 2 above.
4. Add the value of the tangible figures of l, 2, and 3 plus another 20% to 50% and ask yourself whether or not the figure arrived at would be an excellent, A + settlement if you could obtain it from the insurance carrier. In addition, ask yourself whether or not you would feel comfortable requesting that figure or one that may be up to double that figure from a jury if the case were to proceed to trial. If you have partners or associates, discuss the case with them and inquire whether or not your figure is a reasonable initial demand. (Our youngest partner runs every personal injury case by the other partners before he makes his initial demand.)
5. The final demand figure for your first letter of demand to the insurance carrier must, in the final analysis, represent the following:

A)   The very best that you could do with the very best jury on the very best day assuming the case went as well as it could.

B)   A value that would make your client and you more than 100% satisfied if the insurance carrier were to agree
to pay the demand.

C)   Bear some reasonable explanation and justification as an initial demand figure.

D)  Represent approximately double the bottom line authority on the case.

E)  A figure that would give you significant room to move if suit is commenced and proceeds toward trial.

Ellsworth T. Rundlett III is a personal injury trial lawyer with 36 years of experience. He is the former president of the largest county bar organization in the State of Maine and a former member of the Board of Governors of the Maine State Bar Association. He is a past president of the Maine Trial Lawyers Association and a former state delegate of the Association of Trial Lawyers of America. Mr. Rundlett is a diplomat of the National College of Advocacy and has been certified as a civil trial specialist by the National Board of Trial Advocacy since 1991.

Checklist for Researching Defense Doctors

From Exposing Deceptive Doctors by Dorothy Clay Sims

A good background check on the doctor being deposed may take some time and could be costly; it can take 7-15 hours to properly investigate the DME’s background. However, the cost is worth it and you only need to investigate each doctor once.

When the research is completed, Bates stamp it and bind it in volumes limited to 100 pages each. We use a local printer who charges only $1 a volume to bind it. Label each volume in very large font (e.g., 36 point), like this:

Background material
Volume 1 of 51
Dr. John Doe, M.D.

When deposing an uncooperative DME, pull out every volume of research you have on the doctor and place it where the doctor can clearly see it. (Don’t do this at the beginning of the deposition because the doctor may feel threatened and you will lose your opportunity to get concessions.) Why do this? First, you are wordlessly informing the defense attorney that you have the goods on his witness, and you are prepared. Consequently, if he is going to use a doctor with this much baggage, he is going to have to cull through 5,000 or more pages of what may be very damaging material to see if he needs to file a motion in limine. But that’s only if you let him have a copy of the material. Second, this can eliminate confirmatory bias. Confirmatory bias exists when a doctor reaches a conclusion by excluding all evidence contrary to the conclusion he or she wishes to reach. The doctor can’t be so cavalier with his opinions when he sees you have multiple depositions in which he’s testified. He’s going to have to be consistent with his prior testimony.

How do you store this data on your computer? You scan it via OCR so you can simply type in a word in the search function and go right to that testimony in your document, which you can have loaded on your laptop for trial and deposition.

1.  www.almexperts.com/ExpertWitness/experts_and_consultants/index.html

Search for the doctor’s name. This may provide a CV on the doctor.

2.  www.floridamalpractice.com/linksdoctor.htm

This site is for Florida doctors only. Look for similar sites in other states.

• Look up the doctor’s license.
• Copy and paste into a word document.
• Click on Practioner’s Profile, Click on Printer Friendly Version.
• Copy and paste into a Word document.

3.  https://apps.fldfs.com/PLCR/Search/MPLClaim.aspx

• Check for malpractice claims. (This site is only for Florida doctors.)
• Medical Professional Liability (MPL) Reporting Claims.
• Insured (Doctor’s/Physician’s) First Name, Insured (Doctor’s/Physician’s) Last Name.
• Enter first and last name.
• Click on any results and copy and paste the claim into a Word document.

4.  www.ama-assn.org/ama/pub/category/2645.html

This site allows you to look up other state medical licenses.

• Click on the link to the state the doctor is licensed in and find on the state website the online license verification.
• Search by doctor’s name.
• Copy and paste the license(s) into a Word document.

5.  www.nationalregister.org/links_licensingboards.htm

This site allows you to look up psychologist licenses.

• Click on the link to the state the doctor is licensed in and find on the state website the online license verification.
• Search by doctor’s name.
• Copy and paste the license(s) into a Word document.

6.  www.lexis.com

If you use this site:

• Sign on.
• Enter Client.
• Reminder: with doctors in Florida, make sure you search the news publications in Lexis (this is easiest if you do it through the drop down menu).

