This will be the third blog in our series of discussions on the recent Massachusetts Appeals Court decision of Fyffe v. MBTA. We continue our analysis of the lessons that can be learned from this case, one certain to be cited by defense lawyers. While the majority of cases do not go to trial, the way that a trial would unfold and the anticipated evidence that would be presented at such a trial influences to a very large extent the amount of recovery that might be sought from a pre-trial settlement.
During a trial, a lawyer can only present evidence and question witnesses when he or she has a good faith basis to believe the evidence or the question asked. In Fyffe, the Appeals Court found an absence of good faith for many of the statements and questions presented by the plaintiff’s attorney.
Second, a lawyer must confine himself or herself to questions and statements concerning what he/she thinks the evidence will show. Thus, wild off-the-cuff statements will not be admissible. The Appeals Court in Fyffe found that the plaintiff’s attorney had made several of these inappropriate statements and questions during his presentation of evidence to the jury.
Third, the Appeals Court in Fyffe noted that a lawyer must weigh his or her duty as a zealous advocate of the client with his or her duty as an officer of the court, someone charged with helping to obtain the truth. This is an ethical obligation owed to the court and to the legal profession as a whole.
Lastly, the Appeals Court in Fyffe found fault with the method used by the plaintiff’s attorney in determining the plaintiff’s loss of earning capacity. If a client is unable to work as a result of an accident, the attorney should first determine what that client’s baseline of income was at the time of the accident. Documentation should come in the form of tax returns and pay stubs in the years prior to the accident. That information allows the factfinder to multiply the time lost by the plaintiff’s gross income. As to a future loss of income, with the proper medical testimony it can be established how long the client will continue to be out of work. The inquiry then continues by evidence showing whether the client can return to his/her former employment or, for example, may need a sedentary job, which might pay less than the previous job. There is an arithmetical method used for reducing the future loss of earning capacity to present value. Throughout the Fyffe opinion you can see the courts dismay that this methodical approach was not followed.
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