March 22nd, 2015

What If

IMG_0497Constantine Stanislavski refers to “The Magic of If” in his classic book “An Actor Prepares. Here Stanislavski instructs acting students to put themself into the emotion of their part by imagining what it is like “if” they (are in the same situation their part places them in). Thus, if an actor is playing the part of a former soldier who has had his leg amputated Stanislavski teaches to imagine what it would be like to live life with a missing a leg. This allows a natural emotional spontaneity to emerge as the actor places himself into the action aspect of the part with his leg missing.

Recently, I came across an excellent article in the King County Bar Association Bar Bulletin: Daniel Dugan, The Turning Point (March 2015) at 14-15, where Duggan a Trial Consultant discusses his concept he terms “The Turning Point.” Duggan teaches “The Turning Point” is a story telling technique using “counterfactual thinking.” “Counterfactual thinking is a technique where you ask a person to describe the opposite of the situation they are in now.” Id. at 15.

A counterfactual question “elicits rich responses revealing motivation, emotion and a glimpse at a person’s view of fate or destiny.” Id. Duggan goes on to reason that counterfactual reasoning by jurors allows them to see our case from our client’s perspective.

To illustrate Duggan suggests we invite the jury to imagine how our client’s life would be if her injury had not occurred. “Well to understand this ladies and gentlemen you will hear from Katie’s  [lay witness] who will tell you Katie’s life would  be… .”  This allows for two story lines-one life as a result of being injured, and the second one with a life cruising along without injury. “The gap between these two story lines will now appear huge and graphic.” Id.

And the jury goes from the typical mindset of does Katie deserve X amount of money to I get it X amount of money will get Katie’s life back on track. The jury’s verdict becomes the “tool that jurors use to make one life out of the two paths that lay before…[Katie] at the time of [her injury.]” Id. Although her injury forced Katie down her life changing path, the jurors can get Katie back on track because “they understand what it will take to do that.” Id.

Combining Stanislavski’s “if” with Duggan’s  “counterfactual thinking” allows for our jurors to have a unique perspective and gives them the tool of the gap to fill in the difference between the two lives.

 

    March 18th, 2015

    Jury Thoughts

    JuryDuty42_sgl_PRTv1Jury Selection.  Lawyers refer to jury selection as voir dire which is a Latin term for speak the truth. The problem with the term voir dire is most jurors likely have no idea what the lawyer is talking about when the term voir dire is used. To jurors what is happening is “jury selection.” When the lawyer says “voir dire” jurors hear “lawyer speak language”  from a person acting like a lawyer. This separates the speaker from the jurors who do not talk in “lawyer speak.”

    Being a Lawyer. At Gerry Spence’s Trial Lawyers College we immediately learn “we have a problem.” The problem is we are lawyers, and in our jury trials it is generally the case that our jurors are not lawyers. Our jury is a “tribe,” and the tribe is looking for a leader. The leader is potentially one of the competing lawyers. And the leader is “the voice of the tribe.” The voice of the tribe will likely be a voice similar  to the other tribal members.When we address the tribe in “lawyerese,” speaking like a lawyer, we speak in a foreign voice with a foreign presence. So our first job is to speak like a “real person”and conduct ourself  like a “real person.”

    Being Real. As we learn in The Velveteen Rabbit:

    When you are Real you don’t mind being hurt,.. . It dosen’t happen all at once,… you become. It takes a long time. That’s why it doesn’t happen to [lawyers] who break easily, or who have sharp edges, or have to be carefully kept. Generally by the time you are Real [appearance is secondary]. But [fancy appearance] doesn’t matter, because once you are Real you can’t be ugly, except to people who don’t understand.

    Margery Williams, The Velveteen Rabbit.

    When we are real and speak in the tribe’s language we can’t be ugly to the tribe because the tribe understands.