SmartLinxT-Personal Summary Reports

• Unclick the “Use similar sounding terms for Last Name”
• Search by Last Name, First Name and State (Make sure terms and connectors is checked)
• If you get more than 30 results, you may need to provide additional information, such as middle initial or city
• Review the results to be sure they are the right person. Look for indicators, such as middle initial, correct city, birth date, or a medical license. (You can click on the name to see the full report.)
• Click the checkboxes of the ones you want and then click download. This will pop up a new window. Choose from the drop down menu and choose Text document (TXT). Make sure that only the box that says “Each document starts on a new page” is clicked and no others.
• Make sure the drop down menu is on “Full” and not “Cite.”
• Click Download.
• When it finishes, it will provide you with a link, right click on the link and click “save target as” then save the document wherever you wish to save it.

SmartLinxT-Business Summary Report

• Search by State, Last Name and First Name (Make sure terms and connectors is checked)
• Review the results to make sure they are associated with the right person (the best way is to make sure the person’s name is in the report and they are in the right city or the report contains the person’s middle initial or degree (M.D., Ph.D.))
• Click the checkboxes of the ones you want and then click download. This will pop up a new window. Choose from the drop down menu and choose Text document (TXT). Make sure that only the box that says “Each document starts on a new page” is clicked and no others.
• Make sure the drop down menu is on “Full” and not “Cite.”
• Click Download.
• When it finishes, it will provide you with a link, right click on the link and click “save target as” then save the document wherever you wish to save it.

Public Records-Combined Verdicts, Settlements and Expert Directories-Jury Verdicts and Settlements, Combined

• Search by the person’s name (First Last) (Make sure terms and connectors is checked).
• Review the results to make sure that each reference is to the doctor you are searching for. Look for the specialty and location of the doctor in the verdict to be sure. If the doctor is a party in the verdict, make sure it is in the right state.
• Click the checkboxes of the ones you want and then click download. This will pop up a new window. Choose from the drop down menu Word document (DOC). Make sure the drop down menu is on “Full” and not “Cite.”
• Make sure that “dual column” is not selected. Make sure that only the box that says “Each document starts on a new page” is clicked and no others.
• Click Download.
• When it finishes, it will provide you with a link, right click on the link and click “save target as” then save the document wherever you wish to save it.
• Repeat the search with the middle initial and with any other combination variations of the doctor’s name.

Federal Legal-US-Federal Court Cases, Combined

• Search by the person’s name (First Last) (Make sure terms and connectors is checked)
• Also search for Dr. (Last)
• Review the cases to make sure that each reference is to the doctor you are searching for. Look for the specialty and the location of the doctor in the case to be sure. If the doctor is a party in the case, make sure it is in the right state.
• Click the checkboxes of the ones you want and then click download. This will pop up a new window. Choose from the drop down menu “Word document (DOC).” Make sure the drop down menu is on “Full” and not “Cite.”
• Make sure that “dual column” is not selected. Make sure that only the box that says “Each document starts on a new page” is clicked and no others.
• Click Download.
• When it finishes, it will provide you with a link, right click on the link and click “save target as” then save the document wherever you wish to save it.
• Repeat the search with the middle initial and with any other combination variations of the doctor’s name.
• Also try “Dr ___,” although this may get you more cases then is feasible to review and is not really necessary if you have a good number of cases already. If you do this search, you must review each case to make sure it is the correct doctor and also that it is not a case you already have downloaded.

State Legal-US-Combined States-Cases-By Court-State Court Cases, Combined

• Search by the person’s name (First Last) (Make sure terms and connectors is checked)
• Also search for Dr. (Last)
• Review the cases to make sure that each reference is to the doctor you are searching for. Look for the specialty and the location of the doctor in the case to be sure. If the doctor is a party in the case, make sure it is in the right state.
• Click the checkboxes of the ones you want and then click download. This will pop up a new window. Choose from the drop down menu “Word document (DOC).” Make sure the drop down menu is on “Full” and not “Cite.”
• Make sure that “dual column” is not selected. Make sure that only the box that says “Each document starts on a new page” is clicked and no others.
• Click Download.
• When it finishes, it will provide you with a link, right click on the link and click “save target as” then save the document wherever you wish to save it.
• Repeat the search with the middle initial and with any other combination variations of the doctor’s name.
• Also try “Dr ___,” although this may get you more cases than is feasible to review and is not really necessary if you have a good number of cases already. If you do this search, you must review each case to make sure it is the correct doctor and also that it is not a case you already have downloaded.

