Rules of the Road, written by Rick Friedman and Patrick Malone, is a must-read for a plaintiff legal professional. It serves as a step-by-step information and guidelines framework to assist construct a case in opposition to a defendant with the best chance of success. As cited beforehand in our Merlin Law Blog: “At its most basic level, the Rules of the Road is a technique used to educate first the trial lawyer, and then the judge and the jury, about the basic principles of the case that require the dispute to be resolved based on obligations the defendant has violated and for which it should be held accountable.” This e-book is especially useful in formulating guidelines to construction clear arguments by the plaintiff’s legal professional, which makes it simpler for a choose and jury to know.
Specifically, chapter 5 of the Rules of the Road explores the excellence between rules and guidelines. Although the phrases are sometimes used interchangeably, this chapter of the e-book explains how totally different they are surely and the way vital it’s to know how they operate, particularly as a part of a plaintiff’s case.
Principles are usually not guidelines. Rules needs to be derived from rules. Principles are statements about what “can” or “could” occur within the occasion of an motion or omission by a liable defendant. Rules are statements that straight state what a defendant “should” or “should not” do.
As quoted by the writer, “Principles can be important starting points for questioning witnesses and formulating rules.” Principles assist break down the elemental assumptions a few sure situation, which can be an important and foundational factor of 1’s case. Principles assist a plaintiff’s legal professional stroll by way of these points by displaying what “could” or “could not” be completed however don’t straight or clearly require or prohibit motion. Principles alone are usually not sufficient. The writer states, “The problem with principles is that they can float in the atmosphere of a case without stinging the defendant directly.” Whereas “Rules are squarely aimed at the defendant and leave no ambiguity about what the defendant is required to do (or refrain from doing).”
In each case, there’s a primary assertion of precept to observe, and though different rules could also be derived from that principal precept, if you happen to can’t make that elementary assertion of precept, you seemingly haven’t any case. The writer reveals this by utilizing the next fill-in-the-blank instance for a precept that underlies many private harm instances: “ is dangerous unless basic safety rules are followed.”
This is an instance of a precept that acts as a place to begin for an legal professional’s fascinated with the Rules of the Road of their case. If the fill-in-the-blank isn’t a harmful exercise the place the defendant can be held liable, the case will in the end fail.
The important steps of formulating rules to create guidelines are sometimes skipped by attorneys. This elementary process will help a jury higher perceive the case by beginning with a easy precept after which utilizing the Rules of the Road step-by-step course of to create a extra case-specific rule.
The writer demonstrates this course of by beginning with a precept of knowledgeable consent relating to medical care:
“Doctors are trained and take an oath to always put the patient’s interest ahead of their own.”
Then, the writer applies the precept in making a normal rule:
“When informing the patient about alternative ways to proceed, the doctor should always put the patient’s interest first.”
The writer then makes use of fashionable literature to assist show the final precept cited beforehand:
“The more experience a surgeon has in performing a particular procedure, the better the chance of a good outcome.”
The writer reveals that at this level, it’s the good time so as to add the information particular to the plaintiff’s case:
“The defendant surgeon had little experience with this procedure, and other surgeons were available who had significantly more experience.”
Finally, the writer finishes with the case-specific rule to deliver the development to its climax:
“A surgeon should tell a patient of choices he has that might lead to better outcomes”
The previous is an easy but usually overstepped course of by which one walks the jury down a path of causal connection between rules and guidelines straight tied to the information of the case.
Once you may have a working set of rules and guidelines, the writer advises you to first attempt these guidelines on the defendant, the defendant’s knowledgeable witnesses, and even the defendant’s staff (if such people are pertinent). “You will want the defendant to agree with your rules or redefine them in a way the defendant can agree to.” The better part about this strategy is that you would be able to refine your rules and guidelines as you attempt them, making a greater total course of prepared for trial if the highway goes that far.
This course of and methodology of utilizing rules to formulate guidelines is particularly vital for a policyholder’s legal professional. While insurance coverage declare litigation is multifaceted, one tactic the protection makes an attempt to do throughout litigation is to complicate the problems of the case by counting on complexity, confusion, and ambiguity inside the coverage to efficiently defend in opposition to a declare. A policyholder’s legal professional should do their finest to simplify the problems and guidelines, break them down into smaller items for a jury, and current the case in a easy, easy-to-understand format. A policyholder’s legal professional should stay vigilant of the protection legal professional’s techniques, and the Rules of the Road strategy not solely permits for the very best likelihood to defeat these techniques but in addition permits a policyholder’s legal professional to remain the course on the trail to a profitable decision or verdict.