I just finished reading a column in The Wall Street Journal titled The Fine Art Of Where To Start [a story] by Darin Strauss. Mr. Strauss says the most important part of a story is the beginning as in the first words out of the lawyer’s mouth in opening statement.

Opening Statement Must Tell a Story. In a personal injury case the story involves an injury to plaintiff. Mr. Strauss says the first lesson in story telling is to remember “A story equals trouble.” The personal injury story must discuss how the trouble has caused injury to plaintiff.

Beginning the Story. Mr. Strauss  believes the sooner we introduce the trouble into the story the more likely our listeners (the jury) will pay close attention. To Strauss this means beginning the story with the critical action of the trouble.

Jacob Appel in Writer’s Digest reasons:

I started devoting an entire session of my writing class to opening lines when I realized that the last formal instruction I’d had on the subject was the grade school admonition that stories should begin with “a hook.” In the years since, I’ve come to believe that the fate of most …[stories] is sealed within the initial …[phrases]—and that the seeds of that triumph or defeat are usually sown by the end of the very first sentence.

The Current Model. Quality lawyers and jury consultants teach to begin opening statement by telling the jury the story.  When telling the story David Ball advocates beginning with the rule then going to the story focusing on defendant rather then plaintiff. Mr. Ball usually begins the story before the trouble. In a factual narrative he teaches let the story unfold as it happened  with plaintiff being introduced after defendant causes the trouble.

Current Model Revised. We plan on tweaking the Ball model by beginning with the impact caused by the trouble. We will state this in a thematic way thereby introducing our theme with the impact caused by the trouble. This is similar to Ball’s model of beginning with the rule. After this beginning we will go to the narrative story as does Ball focusing on defendant. After the narrative gets to defendant causing the trouble we will introduce plaintiff as the victim of the trouble. We believe this will lead to a favorable jury reaction as taught by Mr. Strauss.

The week between Christmas and the New Year is a good week for movies. Below is my list for lawyers:

To Kill a Mockingbird. A great book every lawyer should read and a great movie every lawyer should see. As usual the book trumps the movie, except the movie has Gregory Peck acting like every lawyer should act. If we follow the model of Gregory Peck we will look like a lawyer, talk like a lawyer, and have the demeanor of a lawyer at home, in the community and in the courtroom.

My Cousin Vinny. This is a classic every lawyer will love. It’s funny, and it’s good. We see professionalism with the prosecuting attorney. We see a difficult judge. We see great cross examination. And we learn a whole bunch about the 1963 Pontiac Tempest which had positraction and was driven by the killers and how it cannot be mistaken for the 1964 Buick Skylark driven by Vinny’s cousin.

Hot Coffee. This is a 2011 documentary begins with the infamous McDonalds case, tells the brutal truth about the case, and continues to document corporate America’s and the Chamber of Commerce’s methodical campaign against legitimately injured people and the judges who have the courage to rule  for the little guy. I pay every staff member who watches the documentary a $50 bonus.

Witness for the Prosecution. This movie is worth watching because the great actor Charles Laughton plays the English barrister defending his client against a charge of murder. The movie has excellent cross examination scenes by Laughton. It is also fun to watch how a case is tried in England the land where our common law was born.

Twelve Angry Men. This classic with actors including Henry Fonda, Jack Warden, Lee J. Cobb, Jack Klugman and E. G. Marshall is the best jury movie ever made. It gives all trial lawyers hope in that convincing one bright dynamic juror may mean winning the case.

Compulsion. This movie is a must because it is a take off on Clarence Darrow’s life saving defense in the famous Leopold and Loeb thrill killing case. Darrow is played by Orson Wells who does a great job in playing the finest trial lawyer who ever lived. Darrow’s closing is recounted by D. McRae, The Last Trials Of Clarrence Darrow:

“I am pleading for the future ,” he said huskily. “I am pleading for a time when hatred and cruelty will not control the hearts of men, when we learn by reason and judgment and understanding and faith that all life is worth saving, and that mercy is the highest attribute of man.” Darrow felt his own eyes moisten when he saw that [Judge] Caverly was crying…silent tears… powerful enough to alter the shape of the judge’s twiching mouth.

