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 believed the outcomes of trials rested 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.

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What Darrow learned from his father. My father “taught me to question rather than accept. I had little respect for the opinion of the crowd. My instinct was to doubt the majority. John A. Farrell, Clarence Darrow Attorney for The Damned, (First Vintage Books Edition, May 2012) at 25. 

Voir Dire. “Darrow, dressed in homely clothes, with baggy trousers and unshined shoes,” strolled around the courtroom or draped himself over the back of a chair, or leaned into the box to question a juror. He had a soft drawl and a relaxed approach and engaged in a confidential exchange with jurors. “There was method in Darrow’s manner; he believed that a juror’s decision was inevitably based on emotion, not intellect. The more he could in quiet conversation, weigh man’s heart the better.” Id. 164.

Demeanor. The press reported Darrow to be a man of intellect and subtlety with an old shoe manner, and a capacity for getting inside the skin of a witness that is possessed by few lawyers. There is nothing theatric about him. He never strikes an attitude. He never explodes. He stands before a witness and just bores into his mind, gently, shrewdly with every appearance of wanting merely to know the truth and nothing more. Id. at 165-66.

Opening. Darrow “approached the jury and, with no flourishes or preliminaries, began to speak in his slow mellow drawl. At times he would lean forward, until their noses touched. Sometimes he’d pause to consider, and wipe his glasses. He spoke in the straight simple language of the hills and mines. One reporter said. He gave them a talk much in the same manner that the good old deacon in the little Methodist church you used to attend led the class meeting.” Id. at 172

Cross Examination. “Darrow believed that important witnesses in major cases were so well rehearsed that as a rule it is futile to go over in cross-examination the testimony already given.” Id. at 169. In the Loeb and Leopold case Darrow for the most part “decried the spectacle [of the state's presentation of an army of minor witnesses and] declined to cross examine,” but he chose to grill a police detective who stated “Leopold’s boast about a friendly trial judge.”

“Darrow rose, swung his chair around and leaned upon it. He pressed the detective for witnesses, notes, or other supporting evidence. … When the copper hedged he pounced.

“Who was with you?”

“Nobody but he and I,” the detective acknowledged.

“Did you make any memoranda on it?”

“Not at the time…”

“Mr. officer, don’t you know that this story of yours in reference to a ‘friendly judge’ is pure fabrication made for the purpose of intimidating the court?” Id. at 343.

(The Loeb and Leopold case was a thrill killing case where Darrow plead Loeb and Leopold guilty in a bench trial where the only issue was whether Loeb and Leopold would be hung or receive life in prison. Judge Caverly sentenced the young men to life in prison).

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If Spence is right, and I assume he is, we are biologically programed to make decisions from the heart. We are programed from thousands of years of evolution to trust our heart. Since the birth of rationalism we are taught to make decisions from the cerebral cortex. We are taught to take emotion out of the equation. A decision is supposed to emanate from the mind and therefore it is deemed “rational.”

But are thousands of years of evolution to be cast aside in the name of “rational” thought? Why not yield to what we have successfully done from the beginning of human time? That is listen to our heart; admit that we make decisions from the heart; and, admit decisions made from the heart are the best decisions we make. Listen with your heart, trust your heart, and go where your heart directs.

The post Listen with Your Heart appeared first on Zen Lawyer Patrick Trudell.

A quality opening statement requires becoming one with our client’s story. Becoming one with our client’s story means feeling the emotion of our client’s story. To accomplish this we follow the following steps:

Listen. We begin by asking our client to show us her story in the first person present tense. We listen to our client. The tendency is to project our story into our client’s story, rather than listening and identifying with our client’s emotions. After we listen to the story we probe our client by asking her what she feels as she relives the events in the first person present tense.

Role Reverse. Next we role reverse and become our client. As Atticus Finch tells daughter Scout: “You never really understand a person until you consider things from his point of view — until you climb into his skin and walk around in it.” Through role reversal we feel the emotion of our client. This allows us to  understand and relate to our client at the highest level.

Doubling. Once we feel our client’s story we go deeper into the story through doubling. We  sit or stand behind our client as she tells the story in first person present tense. When we feel something deeper in the story we speak to our client from behind by becoming our client’s voice. We coordinate this so our client adds our input into the story if it fits how she feels if not our input is ignored. When doubling works our client is assisted in getting to a deeper emotional level.

