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Rules of the Road: A Plaintiff Lawyers' Guide to Proving Liability.

Rules of the Road: A Plaintiff Lawyers' Guide to Proving Liability

Rick Friedman Patrick Malone Trial Guides 302 pp., $95

Complexity, confusion, and ambiguity are the primary obstacles to a successful plaintiff civil trial practice, according to Rick Friedman and Patrick Malone in their book Rules of the Road. The book is a coherent effort to help trial lawyers overcome these obstacles. The authors' specific suggestions and insights focus principally on medical malpractice and bad-faith insurance claims; other advice is very general.

The authors recognize that legal standards like "reasonable basis" and "unreasonably dangerous product" are inherently ambiguous. When jurors are faced with such uncertainty, they tend to rule in favor of the defense. Friedman and Malone suggest eliminating ambiguity by, for example, drafting simple, clear jury instructions at the beginning of the case; emphasizing the language of statutes, administrative regulations, and training manuals; and appealing to jurors' common sense as well as established moral imperatives.

Expert witnesses often are too esoteric and academic, confusing the issues rather than clarifying them, the authors say. Lawyers need to consult with witnesses early and frequently to ensure that their testimony is unambiguous. The authors also argue that demonstrative evidence, such as PowerPoint presentations, is indispensable in a society accustomed to mass media.

To help plaintiff lawyers defeat Daubert motions, Rules of the Road provides an entire chapter of useful suggestions and insights, including how to find the most appropriate methodology for the expert's field and how to locate literature in support of the expert's theory. The authors note that many otherwise excellent experts lack forensic experience and that the prudent trial lawyer must make sure the expert is familiar with Daubert requirements.

The authors provide excellent--although sometimes elementary--advice on requests for production, interrogatories, and requests for admissions. They also provide general tips on deposing witnesses and include excerpts of deposition transcripts that demonstrate how to handle the polarizing or combative witness, the corporate spokesperson who knows little or nothing about the subject, and defense counsel's speaking objections. Friedman and Malone also include tips on drafting the notice for deposition directed to a corporate spokesperson.

To overcome complexity, confusion, and ambiguity, the authors argue that judges must be spoon-fed. The prudent trial lawyer can't assume that the judge knows anything about, remembers anything about, or cares about the case, or that the judge--rather than a law clerk--is the first-line decision-maker.

At trial or a hearing on a motion for summary judgment, the authors recommend giving the judge simple summary paragraphs of one or two sentences that explain the most basic facts and legal principles to be applied. Law-review-quality briefing is not necessary and is wasted on most trial judges, they say.

Friedman and Malone integrate their "rules of the road" theme into opening statement, direct examination of expert witnesses, cross-examination of intellectually dishonest witnesses, and closing argument. They provide an extremely useful appendix of 123 pages that contains very detailed suggestions, trial testimony excerpts, and sample pleadings to illustrate how the rules of the road can overcome complexity, confusion, and ambiguity.

Rules of the Road provides considerable assistance for the novice trial lawyer and is recommended even for the experienced practitioner litigating claims involving insurance bad faith and medical malpractice.

JEFFREY NEEDLE is a trial lawyer in Seattle, Washington.
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Author:Needle, Jeffrey
Article Type:Book review
Date:Nov 1, 2006
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