“I was reading last night of the aspiration of the old Persian poet, Omar Khayyam,” Darrow murmured, as his own tears began to roll down his crevassed face. His voice, however, remained firm. “It appealed to me as the highest that I can vision. I wish it was in my heart, and I wish it was in the heart of all:

So I be written in the Book of Love

I do not care about the Book above

Erase my name or write it as you will

So I be written in the Book of Love.

Darrow’s head was bowed, and his eyes were filled. And then aften ten long seconds, he looked up again and nodded to the judge. Slowly, Darrow returned to his seat, the silence following him with gathering force. The quiet held, as if no one dared break the spell.

The Seattle Times Mission Statement provides in part: “To be an independent and influential advocate for children, schools [and] safe and clean communities… .” Interestingly in its lead editorial of November 23, 2011 the Times puts forth an argument to return to a form of sovereign immunity where there would still be the ability to bring a legal action against the state, but  the remedy for a fault free plaintiff would be limited.

The Times editorial is contrary to its mission statement and a misguided argument that if carried out will harm its common people subscribers.

Sovereign Immunity. The doctrine of sovereign immunity  is literally a creature of English kings, meaning, “The king can do no wrong.” Fortunately Washington abolished sovereign immunity in 1961. This is because the principle that government must be accountable legally for the harm it directly causes to its citizens is a fundamental principle of our revolutionary history and the American republic.

Difficulty of Lawsuits. Although Washington State has waived sovereign immunity suing and recovering from the state or a municipality in Washington is not an easy task. The Seattle Times editorial argues our legal system is “too quick to settle and more generous then it should be.” The reality is when cases settle insurance company lawyers, state attorneys, or municipal lawyers have concluded a settlement is in the best interest of their client. When a jury provides compensation to an injured plaintiff  it is not out of generosity. It is because the injuries are real, and the jury concludes the amount of its award will fairly compensate the injured plaintiff.

Joint and Several Liability. The Times misleads its readers on Washington law when it says Washington law should be changed “so the state doesn’t have more exposure then private entities.” The law is the state has additional procedural protections beyond private entities. Substantively it is on the same footing as a private entity.

What the Times wants is an end to joint and several liability as we have it today whenever the state or a municipal entity is a co-defendant in a lawsuit. The law as it stands allows joint and several liability to a fault free injured plaintiff when two or more defendants are liable. Under joint and several liability if the damages to a fault free plaintiff  are $100,000 with one defendant causing 10% of the negligence and the other causing 90% the plaintiff can take the $100,000 from both defendants or one defendant. If the state is 10% negligent and the other defendant is insolvent then plaintiff can still recover his $100,000 from the state.

The Times would change the law so the state would only be responsible for $10,000  of the $100,000 in damages. If the 90% liability defendant is insolvent the fault free plaintiff is precluded from collecting 90% of his judgment.

Unfair Result. The Times ignores its mission statement in calling for an end to joint and several liability when the the state is a co-defendant. Fault free babies, school children and common members of the community would in cases of an insolvent defendant be left with a partial recovery when the state is a co-defendant. Under our law as it stands the fault free injured person receives a full recovery. At times this does mean the co-defendant state pays all of the judgment. But when this happens the state has been found to be negligent and plaintiff has not. Unwittingly the Times is arguing against the babies, children and common members of the community it says it is an advocate for.

Recently in the Seattle Times there was an editorial titled Making Seattle roads safe for all. The editorial states about 26 people die each year in Seattle from traffic injuries. Thousands more are injured each year in automobile collisions.

The editorial reasons a combination of factors are involved in collisions that result in injury: impairment, speed, distraction, inattention, following too closely, and failure to yield to name a few. As pointed out in the editorial “these are not accidents.”  These are injury collisions that could have and should have been prevented.

The editorial says what is needed to make our roads safer is to adhere to the “E’s of traffic safety-education, enforcement, environment, and empathy-because it will take a multifaceted approach to fix our roads… .”  When we apply these “E’s” to the civil justice system we see juries have a role in making our roads safer.

Education. When a collision is caused by the negligence of another driver our civil justice system provides for damages to the injured driver. When fair damages are awarded by the  jury the negligent driver is educated on the reality his negligence will result in paying compensation to the injured party. This also has the effect of educating society beyond the parties in the lawsuit. When a jury speaks society listens, and the message when compensation is awarded to the injured driver is negligence has a consequence.

