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Most cases are settled. There are not enough hearing rooms, court reporters, or judges to try more than a small number of litigated cases. Additionally, defendants often want a closed file. If the case goes to trial, unless there is a “take nothing” (meaning no award for injured worker), there is almost always “open medical,” a costly proposition for the insurer. Usually by the time of trial, the worker is fed up with the workers' compensation system and wants a lump sum so he or she can go their own way.

To avoid the risks and hazards of litigation, the parties seek to equal the risk and reach a compromise. Yet an attorney cannot know for sure at case opening if or when it will settle. Accordingly, it is prudent to prepare from Day One as though the case will eventually be tried.

That means that all issues must be identified, along with the burden of proof and what evidence will be required. That evidence must be substantial and admissible, preferably in a document, since what will be said in live testimony is not entirely predictable.

During discovery, the parties use depositions and sometimes declarations to get evidence reduced to paper (now to computer documents filed in EAMS). The most important evidence in most cases is medical. Making sure that the i's are dotted and the t's are crossed is what separates the quality litigator from the sloppy one. There is no way to “wing it” in the current proceduralistic system, where form has been elevated over substance.

Below are some articles with litigation tips. Here are the editor's:

1. Right from the start, keep all data and documents organized. Use software to streamline the process of identifying and storing relevant materials. Do not rely on yellow pads and Post-its which can get lost, misfiled, or misinterpreted.

2. Use checklists as a matter of course. An issues checklist can be high-tech with a program like CaseMap, or low tech with the Pre-trial Conference Statement form, keeping it updated as the case progresses. A good settlement checklist to keep track of ratings, Labor Code §5811 costs, self-procured medical treatment, including all unpaid mileage, will prevent items from being overlooked.

3. Use analyzers to simplify and document the process: the issues & evidence analyzer and settlement analyzer can be downloaded from the A-Z Index. Use the admissible and substantial evidence checklists early enough in the course of the case so you can fix defective reports as they come in, by seeking clarification through a supplemental report or a deposition, or a report from the Primary Treating Physician. Know the burden of proof and have proof in admissible form.

4. Anticipate legal issues and store copies of research in the client's file as you come across it. It is so frustrating to be preparing a trial brief and looking for that case you know you saw a year ago that was right on point. Use a folder tree to keep this all organized.

5. Prepare for the Mandatory Settlement Conference as though it were the trial. What you do not know or have in hand by that date will not be of any use at trial.

6. If the case does not settle at the MSC, it may settle on the day of trial. But it may not, so have a trial brief ready. Know your judges: some like explanatory briefs or charts, others do not. This editor has submitted one page documents labeled “SUPPORTING EVIDENCE ON DISPUTED ISSUES” which may contain charts or tables. They are brief and clear and save the WCJ time. If defendant objects that the document is not on pleading paper, a good response is, “It is a brief in that it is brief, and there is no Board requirement that it be on numbered paper with the usual boilerplate.”

7. Read the WCAB's policy manual. Especially comply with rules on exhibits: see P&P Section 1.40, et seq.

8. Be on time, well-prepared, and courteous to all in the hearing room. Know and follow the rules. If an issue is not in dispute, do not annoy the judge by asking questions about it. In fact, try to get as many stipulations on the record at the outset of the trial, even if you were not able to reach agreement at the MSC. Make sure your client knows what is expected and comes to trial groomed, in clean clothes, with a respectful demeanor.

See, too, Evidence, Discovery

Label Item Links Comments
Labor Code      
Regulations/Rules Parties must appear

Failure to appear

Failure to appear of a party served with notice of trial

Minutes of Hearing and Summary of Evidence

Waiver of Summary of Evidence

Listing of regs with links

8 CCR §10240

8 CCR §10241

8 CCR §10562

8 CCR §10566

8 CCR §10578


Practice Tips See: Litigation Tips by WCJ Colleen S. Casey

Check the latest version of Labor Code §5703 for admissible evidence (should be done before filing for MSC)
Casey on Top Tips for Trial

LC §5703
Good cites (but always  re-reseach) 
Articles Litigation tips (pp. 15-30): handout from DWC 20th annual educational conference 2/13

Top 10 Litigation Tips: handout from DWC 21st annual educational conference 2/14

EAMS: Three Tips for Trial – Submission of Evidence by Colleen Casey

How Do You Litigate? by David Langham, Deputy Chief Judge of Compensation Claims for the Florida Office of Judges of Compensation Claims and Division of Administrative Hearings

Litigation tips 2013


Top Litigation Tips 2014

Three Tips for Trial – Submission of Evidence

How Do You Litigate?


See pp. 15-30



Excellent points about trying a case without “carpet bombing”

Magazine Articles The ABCs of Admissibility: What You Need to Know and How to Do It Post SB 863 by Marjory Harris, Esq. ABCs of Admissibility

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