     

     

      November 20th, 2014

      The Villain/Outlier Defendant

       

      In early posts we introduced the concept of Personal Injury as Tragedy. The elements of personal injury as tragedy are: Hero (an honest plaintiff), Adversity (the injury), Attempting to Overcome Adversity (necessary medical treatment), and Inability to Overcome (permanent injuries). This formula emphasizes the injured plaintiff.

      Although the formula is essential for the jury to relate to our injured plaintiff it fails to recognize in today’s legal climate the jury is conditioned by insurance propaganda to mistrust the injured plaintiff and her lawyer. Often the fact we have an honest legitimately injured plaintiff is not enough. In todays legal climate we must recognize the jury may not care about our plaintiff.

      So what do jurors care about? The answer is themselves. In other words jurors consciously and subconsciously want to know “What’s in it for Me.” This means jurors respond when we demonstrate both the elements of tragedy and a reason to compensate plaintiff that benefits jurors. Here the introduction of a villain completes the equation that leads to a willingness to act through a decent verdict.

      By villain we me an outlier defendant. Outlier defendants in a car collision case include DUI drivers, drivers texting going into the crash, and high speed drivers. Drivers doing something going into the collision that has no redeeming quality such that jurors do not see themselves engaging in defendant’s conduct which is seen as unsafe and stupid. (The DUI defendant is made known to the jury in an admitted liability case when plaintiff has anxiety, ptsd, or a psychological reaction based on defendant’s outlier conduct).

      In a medical malpractice case against a hospital we need an outlier hospital that engages in conduct other hospitals would not do because of patient safety considerations. The same is true when defendant is a medical doctor. The jury must see the doctor as one whose conduct is dangerous to plaintiff and to other potential patients.

      Outlier corporate defendants must be guilty of conduct that violates rules other like kind corporations would not and do not violate. It is also important for the outlier defendant to show no remorse and even better when the lawyer is stupid enough to try to justify or deny the conduct.

      This villain/outlier defendant concept has some likeness to the “reptile” concept as taught by David Ball and Don Keenan.  We get what Ball and Keenan teach and respect them. But we think the “reptile” is too simplistic as it fails to address the emotional part of our thought process which is where lasting memories and beliefs come from.

      The point is jurors need more than an injured plaintiff whenever the injured plaintiff appears to look OK. This is because most jurors do not care about our injured plaintiff. When jurors recognize a combination of outlier defendant conduct giving rise to hurting our plaintiff they see this as a problem that they should address. This is because the conduct is outside of what they would do and they could be harmed by this type of conduct. It is their civic duty to do something about it and this benefits them.

       

       

       

        October 30th, 2014

        Facts v. Feeling

        “Then where Should I start?”

        Start what, for Christ’s sake?”

        “Researching the history of the area. Of Derry Township.”

        ‘”Oh. Well. Start with the Fricke and the Michaud. They’re supposed to be the best.”

        “And after I read those-”

        Read them? Christ, no! Throw em in the wastebasket! That’s your first step. Then read Buddinger. Branson Buddinger was a damned sloppy researcher…but when it came to Derry his heart was in the right place. He got most of the facts wrong but he got them wrong with feeling.”

        Stephen King, It (1986).

        Recently at a Trial Lawyers College weekend seminar we dealt with closing argument. In working on closing it became clear that the facts are secondary to the jury (and to us as a member of the jury tribe). What matters is feeling. Until we feel the case the facts are stale. Stale as in how a typical lawyer talks to the jury. When we talk like a lawyer we stress the facts in a sterile way.We relate to the jury like a lawyer machine. And the jurors not being lawyers turn off and go their own way. If it’s toward our side we are lucky. If it is toward the defense we bring this result on yourself by ignoring what matters, and what matters is feeling.

        Now how do we relate to the jury with feeling? Well we begin by discovering the story of our client. We do this by getting emotionally in touch with what are client has gone through and feel how what they have gone through feels to them.

        Once we accomplish this and accomplishing this takes immersion into our client’s life we arrive at the emotional level of the case. This allows us to feel with our client. When we feel with our client we can with emotional honesty convey this feeling to the jury. When we do this in our natural way without trying to sell the jury we give our case a chance.