Recreate Scenes. Seeing is believing and seeing can cause a subjective (spoken) fact to rise to the level of an objective (visualized) fact. Thus we recreate key scenes in our client’s story using props. Props are as simple as office chairs to represent a room where the scene occurred. We can also use people in our office to play the role of others in the scene. We assist our client in reliving the scene by directing the scene. Once the scene is created another person can play our client as she observes the scene, verifies accuracy and gets in touch with her emotional response.

Identify Emotional Power. Now that we have recreated what we feel are key scenes we and our client can identify scenes that contain emotional power in the story. This emotional power is felt at a deep level by both attorney and client. We have now discovered where the emotional power will come in our opening statement. Cases are won when the  emotions of our client flow into the courtroom.

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But all cases cannot be tried, and some cases should not be tried. Likewise, to be a viable personal injury lawyer all cases cannot be settled and some cases should not be settled. The key is to have balance. Balance in knowing when to try a case and knowing when to settle a case.

On reflecting on the Yin and Yang, and balance within a personal injury practice, I believe as a general rule the Yang must be in the forefront when we begin a case. This is because we cannot settle a case for fair value unless the insurance company knows we can and will try the case. Thus, we never take a case we cannot try. When we begin this way a Yang aura permeates the case- the insurance company takes us seriously. The Yin aura is appropriate after we are taken seriously by the insurance company. This is when fair value will be paid. The Yin-settlement- must be appreciated: the client receives fair value; the client receives a certain result; and, the client is freed from the battle of a trial.

“The Chinese have long realized that the two T’ai Chi elemental powers must interact, and the harmonious result …[brings] progress and unlimited development.” Id. at 8. When we practice personal injury law following the two T’Chi elemental powers of Yin and Yang we concentrate on balance. Balance is to the benefit of our client and our law practice.

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Medicare and Medicad Liens. The Medicare program was established by Congress in 1965 in the Social Security Act. 42 U.S.C. sec. 1395 et seq. Medicare provides medical payments for Medicare eligible people (people receiving Social Security benefits). Under federal law Medicare has a super lien for reimbursement of Medicare benefits paid for the injured Medicare recipient’s medical specials. Nonetheless, federal regulations require Medicare to reduce the amount of its recovery to take into account the cost of procuring the settlement when the claim is disputed and the recovering party has borne cost in obtaining the recovery. In re: Zyprexa Products Liability Litigation, 451 F. Supp.2d 458(E.D.N.Y. 2006)(analysis of Medicare and Medicade liens). Federal law also recognizes Medicad (state version of Medicare) liens, and provides federal authority for collection of Medicad liens.  See Arkansas Dept. of Health and Human Services v. Ahlborn, 547 U.S. 268 (2006)(Arkansas Medicare statute for plenary lien held invalid, must recognize injured plaintiff).

Medicare Set Aside. A MSA is a fund separately identified from the settlement proceeds to be paid to Medicare for the injured plaintiff’s future medical needs. Recently defendants (insurance companies for defendants) have been arguing the settlement must include a MSA. This argument is made even when the injured plaintiff is not yet and may never be a Medicare recipient. Defendants also try to dictate  the amount of a MSA. In personal injury cases, these arguments must be resisted  to the point of litigating the MSA issue.

Federal Authority. “No federal law requires set-aside arrangements in personal injury settlements for future medical expenses.” Sipler v. Trans Am Trucking, Inc., (D.N.J. 2012). As recognized by the Sipler court, tort cases involve non-economic damages which are not determined by an established formula. See Zinman v. Shalala, 67 F.3d 841,846 (9th Cir. 1995). “[T]o require personal injury settlements to specifically apportion future medical expenses would prove burdensome to the settlement process, and, in turn, discourage personal injury settlements.” Sipler; cf. Ahlborn,  587 U. S. at 268  (in context of Medicad).

Solution. Our solution is plaintiff will consider the need for a MSA after consulting with a  MSA law firm, but plaintiff has the responsibility and discretion to determine the final set aside (if any). The terms of the settlement order  give plaintiff control over the MSA issue. Below is the relevant language:

Finding of Fact-Establishment of Qualified Settlement Fund. The parties have agreed to use a Qualified Settlement Fund  (QSF) established pursuant to section 468B of the Internal Revenue Code for purposes of holding the settlement funds and the disbursement of such funds pursuant to orders of this court.

Conclusion of Law-Orders of Disbursement. Orders of disbursement from the QSF will be made to ensure Medicare conditional payments are reimbursed, that a Medicare Set-Aside (if needed) will be properly funded by plaintiff out of the settlement proceeds, and that plaintiff receives the full benefit of this settlement.

