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Calling the doctor

One of the more favored pastimes of the 8th District seems to be Allstate Smackdown.  The insurance company has served as a punching bag for the court on numerous occasions:  at least three times this year, the court has held that the company's routinely miserly pretrial offers merited an award of prejudgment interest.  (I mentioned one here.)

Last week, the bete noire of the plaintiff's bar got another comeuppance in Hutsell v. Allstate, a UMI claim which Allstate appealed because a jury had the temerity to award $9,000 to the plaintiff.  The company's major contention was that the trial court erred by permitting plaintiff's counsel to point out in summation that Allstate could have required the plaintiff to submit to an independent medical examination, but didn't.  The court wasn't buying, and affirmed the judgment.

There were several interesting things about the decision.  First was Allstate's argument, which was based upon the "uncalled witness" rule.  Never heard of it?  Neither had I.  Turns out it's a rule of evidence which states that if a party has the sole power to produce a witness and doesn't, it can be inferred that the witness would give testimony unfavorable to that party.  I'm not sure how it applied to this case, and if I were a more industrious sort I might task myself the to-do of schlepping over to the courthouse and reading the briefs to see what argument Allstate advanced.  It apparently wasn't a good one, being based solely on a Federal 5th Circuit decision which, as the concurrence points out, rejected the rule.  (I did read the 5th Circuit case, and rule apparently stopped being good law about 30 years ago.)

The other interesting thing about the opinion is that it never gets around to answering the question of whether the plaintiff's argument was permissible.  Instead, the court held that the latitude afforded counsel in closing argument was within the discretion of the trial court, and that a case shouldn't be reversed on that basis unless the argument was "reprehensible and heinous."

A couple of points.  First, "heinous" (dictionary definition:  "grossly wicked, abominable, shockingly evil") is setting the bar pretty low.  There have been numerous cases reversed for prosecutorial misconduct in closing argument that certainly couldn't have been classified in that fashion.  It's not a perfect match; the prosecutor is not viewed the same way as a civil lawyer (or a criminal defense attorney, for that matter), and there are some due process concerns in a criminal case that aren't present in a civil one.  Still, it seems a bit much to imply that counsel can get away in summation with anything short of performing a human sacrifice.

The second point concerns a problem I have with the "abuse of discretion" standard.  That standard exists, it seems to me, to cover the innumerable judgment calls a judge  has to make in the course of a trial; for example, how far does he let an attorney go in exploring bias on cross-examination?  Essentially, it covers situations where reasonable people could differ on what should be done, depending on the circumstances, and you don't want to have the court of appeals substitute its opinion on that for the trial court's.

But too often, appellate courts use the abuse of discretion standard when it's really not a judgment call, and I think this was one of them.  Either it's improper to make the argument that plaintiff did, or it's not; the legitimacy of the argument isn't dependent on circumstances.  Hutsell doesn't decide that question; another trial judge could sustain an objection to that argument, and citing Hutsell to him wouldn't do you any good.  If the court felt that the argument was proper, it should have said so, and if it didn't but wanted to reach the same result, it could have sought refuge in that other decision-avoidance sanctuary, harmless error.  But it should have answered the question.

And my two cents is that the answer should've been yes.  The invariable defense argument in these cases is that the plaintiff wasn't hurt as badly as he claims.  In that light, it doesn't seem unfair for the plaintiff's lawyer to point out that the defense had the right to have their own doctor examine the patient to buttress that claim.  And let's face it:  a strategem in these cases, especially by Allstate, is to force plaintiffs to trial in small-value cases, knowing that the costs of trying the case -- spending $1500 or more for the doctor's deposition -- will often induce a settlement.  Essentially forcing the defense to shell out money for its own doctor, or face the prospect of a jury wondering why it didn't, would even the playing field at least a bit.

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