A note of caution and professionalism is appropriate on the listing of treating physicians in your designation, following the language suggested above. We have seen designations which simply list every treating health-care provider as a potential witness. This method is frowned upon by judges and in a case of any magnitude, it is likely to be a lengthy list. To avoid mistake in small business consult with a small business lawyer.

While this approach is technically unobjectionable, it can send a message to your adversary(ies) that you are either unprepared or are playing games and attempting to obfuscate. If you have, as we repeatedly suggest in this article, done your homework and your legwork, you should be able to list the treater(s) you actually intend to call at trial. You can, as needed, include one or two (or some reasonable number more) additional treating physicians so as not to be caught short by surprises during expert discovery or at trial. Defense counsel will get the message and convey it to the decision makers, i.e., that counsel for the plaintiff is well- prepared on the issue of damages. 

Percipient employment witnesses vs. Vocational Rehab

This is another area where you need to make a reasoned and reasonable cost versus benefit analysis. In the major injury case with a long-term or lifetime loss of earnings or earning capacity claim, the need for a vocational rehabilitation expert will be obvious, and, therefore, an easy call in your case planning and budgeting. In the smaller case, you may be able to compellingly prove your client’s entitlement to past and future loss of earnings through the combination of your medical expert(s) and the client’s manag- er(s), supervisor(s), and co-workers.

Once again, the key to this approach is good old fashioned legwork. You (and this means you the trial lawyer, not an assistant) should meet personally with these individuals, as recommended (and possibly introduced) by your client. A line-up of a handful of supervisory employees or co-workers willing to testify to your client’s past performance and the requirements of the job (which the medical testimony will make clear the client cannot perform), can be very persuasive, especially since these witnesses are outsiders to the litigation. There also can be something magical about “real people” witnesses explaining the realities of the damages case to the “real people'' on the jury. This approach will not always be available, but it is worth your consideration and presents another opportunity to be cost-efficient in the work-up and trial of your case.

Finally, beware of the downside to vocational rehabilitation testimony. The qualified vocational rehabilitation expert witnesses share one background experience - they have all devoted at least part of their career to putting injured and partially' disabled workers back into the workforce. Therefore, if defense counsel is experienced, he will be able to elicit many helpful admissions from the voc rehab expert, both as to generalities (“There is no substitute for the desire of the injured worker to get back to work, is there?”) and as to case specifics (admitting the laundry list of jobs for which your injured client is physically qualified, despite the claimed disabilities).

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