        The feeling of our client which we mirror flows into the courtroom. The jury relates to this feeling because it is honest and true to life. The facts become subservient to the feeling of the case. Our client has this feeling, we have this feeling and this feeling is given to the jury. When the jury accepts this feeling as its own the facts become secondary to the common feeling of client, us and jury.

         

         

          May 23rd, 2014

          Clarence Darrow on “The Jury”

           

          Every knowing lawyer seeks a jury of the same sort of people as their client; people who will be able to imagine themselves in the same situation and realize what verdict the client wants.

          Choosing jurors is always a delicate task. The more a lawyer knows of life, human nature, psychology, and the reactions of the human emotions, the better equipped for the subtle selection of the so-called “twelve people, good and true.” In this undertaking, everything pertaining to the prospective juror needs to be questioned and weighed: this means all matters that combine to make the person; all of these qualities and experiences have left their effect on ideas, beliefs and fancies that inhabit the juror’s mind. Understanding of all this cannot be obtained too bluntly. It requires finesse, subtlety and guesswork.

          A skillful lawyer does not hunt for learning or intelligence in the box; [the skillful trial lawyer] knows that all beings act from emotions and instincts, and that reason is not a motive factor. … The nature of the person is the element that determines the juror’s bias for or against our client. [The juror’s]… intellect can always furnish… good reasons for following their instincts and emotions. Many [seemingly] irrelevant issues… are not so silly as they seem.  There is no sure rule by which one can gauge any person.

          It is not the law alone or the facts that determine the results. Always the element of luck and chance looms large. A jury of twelve is watching not only the evidence but the attitude of each lawyer, and the parties involved, in all their moves. Every step is fraught with doubt, if not mystery.

          Often a casual remark may determine a vital situation. In all questions people are frequently influenced by some statement which, spoken at the eventful time, determines fate. In fact, all that occurs in life is an endless sequence of events resulting from the wildest chance.

          Clarence Darrow, How to Pick A Jury (Esquire Magazine 1936)(edited/redacted by PAT). 

           

           

           

           

           

           

            May 4th, 2014

            The Personal Injury Associate-MIST Trial-Closing

            John Henry suggests reading David Ball on Damages for closing argument considerations. Ball tells us closing is a time to enlist favorable jurors. This means closing is the time to give jurors on our side one line arguments for us and against defense. I use a combination of Ball, John Henry and my gut feeling.

            Connect the Dots. Although Ball teaches do not rehash what the jurors have seen and heard during the trial, I begin by summarizing the evidence. In this way I put the pieces of the puzzle together for the jurors to make sure they get it. John Henry convinces me this makes sense because the other side will give their rehash version, so a brief connecting the dots shows our story is demonstrated through the evidence.

            Jury Instructions. Next I cover the jury instructions. This means we discuss the instructions in a plain English common sense way. We show how the instructions guide us to the decision in our case.

            Ball Method. I then use Ball’s method  word for word: “In a little while you will go into the jury room and you will have two jobs. One of your jobs is to answer the questions the judge has given you. Your other job is to explain to jurors why you feel the way you do about each question.”

            “If someone says it is wrong to sue, tell them we sued because defendant rear ended Judy and this caused Judy injuries.”

            “Tell them we are forced to come to court because defendant says Judy cannot have significant injuries because the bumpers do not show damage.”

            “Remind them this case is about Judy Brown’s body not her car bumper.”

            “If someone says defense doctor testified Judy was only injured for six to eight weeks, ask them how does this make sense when Judy’s treating doctor ordered physical therapy, referred Judy for surgery, and this treatment took over one year.”

            If someone says Judy had preexisting neck and back problems, tell them her preexisting conditions make Judy more likely to be injured.” Remind them that the preexisting problems did not prevent Judy from doing her hobbies and physical activities before the collision.”

