Tues 1045 AnatomyofaLawsuit Roloff Kinser · 2019. 10. 30. · 3djh $qdwrp\ ri d /dzvxlw.luwh 0...

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Anatomy of a Lawsuit

Kirte M. [email protected]

Scott [email protected]

Measuring Healthcare Outcomes: Better Care @ Lower Costs

Scott RoloffIntegerHealth Technologies

Mark BartaCity of Fort Worth


Scott RoloffIntegerHealth Technologies

Kirte M. KinserLaw Office of Kirte M. Kinser

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Scott Roloff• President, IntegerHealth Technologies

• Healthcare technology company• Quantifies healthcare outcomes• Health plans & workers’ comp• Better Care @ Lower Costs

• CFO or General Counsel• Healthcare, software & telecom companies• Hired Kirte for litigation

• Corporate Partner, Akin Gump• Met Kirte at Gibson Dunn & Crutcher• SMU Law School (Valedictorian)• LinkedIn: https://www.linkedin.com/in/scottroloff/

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Kirte M. Kinser• Litigator / Trial Lawyer

• Commercial disputes• Constitutional law• Employment issues

• Mediator / Resolution Solutions• Former Partner

• Locke, Liddell & Sapp (now Locke Lord)• Brown McCarroll (now Husch Blackwell)

• Former Chairman, Board of Governors, Texas Health Presbyterian Hospital‒Rockwall

• Met Scott at Gibson Dunn & Crutcher• SMU Law School (Hatton W. Sumner’s Scholar)• LinkedIn: https://www.linkedin.com/in/kirtekinser/

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The Law

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Basics

• Civil Law vs. Criminal Law• Origins of Civil Law

• English common law (federal and 49 states)• Napoleonic code (Louisiana)• Blend (Puerto Rico–Spanish)

• Civil Law• Torts–Civil wrongs

• Negligence (carelessness)• Intentional torts (purposeful)• Strict liability (fault irrelevant)

• Contracts• Statutory

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Sovereign Immunity‒King’s X

• At common law, citizens could not sue the government without its permission–Immunity of the Sovereign

• Limited exceptions:• Governmental functions (imposed by law)• Proprietary functions (discretionary)

• Texas Tort Claims Act‒Expands permission to sue the government• Personal injuries• Premises liability

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Sovereign Immunity‒Contracts

• Must ask the Texas legislature for permission to sue the State for breach of contract

• Special ADR (Alternative Dispute Resolution) procedures apply to some contracts

• Local Government Code waives immunity for municipalities and other local governments in most circumstances

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The Rules Are Your Tools

• The rules are essentially the same for every case

• How you use them depends upon:• Your risk profile• Nature of the case• Your role in the case• Your budget• Your goal(s)

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What’s Your Risk Profile?

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The Beginning

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Someone Complains

• You or your adversary• Personal injury• Property damage• Employment issue• Constitutional violation• Contract

• How you act or react may resolve the issue or set you on a long path forward• Conciliatory• Neutral• Hard-line

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Explore Early Resolution

• Try to resolve the dispute before it explodes into a lawsuit

• Always Listen‒Always• Ask questions, do not lecture• Contain the dispute

• Who from your side should be involved?• Are there internal resolution procedures?• What’s the likelihood of multiple or repeat

complaints• Get your lawyer involved (at least behind the

scenes)

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Someone Goes to Court Anyway

• Hire your lawyer‒Not your friend (Scott was lucky‒Kirte was his friend and a great lawyer)• Conflicts of interest• Special expertise

• And remember they’re not “your” lawyer• Who’s the client?• Lawyer loyalty & confidentiality• Attorney-client privilege

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Pleadings

• To begin the lawsuit• Petition in state court• Complaint in federal court

• Answer• State‒General denial or special exceptions• Federal‒Motion to dismiss or answer each

paragraph• Answer due

• State‒Monday following 20 days after service• Federal‒21 days after service

• Counterclaims, cross-claims & third-party actions

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The Middle ‒Hurry Up & Wait

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Legal Budget

• Have one! And be realistic

• But realize that you’re one person in a two-person dance• You control what you do• But not what the other side does

• You will have to respond to them• And they may try to drive up your legal fees

• How much do you want to spend to lose?

• How much do you want to spend to win?

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Discovery

• No “trial by ambush”• You have to show them your’s• And they have to show you their’s• In state court, discovery is limited by the

amount in controversy• More than $50,000• $50,000 or less• Special cases

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Types of Discovery

• Requests for Disclosure• Legal theory and factual basis of the case• Calculation of damages• Witnesses, medical records, insurance, etc.

• Interrogatories‒Written questions answered under oath

• Requests for Production or Inspection ‒Documents and tangible things

• Requests for Admissions• If admitted, you don’t need to prove it at trial• If denied and it’s proved at trial, may have to pay the

other side’s legal fees incurred to prove it

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Depositions

• Now you want to settle because…• Your tough guy CEO becomes a

Nervous Nelly!• Cross-examination by the other side’s

lawyer under oath• In a conference room• Transcribed by court reporter• Videotaped

• Cases are not won, but are often lost, in depositions

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Win, Lose or Settle Before the Trial

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Summary Judgment

• Motion filed with the judge before the trial

• Must show that there are no disputed issues of material fact to prove at the trial

• And those undisputed facts entitle you to win as a matter of law

• A high standard (but there are reasons to file a Motion for Summary Judgment even if it isn’t successful)

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Offer of Settlement

• Defendant must declare that it is making an offer to settle the case under the “Rule” (Texas Rule 167, the federal rules are different)

• Offer cannot be brought up at trial as evidence• If rejected, the offeree may have to pay the

offeror’s litigation costs from the time of the offer forward• Offeree is claimant‒Judgment less than 80% of the

offer• Offeree is defendant‒Judgment more than 120% of

the offer

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Settlement Talks

• Know the landscape• Your risks, probabilities and budget (as they really are

and as your adversary perceives them)• Their risks, probabilities and budget (as your adversary

perceives them and as they really are)• Is your adversary emotionally invested?

