X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Attorney: Donald M. R�, 53 Firm: Los Angeles’ Law Offices of Donald M. R� Case: California v. Lightman, No. BA109226 (Super. Ct., Los Angeles Co.) To gain an acquittal in a criminal trial, says criminal defense attorney Donald M. R�, “you have to give the jury a reasonable reason why the state would have charged an innocent person.” Whatever the legal burden of proof on the prosecution, he says, “in the back of each juror’s mind is the belief that the district attorney would not have charged the defendants if they were not guilty.” As a result, “I always look for something in the record that will show the real reason that this person is being prosecuted,” he says. The prosecutors’ actions are not necessarily nefarious; they “may have misunderstood something; they may have been misled by witnesses.” In his recent defense of the operators of a California workers’ compensation treatment provider accused of cheating insurers out of $30 million or more by submitting inflated or unnecessary medical expenses, however, the defense developed a fairly hard-edged reason. “This was a politically and financially motivated prosecution, generated by the influence of insurance companies in an attempt to put the defendants out of business,” he says. This explanation of why the defendants were being prosecuted became an integral part of winning acquittals for R�’s client and the other defendants — the most recent jury victory for a criminal defense specialist known for rescuing high-profile clients. R� has been involved as a lead defense counsel in many of the best known prosecutions in Southern California during the past two decades. He was co-counsel with Howard Weitzman in the 1984 acquittal of maverick automaker John Z. DeLorean on federal cocaine distribution charges. In 1996, he was part of the team winning acquittals for rapper Snoop Doggie Dogg and his bodyguard, accused of murdering a gang member. COMPENSATION FRAUD In this case, R� represented Michael Lightman, who had been accused, with nine other defendants, of running what prosecutors called in the original indictment “the largest workers’ compensation fraud ever.” Lightman and the other primary defendant, Dr. James Eisenberg, had formed a company called Amerimed Medical Corp. to provide medical services to workers’ compensation claimants. Amerimed operated clinics and employed doctors, chiropractors, psychologists, psychiatrists, and other health care professionals, who evaluated and treated injured workers, notes R�. The company maintained an injury claims center that advertised for injured employees. Lightman also set up a separate company called Accurate Imaging to handle MRIs and CT scans or to find an appropriate provider. The state accused Lightman and the others of a series of crimes, including fraud and conspiracy, alleging that the defendants had manipulated the state’s coding system to inflate prices for diagnostic procedures and treatment, and had paid kickbacks for referrals to Amerimed and its related companies. Before trial, three defendants pled guilty; others received immunity to testify against the remaining defendants. The final defendants at trial were Lightman, Eisenberg, and two attorneys, William Jones and Robert Libbot. Office manager Lynette Overcamp was initially in the trial as well but was dismissed by the judge midway. The complexity of the case was an immediate obstacle. “They were charging a series of offenses that were highly technical.” Mr. R� notes. “We had to learn a whole area of law and business practice to explain this.” The number of charges and potential prosecution witnesses was also enormous. To counter this, says R�, “we bargained with the DA about narrowing the scope of their presentation.” This is a standard practice in defending a complex criminal case, he notes, to get the case to a manageable size. “I also did motions against patients outside the statute of limitations.” This brought down the final number of patients’ records the defense team had to review to a few hundred, rather than thousands. But, R� says, this still left “an enormous body of material that had to be reviewed. We had to decide which records we had to look at.” They focused on insurance company files. One of the primary charges was that the defendants had misled the insurance companies in the billing over transcutaneous electronic nerve stimulation (TENS) treatments. In the bills, says R�, the defendants had used a supply code, instead of a treatment code. The state contended that this was fraud, “that the insurance companies were being misled into believing they had purchased the TENS unit and not the treatment.” “We had to get the insurance company payment records,” R� says, to show that the insurance companies knew they were paying for treatments. “This was misbilling, not overcharging.” His team zeroed in on the TENS bills. “If the insurer was confused on what a bill meant, they’d send the bills out for review,” he says. “We were looking for reports from reviewing companies. We were looking for something inconsistent” with the prosecution’s charges, “or something that should have tipped them off that the bills were inaccurate.” R� and the other defense attorneys viewed the files for days at the insurers’ offices. “If we marked certain pages with yellow tags, they would copy those pages,” R� recalls. “The downside was that this was sent to the DA’s office, so they knew what we were looking for.” To throw the prosecution off the track, he says, “occasionally we sent pages that didn’t mean anything. We didn’t want to give away all our secrets.” CONSPIRACY THEORY In his opening statement, R� introduced his theory of why these men were being prosecuted. “I began by saying that the defendant was not guilty and that this prosecution was arising out of financial motive.” But he connected this financial motive not just to the insurance companies, which were the purported victims of the alleged fraud, but to the district attorney’s office as well. The prosecutor’s office, he charged, had a personal stake in this case because it received funding from its prosecution of workers’ compensation insurance fraud cases. Beyond promoting this conspiracy theory in the opening, R� says, “I go one by one on the various charges, in general terms, but not count by count, or I’d be tripping over myself. I don’t think it’s effective to answer every charge. The jury gets confused.” The key for the defense is cross-examination of the prosecution witnesses, R� says. “I spend weeks preparing cross,” he says. He gets all previous statements by the prospective witnesses, including grand jury testimony. “I make a chart of the important points and what the contradictions are. I list the areas that are important for each,” he says, then lines them up with specific documents and references in statements by other witnesses. “You begin the cross gently,” he says. “Sometimes you can get favorable admissions. You don’t have to be in the position of trying to impeach everybody.” But, R� says, if the witness is hostile, “you close down all those persons’ escape routes so they can’t find some explanation.” This approach was critical in cross-examining the insurance company witnesses. He focused on finite, discrete issues — particularly whether the carriers knew what they were paying for. By beginning gently, he says, he won several favorable admissions. “The majority said they were not misled. Others said, ‘We thought we were paying for a new machine.’ ” He confronted them with the insurance companies’ own records. “ Eventually, they all agreed that the payment was for treatment. They had to admit they were wrong or look foolish. “The insurance company witnesses turned into our witnesses,” says R�. “They not only helped us win, but helped attack the credibility of the prosecution’s case.” The Los Angeles jury deliberated for two weeks; then, on Aug. 11, 1999, it acquitted Lightman on 17 counts and hung on the remainder. The last three counts, involving allegations of filing false tax returns, were dismissed shortly afterward, leaving no counts pending. All the other defendants were also acquitted. Tips: � Let jurors know the reasons behind the prosecution. � Bargain with prosecutors to limit the case. � Don’t try to impeach every opposing witness.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.