April 1st, 2013

Listen with Your Heart

listen-with-your-heartGerry Spence teaches decisions are made from the heart. He says people decide what to do at an emotional level. They then move to the cerebral cortex to verbally justify their emotional conviction. In this way the decision appears to be a well thought out rational decision-at least it is explained that way.

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.

    March 27th, 2013

    Opening Statement-Discover the Story


    psychodramaA 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.

      March 17th, 2013

      The Yin and Yang of Personal Injury Practice

      yin-yangAccording to T’ai Chi theory, human ability is capable of being developed beyond its commonly believed potential. We are capable of the highest level of achievement. There are no boundaries when we place no restrictions or barriers on our capabilities. “One reaches the ultimate level, or develops in that direction, by means of the ladder of balanced powers and their natural motions-Yin, the negative power (yielding), and Yang, the positive power (action).” Waysun Liao, The Essence of T’ai Chi, (Shambhala 2007) at 6. These two equal powers oppose and complement each other. This natural law is usually ignored, especially by trial lawyers who see only charging Yang and distain the yielding Yin.

      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.

        February 7th, 2013

        Medicare Set Aside Argument

        32FF62BB5FA23D9C31AC21AB2799C1D0-mainRecently we settled a significant personal injury case where we addressed the issue of a Medicare Set Aside (MSA). The issue was raised by defense during settlement negotiations. Defendants argued they could be held liable by Medicare as could we if we ignored the MSA issue. They initially attempted to control what portion of the settlement funds would be used for a MSA. This post discussses how we handled the MSA issue.

        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.



          January 31st, 2013

          Cross Examination-Using Prior Statement

          OLYMPUS DIGITAL CAMERAHere is procedure, taken from Howard Nations, on using prior statement to impeach:

          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

            January 1st, 2013

            The Associate-Do It Yourself

            Today as we get ready to start a New Year, and my first full year as a lawyer, John Henry talks about habits of a quality lawyer. Habits for me to develop and stay with throughout my legal career. The habits center around the concept “Do It Yourself.”

            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.

              December 25th, 2012

              The Varieties of Religious Experience-Zen

              The first step is “a loosening of the body, without which” nothing can be properly done. This “physical loosening must … be continued in a mental and spiritual loosening, so as to make the mind not only agile, but free; agile because of its freedom, and free because of its original agility; and this original agility is essentially different from everything that is usually understood by mental agility.

              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).

                December 20th, 2012

                The Varieties of Religious Experience-Abandonment

                There is nothing more generous than a person who sees only the relation of the world with the Absolute “in all troubles and the most likely of dangers.” It may be a matter of facing death, marching into the unknown, or working like a slave for the downtrodden. In all such things the person finds the fullness of his relationship with the Absolute engulfing him instantly.

                “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.)

                  December 12th, 2012

                  The Varieties of Religious Experience-Mysticism

                  I live, yet not I, but the Absolute liveth in me. Only when I become as nothing can the Absolute enter in and no difference between the Absolute and me remains.

                  “This overcoming of all the usual barriers between the individual and the Absolute is the great mystic achievement.” In mystic states the person becomes one with the Absolute.

                  This is the “everlasting and triumphant mystical tradition,” unaltered by race or creed. “In Hinduism, in Neoplatonism, in Sufism, in Christian mysticism, in Whitmanism, we find the same recurring note, so that there is about mystical utterances an eternal unanimity which ought to make a critic stop and think, and which brings it about that the mystical classics have, as has been said, neither birthday nor native land.” Perpetually telling of the unity of man with the Absolute “their speech antedates languages, and they do not grow old.” William James, The Varieties of Religious Experience (1902)(Mysticism).

                  An example of a mystical experience is cited by James:

                  In my consciousness of the Absolute which comes to me sometimes a presence not a personality but something in myself makes me feel a part of something bigger. In these times I feel myself one with the grass, the trees, birds, insects, everything in Nature. I exalt “in the mere fact of existence, of being part of it all-the drizzling rain, the shadows of the clouds, the tree trunks, and so on.”  As the years go by such moments continue to come, but I want them continually. This is because I know “so well the satisfaction of losing self in a perception of supreme power and love,” that I am happy when this perception is constant. (James citing Starbuck’s Collection).

                    December 6th, 2012

                    The Varieties of Religious Experience (Saintliness)

                    “The collective name for the ripe fruits of religion in a character is Saintliness. The saintly character is the character for which spiritual emotions are the habitual centre of personal energy; and there is a certain composite photograph of universal saintliness, the same in all religions, of which the features can be easily traced:”

                    1) The saintly person has a feeling of a life beyond selfish interest. This is combined with a conviction of the existence of an “Ideal Power.”

                    2) The saintly person has a sense of a friendly continuity with the “Ideal Power” and her own life.

                    3) The saintly person becomes elated and free as the outlines of confining selfhood are absent.

                    4) In the saintly person there is a “shifting of the emotional centre towards loving and harmonious affections,” towards “yes” rather than “no” without regard to what others think.

                    According to William James these saintly inner conditions have the practical consequence of:

                    a) Asceticism- The lack of concern for material goods and comfort. A giving up of fighting for worldly  pleasure.

                    b) Strength of Soul- A lack of fear and anxiety, replaced by a “blissful equanimity.”  This is because of a  trusting of the natural order of things.

                    c) Purity- As the “sensitiveness to spiritual discords is enhanced, [there is a] cleansing of existence from brutal and sensual elements… .”

                    d) Charity- There is “a tenderness for fellow creatures. … The saint loves his enemies, and treats loathsome beggars as brothers.”

                    William James, The Varieties of Religious Experience, (1902)(Saintliness)