            The Ask. John Henry and I consider trying Judy’s case on general damages alone as opposed to including the medical specials with the general damages. I decide to go the old fashioned way and  include the specials. The  specials are $35,000 and my generals are over $130,000.  (When specials are far less are than generals the low specials are an anchor that may bring down generals damages- thus the theory of trying the case only on general damages).

            I decide to use the itemize the  damages approach. Thus, my proposed damage instruction (which the court uses) includes the specials. We create a power point using our damage instruction  and setting forth an amount next to each element of damage: For past medical expenses___, for past disability___,  for past loss of enjoyment,___, for past pain and suffering___. Next we show the time frame for future loss using the life expectancy instruction. As with the past elements, we itemize each damage element for the future. The end result is a total amount similar to the amount we said we are requesting in opening.

            Rebuttal. There are schools of thought on rebuttal. Some maintain be brief on initial close and back load the guts of the close for the final say in rebuttal. We decide to front load the close as above and use a short statement for rebuttal. I prepare several possible short rebuttals and go with my gut when the time comes so my rebuttal is brief and fits the closing as it has evolved.

              April 19th, 2014

              The Personal Injury Associate-MIST Trial-Cross Examination

              Direct. My direct medical examination is of treating physician referred by our office. He is an MD with emphasis in sports medicine  and treatment of traumatic injuries. I use a combination of Luvera’s outline and my insight.

              Cross-Defense Medical Expert. In cross exam of defense medical expert we initially, discuss bias using Luvera outline. Next we go to my Frontiers of Trauma theme. “Agree there are three phases of trauma: person’s preexisting condition going into trauma; trauma; and, treatment of traumatic injuries with continuing conditions possible.”

              Phase One- Going into Trauma. “Agree woman more likely than man to be injured in rear end collision.” “Agree more likely to be injured in rear end collision if do not expect impact.” “Agree more likely to be injured if elderly woman.” “Agree more likely to be injured if preexisting degenerative disc disease.”

              Phase Two- Trauma. On phase two, the trauma of collision, we confirm our female plaintiff: Does not expect collision; Is an elderly woman; Who has pre-existing degenerative disc disease. Agree “plaintiff fully cooperated with Defense Medical exam;”  “plaintiff gave maximum effort;” “plaintiff  is a candid decent person.”

              Phase Three- Treatment/Residuals. Next we have defense expert  cover initial subjective and objective presentations of plaintiff in early medical records. “Agree treatment ordered is necessary to address injuries received in collision.” “Agree plaintiff followed treatment regimen set by her physician.” “Agree plaintiff has reached maximum medical improvement as of last visits with her MD.” “Agree any lasting medical problems [caused by collision] now must be considered permanent since plaintiff has reached maximum medical improvement.”

              Defense Medical Examination. We then cover the defense medical exam findings that are positive confirmations of injury related to condition caused by trauma. Objective findings are discussed.

              Plastic v. Present Cross. Although I prepared “Chapter Format” questions for cross examination, I took John Henry’s advice to stay in the moment without being wedded to my prepared plastic format. I allowed myself to live in the moment during my cross examination. I followed the advice of Allan Watts:

              There are … two ways of understanding an experience. The first is to compare it with the memories of other experiences [prior deposition testimony], and so to name it and define it. This is to interpret it in accordance with … the past. The second is to be aware of it as it is, as when, in the intensity of …[the trial] we forget past and future, [and] let the present be all … .”

              Trying a case in the present “is neither careless drifting on the one hand nor fearful clinging to the past and the known on the other. It consists in being completely sensitive to each moment, in regarding it as utterly new and unique, in having the mind open and wholly receptive.” Alan Watts, The Wisdom Of Insecurity, (1951).

              This allowed me to have a conversation with the medical expert in the moment which both jury and expert related to and allowed me to go beyond my preconceived  plastic questions in a case positive way.

               

               

                April 12th, 2014

                The Personal Injury Associate-MIST Trial-Direct Examination

                John Henry teaches before we bring a case we must “Discover the Story” of our client and how she is impacted from the trauma. Only after doing this can we internalize our client’s situation as if we are in her skin. Direct examination  flows naturally as we and our lay witness or client have a conversation with the jury.