Enforcement. When a negligent driver causes injury to another he generally receives a traffic citation. Usually a relatively small fine is paid- small in relation  to what has been done to the injured driver. When the negligent driver fails to account for his negligence he often ends up in a civil trial. When a jury provides fair compensation for the injured driver we have a higher level of enforcement. We have enforcement where the amount of damages paid by the negligent driver directly relates to the damage he caused.

Environment. In some cases the injury is caused by unsafe road conditions that the city, county, or state could have and should have made safe. When negligence is proved against the government, and fair damages are awarded, the government is held accountable for negligently allowing an unsafe environment. This in turn causes the government to be more diligent in ensuring a safe environment, because to not do so will result in a financial consequence.

Empathy. In our civil justice system this means caring for the parties in the case. When the plaintiff has been left with injuries through no fault of his own the caring thing to do is provide him with fair compensation. This is what the law provides, and in this way the law has empathy. Jurors are the caring arm of the law in a negligence case.

In the movie Social Network Sean Parker says: “ When you go fishing you can catch a lot of fish, or you can catch a big fish. You ever walk into a guy’s den and see a picture of him standing next to fourteen trout?”

The movie is a fictional version of how Facebook  was started. Today it is a rare client who does not have a Facebook page or some type of internet presence.

Defense lawyers and insurance companies know this. Defense lawyers and insurance companies may use your client’s Facebook and/or internet postings to hurt your case. The harm can turn the case from a big fish to a little trout. This is why it is necessary to discuss the internet with our client.

Clients need to know that once a thought is posted on line regardless of whether it’s Facebook, a website, or an e-mail the post is available to the internet world. The rules of discovery allow the defense lawyer to request postings on the internet. Defense lawyers often seek production of internet social network postings, e-mails, and website postings.

Clients need to know there is nothing private on the internet. Clients need to refrain from posting any thought they do not want the world to know. On internet postings including e-mails follow these rules:

1. Never post content you do not want the whole world to see.

2. Never post when angry.

3. Think before the post is submitted.

4. Never post about your case (before trial/settlement, during, or after).

To be effective today’s personal injury lawyer must be prepared to try the case. This post discusses the mentality of insurance companies and why filing the case is usually the only way to get a fair resolution for our client.

The Insurance Company. In a personal injury case the defendant is an individual or corporation in name but in reality we are pitted against an insurance company. Insurance companies deal in predictability. Insurance companies appreciate personal injury cases that present risk. A personal injury case  presents risk when it is going to trial.

The Traditional Model. Under the traditional model, the lawyer sends the insurance company a settlement demand before filing the case. This model evolved years ago when insurance companies were doing well on Wall Street from investment of their premiums beyond reserves. In recent years this has not been the case, so insurance companies are no longer willing to pay fair value for a non filed case that is presented for settlement.

Today’s Model. The way to get fair value for the case today is try the case. Cases that must be moved to trial are cases where the client has permanent injuries and the insurance company fails to offer policy limits or an amount equal to a fair trial result. Limits will not be offered unless it is clear to the insurance company the case has a value in excess of limits. Even then the insurance company may not offer limits unless it knows the lawyer is a lawyer known to try cases. Under today’s model often the best course is to forget trying to settle the case and file it without discussion with the insurance company.

Settlement. After the case is filed and prepared for trial then it may be ready to settle. The mind set must be “I am going to try this case, and I am ready to try this case.” At this point we deal from a position of strength and the insurance company knows this. This is the point that settlement for fair value is possible. Fair value is the amount we believe the jury will pay minus the additional cost that will be incurred if the case proceeds to trial. When the insurance company fails to appreciate the case, proceed to trial.

Trial. Try the case at the highest level. In opening tell the jury the story with a straight forward factual narrative beginning with the defendant’s conduct. For plaintiff’s case have lay witness testimony from witnesses with significant knowledge of plaintiff and the liability facts. For the injuries present expert medical testimony from the treating physician whenever possible. In cross examination stick to major points remembering short is better then long. Rarely object, show professionalism and spontaneity. In closing introduce appropriate emotion and passion. Propose a verdict that is reasonable and show how it will make life better for all.

