April 19th, 2014

The Personal Injury Associate-MIST Trial-Cross Examination

atticusDirect. 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

    Get-to-Know-Someone-Better-Step-9John 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 clients story with our client and know instinctively when to end on powerful testimony.

      April 11th, 2014

      The Personal Injury Associate-MIST Trial-Opening Statement

      Hickey-Freeman-Suits-for-Men_03John 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

        bbc_the_verdict_juryIn 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.

         

          February 16th, 2014

          What’s In It For Me?

          dimaggio-1Several years ago when reading  Joe Dimaggio’s biography I was taken aback by Dimaggio’s usuall first reaction: “What’s in it for me?” The great Yankee being first and foremost concerned about himself. Sales philosophy teaches what matters is what the buyer believes is in it for him. Dale Carnegie writes: Why talk about what we want. Altough we are eternally interested in what we want no one else is, because everyone else is interested in what they want. “So the only way on earth to influence other people is to talk about what they want and show them how to get it.” Id.

          Applied to a jury trial we know what we want, and what the defense wants, but failing to connect with what the jurors want results in a roll of the dice. This is because what the jurors want  is the key to success. We must get to what the jurors want and show them how to get it.

          This is what the reptilian philosophy recognizes. The reptilian must not be forgotten, but there is more to it than a simplistic low brain analysis. We should remember the middle emotional brain and the logical cerebral cortex. When we do this we factor in the emotional component of like-ability, and the cerebral component of logic meaning we make sense.

          To put this together we must first discover our client’s story. In discovering the story we feel the betrayal of our client, so we can convey our client’s betrayal to the jury. The jury must feel defendant’s conduct is conduct that demands a corrective response because society is better when people are held responsible for their actions. There must be a connection between lawyer, client and  jury so the jury understands their corrective response benefits society which in turn benefits the jury.

           

            December 27th, 2013

            New Year’s Resolution-Connection

             

            Connect-with-Otherscon·nec·tion  (k-nkshn)

            n.

            1.

            a. The act of connecting.
            b. The state of being connected.
            2. One that connects.
            3. An association or relationship: There appeared to be a connection to the group.
            4. Reference or relation to something else; context: With this connection we can work for justice.

            For my New Year’s Resolution I am working on “connection’” as in connecting with others. Connection for me will be accomplished by listening in the moment.

            To connect by listening we give up preconceived ideas and subjective opinions. We listen and observe the ways of the speaker. We accept the speaker without our emphasis on good or bad. We feel things as they are with the speaker. To successfully listen we clear our mind to facilitate openness to things as they are.

            In responding we must be true to ourself without phoney adjustment to suit the other. If we “try to adjust ourselves intentionally, it is impossible to be natural. …” So without any intentional, fancy way of adjusting” we respond being straightforward.  Shunryu Suzuki, Zen Mind, Beginner’s Mind, (Weatherhill 1970).

             

              October 17th, 2013

              Trial Lawyer Resilience

              16158542Reading a great book, James Daniel Brown, The Boys In The Boat (Viking 2013). In discussing George Pocock, a master shell builder in the 1920s and 30s, Brown writes about Pocock’s discovery of cedar as the ultimate wood for a racing shell; with the result being “the boat as a whole [is] under subtle but continual tension caused by the unreleased compression in the skin, something like a drawn bow waiting to be released.”

              “To Pocock, this unflagging resilience-this readiness to bounce back, to keep coming, to persist in the face of resistance was the magic in cedar.” This unseen force imparts life into the shell. “As far as Pocock is concerned a shell that does not have this “life” in it is unworthy. Id. at 139.

              This passage rings true of the worthiness of a trial lawyer. The trial lawyer is under a subtle but continual tension in trial-like a drawn bow. The trial lawyer must have unflagging resilience- a readiness to keep coming especially in the face of resistance. This is the unseen make up of a quality trial lawyer. Without this make up the trial lawyer is unworthy of the responsibility of representing an injured person against the resistance of the insurance industry.

                September 13th, 2013

                Frontiers of Trauma-Crash Phases and Energy Exchange

                three-frontiers-largeHere are some preparation notes for cross examination of defense medical expert in a significant impact personal injury case:

                Trauma. In trauma the history is the injured person’s story of the impact and the energy exchanged from the impact. To evaluate traumatic injury we must begin with an understanding of the crash phases.

                A traumatic event is divided into three phases: 1) Pre crash phase: 2) Crash phase; and 3) Post crash phase.

                Pre Crash Phase. This is where we analyze the condition of the person before the traumatic event. Acute or pre existing conditions must be taken into account. A traumatic event is often more injury producing to a person with pre existing conditions such as degenerative disk disease. As we say if we are lucky we get old;   when we get old we get degeneration like degenerative disk disease. So if we are lucky we have degenerative disk disease. The down side is we are less able to handle a traumatic event. Other pre crash considerations include the body position before trauma, expectancy  and gender.

                The Crash Phase. ”The crash phase begins at the time of impact between one moving object and a second object. The second object can be moving or stationary and can either be an object or a person.” Kinematics of Trauma at 45. In a motor vehicle collision three impacts occur: 1) the impact to the vehicles; the impact to the people in the vehicles; and 3) the impact to the organs inside the people. For example, in a motor vehicle  collision the first impact is the collision between the vehicles. The second impact is to the occupants such as striking the seat belt, the air bag, the head rest or the inside of the vehicle. The third impact is to the occupant’s internal organs and chest wall, abdominal wall  and skull. Id.

                The Post Crash Phase. This phase begins with the care of the injuries. The post crash continues for a lifetime in a permanent personal injury case.