• Are you?• Don’t be

• Calculate your BATNA, and try to calculate their’s (Best Alternative to a Negotiated Agreement)

• The answer is always “No,” unless you ask the question

• Settlements can be confidential, verdicts at trial cannot

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Arbitration

• Private trial• Contract can require arbitration• Parties can agree to it

• Arbitrator is often a retired judge or lawyer with experience in the relevant area of law • Arbitration doesn’t have to follow court rules, everything

can come into evidence• Decision not appealable, except for arbitrator misconduct

• Theoretically arbitration is quicker and cheaper than a trial, but it isn’t

• Proceedings are confidential, but the decision must be affirmed by a court, which is a public record

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Mediation

• Private settlement talks with an experienced “helper”

• Mediators are skilled at orchestrating compromises• The mediator doesn’t decide the case• Kirte doubles as a professional mediator

• State judges in heavily populated counties order most civil cases to mediation

• Confidential‒What you say or offer in the mediation can’t be used against you at trial

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The Trial

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Jury v. Bench Trial

• Jury trial• Jury decides the facts• Judge decides the law• Either side can request a jury trial

• Bench trial• Judge decides the facts and the law• Shorter and judge likely to let more evidence be

heard (and rule whether it was admissible later)• Juries

• Criminal Law‒12, requires unanimous verdict• Civil Law‒12 in District Court, requires 10 of 12

(6 in other courts, requires 5 of 6)

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Picking Your Verdict…Jury

• The lawyers don’t pick the jury, they pick who won’t be on the jury and the jury is what’s left

• Jury questionnaires• Voir dire‒Lawyers (and the judge) question

the prospective jurors• Strike prospective juror for cause• Preemptory challenges (6/3/3 per party)

• Strike prospective juror for any reason or no reason

• Except an illegal reason

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Putting on Your Case

• Tell a story by asking questions• There are no “Perry Mason”

moments‒but there are “moments”• All relevant evidence is admissible,

unless it’s not• Persuade the jury that you are more likely

right, than not

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Attacking Their Case

• Persuade the jury that they are wrong• Implausible• Impossible• Unreliable

• Impeachment (no, not that impeachment)• Show a witness to be a liar or unreliable• Compare their testimony against their

deposition• Attack their character

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Oh my God‒You have to testify!

• Not “real life” ‒ There are rules!• Your lawyer will prepare you• Direct Examination

• Your lawyer asks you questions• But not leading questions (i.e. yes or no questions that

“lead” you to the desired answer)• Cross Examination

• The other lawyer asks you questions• And they may be leading questions• Keep your answers short• Only answer the question asked, nothing more• Beware impeachment (see above)

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The Jury’s Out: Black Box

• What’s going on in there?• Jury picks its foreman• Jury discusses the case‒and there’s always someone who

wants to talk about something that they shouldn’t• Jury votes or answers questions

• Verdict• Criminal case‒General verdict: Guilty or Not Guilty• Civil case‒Special verdict: Jury answers series of

questions from which judge decides who wins (although it’s usually obvious)

• Beware the post-verdict lawyer interview• The lawyer really doesn’t want to know what you think• But is looking for jury misconduct

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To Appeal orNot to Appeal?

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Reasons to Appeal

• You lost• You won, but the other side appeals• To gain negotiating leverage

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Reasons Not to Appeal

• You won• You lost, but

• There was no reversible error during the trial• You don’t want to spend the money (or you

don’t have it)• More lawyers’ fees, versus• Chance of winning on appeal or getting a new trial

• There’s a chance that you could get an even worse ruling on appeal

• You settle the case after the verdict

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A Word on Workers’ Comp

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Workers’ Comp

• If an employer is “in” the workers’ comp system (buys insurance or self-insures)• Employee gets hurt on the job• Employee receives statutory benefits and

can’t sue the employer for negligence, etc.• If an employer “opts out” of workers’ comp

(non-subscriber)• Employee isn’t entitled to statutory benefits• But can sue the employer• And the employer loses some defenses

(contributory negligence, assumption of the risk and co-worker negligence)

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Lawyers & Workers’ Comp

• If you’re “in” the workers’ comp system any lawyer’s fees must be approved by the Division of Workers’ Compensation• Lawyer limited to $200 per hour (maxed out

at 25% of the award or settlement)• Limited by the benefits achieved by the

lawyer• Lawyer’s fee deducted from what’s owed the

employee• Too low for most lawyers

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Contact

Scott RoloffPresident @ [email protected](817) 849-9402

IntegerHealth Technologies9001 Airport FreewaySuite 700Fort Worth, Texas 76180

https://www.integerhealth.com/

Kirte M. KinserLaw Office of Kirte M. [email protected](214) 498-8548

Law Office of Kirte M. Kinser11907 Salisbury DriveFrisco, Texas 75035

www.linkedin.com/in/kirtekinser/

© Integer Health Technologies, LLC

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