Harper Lee in To Kill A Mockingbird says ["y]ou never really understand a person until you consider things from his point of view.”  As trial lawyers it is essential to understand this reality. One way to do this is role reversal:

Our Client. As we have discussed we practice listening when relating with our client. After listening and understanding try role reversal.  See yourself in your client’s shoes. This means all aspects of your client not just his injury. Become your client and internalize how you feel when you are him.

Defense Lawyer. Become the defense lawyer. This means having lots of cases as most insurance defense lawyers do. This means having to answer to home office as most insurance lawyers do. This also means trying to win the case. What facts do you need to know. What facts are bad for you as defense. What facts are good for you. How do you feel if the plaintiff is an honest likable person, and his lawyer is a good guy?  How do you feel if the plaintiff is a prick and his lawyer is an ass hole?

Witnesses. This means experts and lay witnesses. What is my motivation for being a defense expert witness. Am I preventing frivolous lawsuits? Do I do this to make money and this is what is most important? Do I do this because I like to work? These answers help better deal with the witness at the time of deposition and/or trial.

The Judge.  Remember to become the judge. As the judge we want to be seen as fair and impartial. We want to follow the law. We do not want to be reversed. In a close case we go with the better lawyer. This will be our advocate if there is an appeal.

Jurors.  This may be the most important person to become. The average guy and gal who will be on our jury. What do we think of the case on first impression. What makes us want to root for the injured plaintiff? What makes us want to see the injured plaintiff go down in flames.

Keep it Up. The list goes on. Keep doing role reversal. Do it in your case and do it in your personal life. It will make you a better lawyer and a better person.

I just finished a three day seminar taught by Bob Dawson and Mark Wagner. Both are successful personal injury lawyers. Both are graduates of The Jerry Spence Trial College. Although the seminar was not part of the Jerry Spence Trial College, it is clear both have changed how they practice law based on what they learned at The Trial College.

Discover the Story. At the seminar Bob and Mark stressed representation of a personal injury plaintiff cannot be done at the highest level unless the lawyer takes the time to discover the client’s story. The client’s story consists of the emotional components of their injury.

Listen. The client must reveal the significant emotional moments of her injury. Getting this to happen is the first step in becoming a quality trial lawyer. The key is to learn from the client the emotional moments. The only way this can be done is to listen to the client. The tendency is to illicit facts of the case from the client, and soon begin to fill in the facts with how we interpret the facts. We learn as early as law school how courts interpret facts. We want our client to have a case similar to other successful cases so he processes our client’s story like a successful personal injury case.  Thus, the story at least partially becomes our story. Once this happens our client’s story loses it’s emotional impact-it becomes a factual lawyer’s version. This causes the story to lack authenticity. The jury picks this up. The result is either bad or at best less then what  the result will be if the story is told from the heart reliving its emotional impact.

Your Story. Dawson and Wagner also teach to try a case at the highest level we must know our own story. My take on this is we reflect on our life and relive the major emotional events. This means significant events that have had an emotional impact from childhood on. This means the betrayals, the loves, the successes, the failures. More important how significant events have shaped who we are. It is only when we truly walk in our own shoes with honesty and reflection that we can relate at the highest level with our client and the jury.

Honesty. Honesty must permeate our case from jury selection through closing argument. When we suffer defeat in a jury trial the tendency is to see the jury as a “bad jury” as if it is the jury that failed to appreciate our case. In reality it is our fault in failing to appreciate the case. When we tell the story on a surface level without demonstrating the emotions that accompany the story we leave the jury with an empty story. The jury responds with empty appreciation. When we get to the emotional level reliving the significant emotional moments of the injury we recreate what happens to our client. It is raw, it is real, it is full. The jury responds with a full result.

Disfigurement damages are the easiest to prove, but the proper demonstration of disfigurement is often misunderstood.

Disfigurement. Disfigurement includes scars, missing body parts, deformed body parts,  skin color changes, loss of hair, and any  disturbing visual change to the body resulting from injury.

Most Important Body Parts. The most significant disfigurement cases involve the face. Our face is what we show the world. Our face is how we are first perceived. A facial disfigurement case is a substantial injury case. Second to our face is our hands. We can cover all parts of our body outside of our face and hands without being perceived as unusual. Arm and leg disfigurement is also difficult to hide especially arm disfigurement. In essence any disfigurement that is readily apparent and often exposed is a significant injury.

