(Valeriy – Fotolia)

Let’s face it: Relationships between plaintiff and defendant lawyers who practice personal injury law are not especially warm and cuddly. This is not because of the personalities of the attorneys, but because their goals and strategies are diametrically opposite. Expecting plaintiff and defense lawyers to work and play together well is as realistic as expecting offensive linemen and defensive tackles in football to do so. These lawyers will not meet together, hold hands, and sing, “Kumbaya.”

Plaintiffs’ lawyers typically seek to resolve cases for the largest amount of money, whereas defense lawyers want to resolve cases with plaintiffs receiving the least amount of money or, better yet, no money. Plaintiffs’ lawyers are paid based upon percentage of the recovery in the lawsuit, whereas defense lawyers are paid on an hourly basis.

To hear plaintiffs’ lawyers, defense attorneys seek only to drag out cases, cause delays, and encourage unnecessary court appearances, all designed to produce endless and unnecessary billing in order to be paid a fee. This is an “analysis” that dates back to the last millennium, before carriers had metrics which rewarded speed and efficiency, and it is a viewpoint which makes no allowance for alternative fee arrangements.

According to defense attorneys, plaintiffs’ attorneys are paid a ridiculous fee, based upon the one-third recovery of the underlying lawsuit, in which plaintiffs typically allege permanent injuries, and an inability to work ever again, and refer their clients to “mills” which recommend surgery of every grade and order, an approach which assumes the worst of plaintiffs and their lawyers, based more on tabloids and movies than reality and true recognition that some plaintiffs have serious injuries.

Nevertheless, the relationship between plaintiff and defense lawyers is essentially symbiotic, for if there are no cases by plaintiffs, defense lawyers would sit in their offices with nothing to do. However, because these two groups of lawyers have opposite interests, the relationship between the two groups, although sometimes cordial, has not been one which gives rise to great trust.

So matters stood until this past October when an article in the New York Law Journal inflamed the situation. Two distinguished leaders of the plaintiffs bar wrote an article1 outlining the benefit of taping the examination by defendants’ doctors conducting independent medical examinations (IMEs) of plaintiffs. An IME is a staple of personal injury litigation, affording the defense an opportunity to have the plaintiff examined by a doctor chosen by the defense. This examination is critical to the defense because, at the time of trial, counsel for plaintiff may call as witnesses all of the treating physicians who examined plaintiff and gave medical attention to the plaintiff for the injuries sustained in the accident.

Counsel for plaintiff can also call other expert witnesses, selected by attorneys for plaintiff, who, although they did not treat plaintiff, examined the plaintiff after the accident for the purpose of litigation. As it is, the “contest” between physicians is tilted toward the plaintiffs because, in most instances, those doctors who treated plaintiff are not “hired guns,” but are rather health care providers who treated plaintiff because of the injuries, and saw plaintiff on numerous occasions over months, often years. On the defense side, the doctor who examines plaintiff will have been chosen specifically for the purpose of litigation and, in the absence of special circumstances, will have examined plaintiff just once.

The NYLJ article, published in a column on trial advocacy, discussed a plaintiff’s attorney who attended an IME and videotaped the examination by the defendant’s doctor, without the knowledge of defense counsel. At the time of trial, when the IME doctor testified on the stand regarding the length of the examination and what he did, counsel for plaintiff then produced the videotape to impeach the doctor.

Defense counsel objected, stating that the video had not been produced in discovery. However, since the doctor who did the IME was not himself a party to the lawsuit, there was no requirement by the plaintiffs to disclose its existence. Further, counsel for plaintiff successfully argued that they had no reason to believe the doctor would lie, therefore, no reason to believe that the video would have to be used. The long and the short is that the court allowed the video into evidence and, since the doctor allegedly committed perjury in his trial testimony, stated he would refer the matter to the District Attorney.

The upshot of the article was that surreptitiously videotaping IMEs “evened the score” in light of defense tactics of conducting surveillance of plaintiff without disclosing it to plaintiffs. The plaintiffs’ bar graciously accepted this new tactic and strategy in litigation.

The response by the defense was immediate and critical. A distinguished leader of the defense bar argued that the law did not permit plaintiff’s counsel to secretly videotape IMEs.2 The plaintiffs’ bar disagreed, arguing there are no specific statutes barring surreptitiously videotaping IMEs and that bar associations’ opinions failed “to provide clear guideposts for attorneys.”3

Although plaintiffs and defense attorneys can point to various and sometimes contradictory bar association opinions4 and analogous situations in case law, there is no rule directly on point, by statute or case authority, which directly deals with and addresses this hot-button issue. The purpose of this article is not to discuss which ethic opinions support or disapprove of secret recordings conducted by attorneys. Rather, the question addressed is the impact of secret recordings by attorneys on the professional relationship between these competing groups of attorneys, as well as the perception and opinion of the public as to this new tactic.

Approaches for Defense

One question was how the videotaping of the doctor could have happened without the defense counsel being made aware of it. In almost all instances, defense counsel do not appear at IMEs. However, either an attorney or paralegal from plaintiff’s counsel typically accompanies their client to the IMEs. There are several reasons for doing so. One is to provide security, guidance, and comfort to plaintiff, who is their client, when going to the office of a defense expert.