                Before the examination I prepare an outline and cover it with my witness. When the testimony begins we talk together with the jury. I only use the outline to make sure I have covered the points we need to discuss. For my outline I use Paul Luvera’s Blog-Plaintiff Lawyer Trial Tips. Paul has outlines and input for all phases of trial  and direct examination is no exception. Below is my outline for direct of lay witness and direct of client.

                Direct of Lay Witness (Client’s Daughter). Name, address. “Why did I ask you to testify.” “Tell the jury your educational background.” “Tell the jury about you family.” “Discuss you employment background.” “Describe [mother’s involvement] as you are growing up.” “Discuss frequency of contact with your mother.” “What types of things do you and your mother do together.” “Discuss your mother’s physical ability before collision of… .” “Discuss any physical limitations your mother had before collision of… .” “When did you learn of collision.” “Discuss your observations of differences in your mother following collision.” “What areas of your mother’s body have you observed are different since collision.” “What activity changes have you observed in your mother since collision.” “How does your mother deal with [inability to do work/activity she did before collision].” “Tell the jury what type of women your mother is as far as [being a complainer], [what is important in life], [overcoming adversity.”]

                Direct of Client. Here is the link to Paul Luvera’s  Direct Exam of Own Client which I used in my MIST case.  On direct of client it is important to get client back in time to recount key events. Here we draw on our intimate bound with our client so she can discuss facts in the first person present tense if this comes natural (and it should if we have spent the time necessary to get into our client’s skin). We  get to the level where client can show the jury what occurred either on the witness stand or in the well if this makes sense in the case. We tell our client’s story with our client and know instinctively when to end on powerful testimony.

                  April 11th, 2014

                  The Personal Injury Associate-MIST Trial-Opening Statement

                  John Henry explained to me in a MIST Trial it is essential to be brief, efficient and to the point. Although this is true in all jury trials it is especially true in a MIST case where the jury comes into the case believing they are faced with a lot to do about nothing. And this is exactly what the defense wants the jury to believe.

                  David Ball Opening. I follow David Ball’s opening statement formula, with modifications to fit my style. Here is my outline with a brief summary of what I said:

                  Rule. When we do not pay attention to the car ahead and we rear end the driver ahead we are responsible for the harm.

                  Story. Now let me tell you the story of what happened in our case. [Now I begin the story with defendant. With nouns and verbs in a straight forward dispassionate way I cover defendant’s actions into the collision. The logical conclusion which I let the jury make is defendant’s actions violate a rule and this violation is responsible for the harm.

                  Who Are We Suing and Why. Here I tell the jury we are suing defendant because [she violated the rule and does not agree to accept responsibility for her actions]. I explain why defendant denies liability and/or payment of fair damages.

                  But Before We Came to Court. Here I cover how we determined  that each of defendant’s positions on liability and/or damage is wrong, and who says it is wrong. At this point the jury has heard the facts of the violations. The jury has heard we only came to court after we ensured defendant’s positions are wrong. And, we are left with no choice but to come to court.

                  Causation and Damages. “In this case defense will stress bumpers, and Judy Brown’s pre-existing condition. We will concentrate on Judy Brown’s body not her car bumper.We will demonstrate Judy Brown’s preexisting condition combined with defendant’s action caused Judy Brown’s injuries.”

                  My Job You Job. Here I discuss how my job is to prove the injuries to help the jury do their job. “At the end of the trial the judge will give you instructions on how to figure how much money it will take to make up for the harm caused by defendant. In closing argument we will show you how to calculate the fair value of losses and harm to Judy Brown. We will not show you losses and harm to get sympathy. This case is not about sympathy. This case is about justice, and in a personal injury case justice takes the form of money compensation.”

