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.

          April 29th, 2013

          Learning from Clarence Darrow (Part One)

          268_darrowbookcoverJohn Farrell’s biography of Clarence Darrow is an engrossing read for trial lawyers as we can learn from Clarence Darrow-the greatest trial lawyer of the early twentieth century:

          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 a 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).

           

            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
                    questioning).