A second fundamental reason is to make certain that the examining physician does not go outside the bounds of a proper IME, for example, asking questions to the plaintiff as to how the accident occurred and in obtaining a fuller than permitted medical history. In these circumstances, the representative from plaintiff’s counsel may instruct the plaintiff not to answer such questions. Defense counsel, upon later learning the refusal by plaintiff to answer such questions, can consider whether to file a motion for a further IME, with the cost of that second examination to be borne by plaintiff, if they believe that the direction/conduct by plaintiff’s counsel at the IME so warrants.

One point on secretly recording IMEs, in the case discussed in the New York Law Journal column, was that no one from defense counsel was present at the IME. That was as expected since usually the defense does not attend IMEs. However, since the IME was recorded clandestinely, it may well have been that a defense attorney or paralegal would not have detected the recording, even had they attended the examination. Certainly, the examining doctor was unaware of the secret video recording.

From the defense standpoint, one possible remedy is for defense counsel, perhaps through the presence of a paralegal, to attend IMEs. However, carriers are usually unwilling to pay for that expense and there is no guarantee that the recording device on the person of plaintiff’s counsel who attends the IME can be detected. Some defense counsel have suggested that IMEs be conducted in a “safe” room which should be “swept for bugs” before the IME is commenced. Turning lawyers into spies cannot be the correct solution. Arming lawyers with recording devices to secretly record conversation sounds more like Don King on “trickeration” than Wigmore on Evidence.

A better approach is for defense counsel to serve requests for audio, video, and transcripts of any recordings made by IMEs, on plaintiff’s counsel following any IME where there is reason to believe that the examination had been recorded. Although this will not prevent plaintiff’s counsel from presenting the recording at the time of trial, it will enable defense counsel to have that recording precluded at trial if it was not turned over, so that the need for “damage control” can be assessed. A failure by plaintiff’s counsel to produce the recording and transcripts in response to such a discovery request will lay the foundation for defense counsel to move to preclude the transcripts in recording at the time of trial.

Another possible solution for defense lawyers is for the doctor who is conducting the IME to ask all persons present in the room whether they have any recording devices with them and, if so, whether they intend to use them. If the answer is yes, the doctor should advise the defense attorney for instructions on whether to proceed with the examination. If the response is in the negative, plaintiff attorneys may think twice before introducing any recordings at the time of trial.

In the absence of controlling authority prohibiting the recording of IMEs, turnabout is fair play. Therefore, when plaintiff’s expert is permitted to examine a particular product, attend a site inspection, or otherwise have material available to the expert, defense counsel present can take a page from this new book by plaintiffs and record that examination by plaintiff’s expert. Where multiple experts are examining a product or attending a site inspection at the same time, one can foresee several lawyers recording the same inspection for their respective clients. Under these circumstances, any light banter which may take place during such interchanges will not occur, both because all parties are now on a war footing, armed with the best technology available to record their adversaries and allow for a full and complete audio recording when one occurs.

Worsening Relations

Whatever perceived advantage is gained by clandestine and secret tape recordings, any fair gain for both sides will be lost in the removal of the last vestiges of collegiality between plaintiffs and defense lawyers. Instead of shaking hands, lawyers will now be trying to pat down their counterparts, to see if they are wearing wires or packing high-tech cameras and listening devices. The net result is secretly taping adverse parties’ experts will inhibit, rather than enhance, negotiations and fair dealings at every level of litigation. To the extent this increases costs and drives up the expense of litigation, plaintiffs, who fired the first shot, may cause cases to be delayed and become more expensive to litigate which is just what they claim defense attorneys secretly wish. That irony is not lost on the plaintiffs’ bar.

As a result, the tension between plaintiffs and defense lawyers has increased, with some defense lawyers sarcastically asking whether they should body-search plaintiff’s attorneys to see whether they are wired and wearing recording devices. The civility between the plaintiffs and defense bar, never on strong footing and usually fragile, will suffer.

A sober re-examination of the practice, and where this slippery slope will lead, is necessary to prevent this anticipated unappetizing present and future. Secretly recording experts may appeal to the inner James Bond of attorneys and may produce excellent war stories but does little to enhance the reputation of attorneys for the public. A cynic might say that law firms should now specifically recruit attorneys for their skill in legal espionage.

In sum, it does not take a Cardozo to realize that lawyers secretly recording the experts of their adversaries only supports the general public perception that attorneys are one step above (or below) used car salesmen and politicians when it comes to trustworthiness. Put differently, we are facing the very real prospect of increased dismal professional relations between these two groups of lawyers, caused by the “ingenious” idea of recording IMEs and playing “gotcha” at trial.

Robert D. Lang is a member of D’Amato & Lynch, where he is the head of the casualty defense department. He can be reached at RDLang@damato-lynch.com.

Endnotes:

1. Rubinowitz, Torgan “Turning the Table: Cross-Examining IME Doctor Using Video of Exam“, NYLJ, Oct. 28, 2013.

2. Spitz, “Law Does Not Support Videotaping IMEs“, NYLJ, Nov. 20, 2013.

3. “Turning The Table,” supra.

4. Compare ABA Comm. on Ethics and Professional Responsibility, Formal Op. 337 (1974); ABA Comm. on Ethics and Professional Responsibility, Formal Op., 01-422 (2001); The Association of the Bar of the City of New York, Formal Op. 1980-95; The Association of the Bar of the City of New York, Formal Op. 2003-02 (2003).