Order. Plaintiff’s counsel shall promptly engage the services of Garretson Resolution Group, a professional firm that specializes in Medicare Secondary Payer compliance, to evaluate the case, determine whether a Medicare Set-Aside (MSA) is recomended, and if so, to present a proposed MSA Allocation. Plaintiff’s counsel and the QSF Payment Administrator shall take into account the MSA recommendation of Garretson to determine if a MSA is appropriate and if so the amount needed to fund the MSA.

The post Medicare Set Aside Argument appeared first on Zen Lawyer Patrick Trudell.

1. Illicit.  Get the witness to state the contradictory testimony. (Standing so witness must face jury to answer).

2. Set Predicate.  Have witness agree to prior sworn statement. (Date, place, to whom).

3. Produce. Hand clerk the prior statement and have it marked as exhibit. (Give copies for judge and opposition counsel).

4. Witness Reads. Hand marked prior statement to witness and have witness read.

5. Dangle Witness. Go to counsel table and futz around while witness has to either continue looking at jury or look away.

6. Return. After letting witness dangle (until judge asks you to resume) return to cross but to a new area of questioning.

(This is because we do not want the witness to return to impeached topic to rehabilitate through answer to similar line of
questioning).

The post Cross Examination-Using Prior Statement appeared first on Zen Lawyer Patrick Trudell.

The Great Artist.  John Henry begins by telling me a story about a William Cumming art exhibit he attended several years ago where Mr. Cumming spoke in the afternoon. When Mr.Cumming took questions a young man asked him if art school teaches a person how to be an artist. William Cumming looked at the young man in silence for several seconds and then said an artist is an artist and does not need to be taught how to be an artist by an art instructor. John Henry says the same is true of a quality lawyer.

Do the Research. John Henry subscribes to Westlaw and uses Westlaw Classic. He rarely uses Westlaw Next. This is because he does not use legal secondary sources such as ALR or CJS. John Henry teaches to arrive at my own arguments given the story of my case and original legal sources. Like an artist we write from the heart. We never rely on a brief written by another lawyer.

One With Client. John Henry teaches to bound with the client. My client meets with me when we sign the case. I listen to my client tell her story. I have my client speak in the present tense and show me what happened and her reaction. This allows me to see as close to first hand how my client is impacted. I go to my client’s home and spend time with her to get into her skin to understand her injury. My client and I answer interrogatories together. My client and I prepare for her deposition together. We do this by discussing the elements of the case and telling the story in a clear compelling way.

Believe in Myself. John Henry says the key is to believe in myself every step of the way. Like William Cumming I am an artist in the law. When I know the facts inside and out, have my client’s story internalized, and  feel similar emotions to my client I am ready to trust myself. No one can show me how to try the case, and this is why I am a legal artist.

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Between the two states of a relaxed body and spiritual freedom “there is a difference of level…[reached] by withdrawing from all attachments [a] becoming utterly egoless: so that the soul, sunk within itself, stands in the plenitude of its nameless origin.”

To accomplish actionless activity instinctively “the soul needs an inner hold, and it wins it by concentrating on breathing. … The breathing in, like the breathing out, is practiced again and again… with utmost care. One does not have to wait long for results. The more one concentrates on breathing, the more the external stimuli fade into the background.” Soon we become detached from all stimuli. We only know and feel our breath. Our breathing slows to the point it also escapes our attention.

“This state, in which nothing definite is thought, planned, striven for, desired or expected, which aims in no particular direction and yet knows itself capable alike of the possible and the impossible, so unswerving is its power-this state, which is at the bottom purposeless and egoless …[is] truly spiritual.”

Eugen Herrigel, Zen in the Art of Archery (1953).

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“An army of soldiers with such a spirit would be invincible. For faith lifts and expands the heart above and beyond all that the senses fear.” It is a delight to be one with the Absolute as there is a confidence in one’s actions which makes everything acceptable. There is also “a certain detachment of soul which enables us to handle any situation and every kind of person.”

With faith in the Absolute “we are never unhappy and never weak.” This is because we always see the Absolute “acting behind happenings which bewilder our senses. Srticken with terror, our senses suddenly cry to the soul: ‘Unhappy wretch, now you are lost and there’s no hope of rescue!’ The robust voice of  faith instantly replies: ‘Hold fast, go forward and fear nothing.’

Jean-Pierre De Caussade, Abandonment to Divine Providence (d.1751)(First Image Books edition 1975)(Chapter III (4) at 64)(edited by P.A.T.)

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