                Energy Exchange. In any traumatic injury case it is important to evaluate and understand the energy exchange. This allows us to get a handle on the forces involved in the traumatic event. Medical providers and juries relate well to cases involving the exchange of significant force. This is because there is a common sense relationship between the exchange of significant force and injury. Here we need to visit basic laws of motion.

                The Law of Conservation of Energy and Newton’s Second Law of Motion. “The law of conservation of energy combined with Newton’s second law of motion describes that energy cannot be created or destroyed but can be changed in form.” Id. Applied to an automobile collision, the motion of the colliding vehicles is energy. When the vehicles collide their energy is dissipated by the bending of their bodies. Energy is then dissipated inside the vehicles as occupant bodies strike objects inside the vehicle. Energy dissipation continues inside the structures of the bodies of the occupants as their organs stop their forward motion against the chest wall, abdominal wall and skull. This translates to personal injury.

                  August 5th, 2013

                  The Associate-First Jury Trial

                   

                  popupMy first jury trial is one month away. Today I talked to John Henry about jury selection. When I asked him about jury selection he told me about hearing the “Three Amigos” on NPR. The “Three Amigos” are three religious leaders-a Jewish Rabbi, a Muslim Iman, and a Christian Priest. John Henry told me to listen to the “Three Amigos” to learn the essentials of Jury selection. Well I listened to them and this is what I learned:

                  How to Begin. Rather than beginning a discussion with another person about religion (or with a juror about the case) we begin by learning who the other person is. For the “Three Amigos” this means they do not begin a religious discussion “by discussing common and disparate beliefs.” They begin by getting to know the other person. Here there is no right or wrong answer. There is never criticism of the other person. There is no debate. There is acceptance of who the other person is and how they perceive and feel about issues.

                  Listen. John Henry added that to get to know another person we must get into their  skin. To do this we must listen. It sounds easy to say OK we can listen, but listening is easier said than done. Usually we start to think what we am going to say as we wait for the other person to stop talking. Then we immediately start to talk. John Henry says this is not listening. Listening is being present in the now while the other person talks. Listening is internalizing what the other person says by feeling what the other says. While the other speaks we make eye contact, and we are open to the other. When they stop talking we reflect on their their words and body language. This means silence rather than an immediate response. We respond by acknowledging what the other said through words and body language that lets the other know we understand.

                  Reveal Vulnerabilities. The “There Amigos” teach to “reveal vulnerabilities,” when we discuss our feelings with the speaker. By doing this we engage the other in a discussion of beliefs. Here there is honesty about ourself and  acceptance  of the speaker. In this way we get to know the speaker. We do not try to convert the speaker. Rather we discuss how each of us can make room for the other’s belief without conversion.

                  Overcome Ego. The ‘Three Amigos” teach we must bury our ego-”our little self.” By doing this we open up to the lives of others. This is not what I learned in law school. John Henry says law school stresses debate and argument. In jury selection we stress honesty and acceptance. We are looking for inclusion rather than exclusion. John Henry says the jury is like a tribe and we are the voice for the tribe. We are all in this together.

                    May 20th, 2013

                    Learning from Clarence Darrow (Part Two)

                    Clarence-Darrow-Scopes-Trial-2Continuing to discuss highlights of John A. Farrell, Clarence Darrow Attorney for the Damned (First Vintage Books Edition, May 2012):

                    Philosophy. The only thing worthwhile is to develop your own individuality and leave something that will liberalize the few who know and care you lived. Id. at 194. “No man is judged rightly by his fellow men. We go here and there, and we think we control our destinies and our lives, but above us and beyond us are unseen hands and unseen forces that move us at their will.” Id. at 263.

                    The War of Trial.  Darrow uses the analogy of war when referring to trial: I try cases in the front trenches, fearing nothing. “The front trenches are disagreeable; they are hard; they are dangerous; it is only a question of days or hours when you are killed or wounded… . But it is exciting. You are living; and if now and then you go back to rest, you think of your comrades in the fight; you hear the drum; you hear the cannon’s voice; you hear the bugle call; and you rush back to trial and to the thick of the fight. There, for a short time, you really live. It is hard, but it is life.” Id. at 326.

                    Likability- The Most Important Element in a Case. Darrow believes the outcome of trial rests on the elemental factor of likability. When the opposition lawyer is trying to bully the witness Darrow lets him continue, trusting he will antagonize the jury. It is only when he knows the jury is upset that he responds and puts the lawyer in his place. See id. at 346.

                    Voir Dire.  Wearing his familiar gray suit, Darrow slouched with his hands in his pockets or slowly roamed the courtroom speaking in a low voice to the jurors. The court and the jurors are all with him and the jurors are eager. “He ever so often makes some droll remark that sets the entire courtroom to laughing and instantly all tension is relived.”  But like all lawyers he makes mistakes: “He pushed too far  with one prospective juror [and asked a needles question that lead to the prosecutor excusing a good juror]. You have to know when to stop,” Darrow told friends that night. “One question too many and you lose a desirable juror, I should have know enough to refrain.” Id. at 409.

                    Style. Darrow uses simple words when talking to the jury and from time to time he makes meaningful eye contact with a juror. Throughout the trial he includes all of the jurors through meaningful eye contact. He has a natural demeanor as if the jury is a tribe and he is a tribal member. See id. at 254.”Everything is natural, unaffected and perfectly timed.” Id. at 435.

                    Tactics. Darrow once explained his tactics in a criminal case: “You try to throw around the case a feeling of pity, of love, if possible, for the fellow who is on trial. If the jurors can be made to identify with the defendant and his pain and position they will act to satisfy themselves. At this ponit the case is won. Juries will furnish their own rationalization. If a juror wants to do something , and is intelligent, he will give a reason for it. You’ve got to get him to want to do it. That is how the mind acts.” Id. at 287.