Sex and Age. As a general rule, disfigurement on a women is a more significant then the same  disfigurement on a man. Generally, disfigurement on a young person is a more significant then the same disfigurement on an older person. These realities are the realities of society and society members are who will be on your jury.

Demonstrating Disfigurement. The most important aspect of a disfigurement case is demonstrating disfigurement. The great trial lawyer Howard Nations says it best:

- Jurors are Subject to the Anesthetizing Effect

The better part of wisdom dictates that when a severely injured Plaintiff is being presented to a jury, the less time the jury can actually observe the victim, the stronger effect the injuries will have on the jurors. Long term and constant exposure to a severely injured person causes an anesthetizing effect with…jurors who become accustomed to the injuries and less empathetic with them as time progresses.

For example, a seriously burned individual who has horrendous scarring may cause jurors to look away upon first contact. However, if that person sits in the [court] room in sight of the jurors…for several days of trial, by the time the jurors enter the jury room to deliberate on damages, they will be anesthetized to the damage and will not view it as tragically as they would have upon initial contact.

From the Plaintiff’s viewpoint, the wiser course is to bring the seriously injured victim in to introduce to the panel on voir dire examination. Then ask the court that the person be excused and not have them return until they are called to the witness stand to testify. After testifying, they should not be seen again by the jury… .

The absence of the Plaintiff during the trial can be explained by a medical witness or psychologist who will testify that it is in the best interest of the Plaintiff not to hear the testimony concerning the accident either from the viewpoint of reliving the horrors of the events or hearing testimony about the devastating long term effects… . (Howard Nations, Powerful Persuasion)

Separate Element. As with all of our elements of general damage, disfigurement is a separate element. It must be segregated for the jury. Care must be taken in doing this and assigning a separate value. We only have one opportunity to get fairness for our injured client. Our injured client lives the rest of her life with her injuries.

The separate element of loss of enjoyment (of life) as a component of general damages is an example of how the law is a moving stream and how good law makes common sense.

Kirk v. WSU. In 1978 Washington State University as did all major D1 universities had a cheer leading squad. The cheer leaders were as they are today big time athletics. During a cheer leading practice Kathleen Kirk a WSU cheerleader sustained serious orthopedic injuries (elbow and leg) when she fell during a cheer stunt practice. Practice was at Martin Stadium on astroturf which is a harder surface then practice mats. The stunt was a new untried maneuver. The cheer coach had transfered and no replacement was as let named. All this translated to a negligence lawsuit against WSU.

Loss of Enjoyment. Kathleen Kirk was more then a D1 cheerleader. She was a talented ballerina. She wanted to pursue a career in ballet after college. Her injuries prevented her from becoming a ballerina. Her lawyers knew they had general damages theories for pain and suffering and for disability. But pain and suffering compensates for physical and mental discomfort. And disability compensates for inability to lead a normal life. Neither pain and suffering nor disability compensate for the loss of a life pleasure. Stated another way neither compensate for the taking of the ability to pursue a specific artistic or athletic skill.

Moving Stream. Ms Kirk’s lawyers, Richard Eymann, Steven Jones and Robert Greer, argued for a separate loss of enjoyment damage instruction at trial. Spokane County Superior Court Judge John Schultheis agreed the law is a moving stream and allowed a separate loss of enjoyment damage instruction. The jury saw the separate element of loss of enjoyment as the evidence demonstrated Ms. Kirk was a future ballerina but the injuries prevented her ballet pursuit. The jury awarded loss of enjoyment damages.

Separate Element of General Damage. The Washington State Supreme Court in Kirk v. WSU, 109 Wn.2d 448, 746 P.2d 285 (1987), agreed with plaintiff attorneys and with Judge Schultheis. The court held loss of enjoyment is a unique general damage. It is a separate general damage. It compensates for injury when injury takes away a specific artistic and/or athletic skill.

It is important to recognize loss of enjoyment is a separate general damage. It does not merge into pain and suffering or into disability. Loss of enjoyment stands alone. Loss of enjoyment recognizes special talent. Loss of enjoyment recognizes the value to the person of her special talent. Loss of enjoyment recognizes when the special talent is taken away or reduced because of injury the jury needs to be made aware. In Washington as in most states the jury then awards the monetary amount it feels properly compensates plaintiff for her loss of enjoyment.