Public Records-Find a Person-Criminal History-Criminal History Records

• New Search (at top of screen).
• Search by the person’s name (First Last) (Make sure terms and connectors is checked).
• Review the results to make sure they refer to the right person. Look to see if it is in the right state or if the person has the same middle initial.
• Click the checkboxes of the ones you want and then click download. This will pop up a new window. Choose from the drop down menu Word document (DOC). Make sure the drop down menu is on “Full” and not “Cite.”
• Make sure that “dual column” is not selected. Make sure that only the box that says “Each document starts on a new page” is clicked and no others.
• Click Download.
• When it finishes, it will provide you with a link, right click on the link and click “save target as” then save the document wherever you wish to save it.

Public Records-Find a Business-Business and Corporation Information-Combined Business and Corporation Information

• New Search (at top of screen)
• Search by the person’s name (First Last) (Make sure terms and connectors is checked)
• Review the results to make sure they are associated with the right person (the best way is to make sure the person is in the right city or the report contains the person’s middle initial or degree (M.D., Ph.D.))
• Also look for any businesses that you found when you did the Business Summary Reports earlier.
• Click the checkboxes of the ones you want and then click download. This will pop up a new window. Choose from the drop down menu Word document (DOC). Make sure the drop down menu is on “Full” and not “Cite.”
• Make sure that “dual column” is not selected. Make sure that only the box that says “Each document starts on a new page” is clicked and no others.
• Click Download.
• When it finishes, it will provide you with a link, right click on the link and click “save target as” then save the document wherever you wish to save it.

News-By Country & Region-United States (FOR DOCTORS IN FLORIDA ONLY)

• Click every box (up to 18) next to all the choices and click on Combine Sources.
• Search by the person’s name (First Last) (Make sure terms and connectors is checked)
• Review the results to make sure they are associated with the right person (the best way is to make sure the person is in the right city/county, is called a doctor/physician, the report contains the person’s middle initial or degree (M.D., Ph.D.))
• Click the checkboxes of the ones you want and then click download. This will pop up a new window. Choose from the drop down menu Word document (DOC). Make sure the drop down menu is on “Full” and not “Cite.”
• Make sure that “dual column” is not selected. Make sure that only the box that says “Each document starts on a new page” is clicked and no others.
• Click Download.
• When it finishes, it will provide you with a link, right click on the link and click “save target as” then save the document wherever you wish to save it.
• Repeat with the other 19 sources combined.
• Sign Off.

7.  Check county courthouse website for lawsuits/divorces doctor has been involved in.

To check what county/city the doctor lives and works in, go to www.naco.org/Template.cfm?Sectionfiltered=Data_and_Demographics&Template=/cffiles/counties/city_srch.cfm

You may be able to find the courthouse through the county’s website OR search www.google.com for the county courthouse, e.g.:

• Marion County Clerk of Courts, FL
• Marion County Courthouse, FL

Search for civil and/or criminal records on courthouse website under doctor’s name and/or company/organization name if the website has an internet search.

• Copy and paste any records found and the URL of the courthouse website.
• If there is no internet search, call the courthouse to see if they will do a case search by name.
• If this costs money, check with the attorney first.

Order the complaint and final judgment for any divorce cases and any cases where the doctor/doctor’s company was the defendant. You will most likely have to send a written request.

• Ask for the costs before you send the money.
• Get prior approval for the costs from the attorney.

You may be able to find some of the judgments in the public records search online:

www.publicrecordcenter.com/onlinecourtrecords.htm

• Check out this site to find states and cities the doctor may have lawsuits and licenses in.

8.  www.trialsmith.com

• Sign on with ID and password
• Search by Last name and First name.
• Note the number of depositions available in case attorney wants to purchase them.
• Send similar searches.Send l0 emails to lawyers searching same doctor to find out what they have on the doctor and offer to share what you find.
• Logout

9.  Go to www.pubmed.gov and search for any publications that the doctor has written. Only copy and paste the Abstracts (which are free).

• Type in the doctor’s last name and first initial and middle initial (with no comma, e.g., Smith JJ) in the “Search Pubmed for” box. Click on “Go.”
• Scan the descriptions of the articles and see if they deal with areas that are related with the doctor’s specialty, if you can tell.
• Cross reference the articles you find with the doctor’s CV (if available).
• Click the box next to each article description that you believe has been written by the doctor you are researching. Go to the drop down menu that currently says Summary and change it to Abstract.
• Copy and paste all the article abstracts and put them into your document.
• Insert page breaks between each abstract.

10. Go to Google Scholar, scholar.google.com, and search for any articles written by the doctor.

• Search articles by the doctor’s name or his initials and last name.
• Click on the links and copy and paste the article abstracts by the doctor and the URL in a Word document.

11. Go to www.amazon.com and see if the doctor has written any books.

• Search books on Amazon.com for the doctor’s name.
• Copy and paste any books that you find by the doctor and the URL into your document.

12. Visit doctor’s website. Find information on the doctor’s website and Google the doctor and his practice.