                  The Three Phases of Trauma. “To prove our case we will discuss what EMT’s refer to as the three phases of trauma: 1) The person’s condition going into the trauma; 2) The Trauma; and, 3) Treatment for injuries and continuing injuries resulting from trauma.” [I then cover the three phases in the context of our case. I spend most of this time discussing the injuries, treatment for injuries, and how despite treatment certain injuries continue. Then I discuss how Judy Brown is impacted in her life because of the injuries].

                  The Damage Amount. “Now in closing argument we will help you use your power to fix and help Judy Brown. We will show you how to place a reasonable value to fix and help address Judy Brown’s injuries. We will demonstrate that a reasonable value is $168,086.”

                   

                    March 30th, 2014

                    The Personal Injury Associate-MIST Trial-Jury Selection

                    In this post I begin my report on my first jury trial. The case is a MIST case. MIST is an acronym coined by the insurance industry standing for “minor impact soft tissue.” Insurance companies know these cases are hard to sell to juries because many people do not believe a person can be injured if there is no visible damage to the cars involved in the collision.

                    John Henry suggests I read Trial by Human, by Nick Rowley. I read Nick’s book. Nick Rowley is one of the best trial lawyers in the United States and his book is a must read.  For jury selection I use a combination of Nick Rowley and Gerry Spence (“show yours to get them to show theirs”) tailored to my style.

                    Introduction. “I am nervous and scared, but this is an important part of the trial because this is the  time we get to talk together. This is my chance to find out which 13 of you are up for the job of being on this jury. It’s a job that will take at least four days, and its a job that is important to Judy Brown because this is her only chance to present her case. Now I bet many of you also feel nervous and scared because a lawyer is asking you questions, but I must do this to learn how you feel about important issues. I will be brutally honest with you. I ask you to be brutally honest with me-even if you feel I will not like what you have to say. I want to hear your feelings now rather than when the trial is over and you come up to me and say why did you pick me for this jury given my feelings about your case.”

                    Showing Warts. “Let me tell you a big concern I have about our case-in our case Judy Brown claims personal injuries from being rear ended by defendant. You will see the bumpers of the two cars, and you will see no damage to either bumper. What do you feel about a person seeking money after a rear end collision with no visible bumper damage.”

                    (This opens jury selection with me disclosing the biggest problem in my case. I listen to the jurors react. There is no wrong answer, I never disagree with a juror. This is because I need to hear negative feelings. Some express doubt on being injured without visible bumper damage. But a juror says a person can be injured without visible damage to the bumpers. I agree saying: “This case is about a person not a person’s bumper).”

                    Next I tell the jurors: “My client asked me for a recommendation for a doctor and I suggested the doctor she treated with. What do you feel about this?” (The discussion defuses another wart in our case).

                    Topic Areas. I introduce the question of  lawsuits to get money for an injury and ask what they feel about this. Following on this topic I move into money for medical bills (which all agree is not a problem). I then introduce money for pain and suffering: “What do you feel about money for pain and suffering?” (Here some jurors have a problem. No wrong answer but this leads to discussion on general damages in a personal injury lawsuit). I follow with: “What are important things in life?” (This leads jurors to discuss the importance of health, job satisfaction, activities, and interaction with family and friends. This evolves to jurors recognizing the loss of or diminution of the ability to work, do activities, and engage in relationships is significant. Next I introduce: “How important is it to be accountable for our actions?” “Does it matter if we do not mean to negligently harm a person?” “Does a money verdict have an impact beyond the particular case?”

                    Challenges. (When a juror is discussing her feeling on a topic I focus on the juror. My eye contact is with the juror. I continue with the juror by listening and with follow up. My goal is to get the jurors to talk 80 to 90% of my  jury selection time ). When a juror takes a position that is undesirable for our case, I ask the juror: “Should I fear having you on our jury.” (Some say yes and going deeper results in one of the jurors agreeing to a challenge for cause which the judge grants. After, I thank the juror for her honesty).

                    By disclosing my case weaknesses I beat defense to the punch, and show the jury I am honest. Through our discussion we learn feelings that allow us to best exercise preemptory challenges. On preemptory challenges, we only challenge jurors who will destroy us.