In Washington I am a member of a plaintiff association of trial lawyers initially called Washington State Trial Lawyers Association. Several years ago our organization changed its name to Washington State Association for Justice. This is because most of the people we represent do not end up in trial. What we do is:

Help Injured People. We represent injured people. I only take a case if I can get my client more of a recovery after my fees are paid than they would receive without my involvement. I take cases on a contingency fee meaning my client pays me nothing to represent them unless I recover in the case. In the end I help an injured person because without my involvement as a trial lawyer the insurance company will not pay fair value.

We Stand for Justice. In our society when a person is injured through the negligence of another justice is obtained by way of a monetary recovery. As a trial lawyer I have the ability to get a fair recovery by way of a trial and standing for justice.

We Make Society Safer. In our society it often takes a financial message to get wrongdoers to correct their negligent conduct. As a trial lawyer I have the ability to demonstrate the wrong and the damages that flow from the wrong. This in turn leads the jury (the voice of the community) to inform the community we do not accept negligent conduct.

We Lobby for the Common Person. Insurance companies are wealthy powerful corporations with agendas to turn maximum profit for their shareholders. They pay millions of dollars every year in lobbying to place barriers on damages.  The common person who sustains injuries has no lobby to take on legislation proposed by insurance lobbies. National and state trial lawyer associations are the lobbies for the common person. Through my membership in these trial lawyer associations I support efforts to defeat agenda legislation sought by the insurance companies.

Obtain Justice. I only represent people who are injured through the negligence of another.  I stick to the truth. Telling the truth translates to success in negotiations and in trial as we all have a feel for the truth. Juries want the honest injured person to receive a fair recovery. They want to see society safer through their verdict. When the insurance company recognizes this without or with a trial and the case is complete, I have the satisfaction of getting  justice for my client and  benefiting the community.

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Problem Presented. At times in jury selection I am faced with overcoming a jury bias about frivolous lawsuits.

The problem with challenging the belief is that it will not succeed.  In the words of the great Washington State trial lawyer, Paul Luvera, “You can challenge people on their bias, their life experience, and their values, but it is a waste of time.” 

Conversely,  agreeing with the belief is disingenuous  as we know most lawsuits are not frivolous. Being disingenuous with the jury is false and likely sensed by the panel. 

When faced with a jury panel where members express the belief many lawsuits are without merit Howard Nations teaches “The Spielberg Method” which suspends the bias belief for the life of the trial.

 When I am faced with a juror or a group of jurors who are tort reform/frivolous lawsuit believers I copy Howard Nations and The Spielberg Method:

 First, I acknowledge the frivolous lawsuit tort reform bias. Not only do I acknowledge it I help justify it. “Mr. Jones I understand you are saying our legal system must ferret out bad lawsuits. You believe our legal system has no room for a frivolous lawsuit.”

Second. I link my case and my client with the bias. “Mr. Jones, Brad Barnes and I agree with you. A frivolous lawsuit clogs up the court and delays recovery for a legitimately injured person.”

Third, I then agree with the juror or jurors to suspend the bias during the life of our trial.”Mr. Jones do you agree there are proper lawsuits with legitimately injured people?” “Can you agree if we demonstrate Brad Barnes has a proper lawsuit with a legitimate injury to provide justice as a juror in the form of fair compensation?”

Prove Legitimate Case. As with all cases, to succeed in The Spielberg method I must demonstrate a legitimate personal injury case from opening statement through closing argument. This means I show my client is a straightforward honest person. No overstatement, no gilding. I prove injury and damages to a decent person who is legitimately injured. This is done in a simple common sense way so the picture is clear with no confusion.

Closing and Frame of Reference. During closing argument I return to the mutual promises. In jury selection I promised to demonstrate a proper lawsuit and a legitimately injured person. Remember we discussed that there are proper lawsuits that deserve compensation. I remind the jury they agreed to provide justice in the form of reasonable compensation for a proper lawsuit. Here we have a proper lawsuit and you now have the job to recognize it and distinguish it from a bad lawsuit by providing fair compensation.

Although the bias is this still there it has been suspended during the trial. In fact  the bias has been reinforced as the juror or jurors now have recognized there is a frame of reference from which to distinguish the bad from the good. “Fortunately, you are jurors on a legitimate lawsuit and your verdict will serve to make clear the legitimately injured person will receive fair compensation.”

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Offensive Innovation comes from Gerry Spence and Stephen King.  Speaking to experienced trial lawyers at the Trial Lawyer’s College Gerry Spence explained “you have yet to try your first case because you have been practicing law and trying cases in a way that is expected of you.” At the college we learn to take off our mask and proceed how we intuitively know is right.

 In Stephen King’s book 11/22/63 there is a passage where Jake Epping a high school English teacher tells about  Harry Dunning, a janitor who returns to finish high school:

“My honors kids were juniors…but they were like little old men and little old ladies, all pursey-mouthed and ooo, don’t slip on that icy patch, Mildred. In spite of his grammatical lapses and painstaking cursive, Harry Dunning had written like a hero. … As I was musing on the difference between offensive and defensive writing… .”

Offensive innovation means knowing yourself, trusting your ability to know what is right and acting on it. Taking action in an offensive way going with what I know instinctively without defensive thinking.

Years ago I was at a lecture by the great painter, William Cumming. During the question and answer session a young man asked Mr. Cumming if an artist can learn by studying painting at an art school. William Cumming answered “the ability to create art is not taught. It comes from inside the artist.” The artist knows inside what he wants to paint and he paints it without regard for how it will be received. The artist is painting with “offensive innovation.”

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A successful personal injury lawyer must try the case when the insurance company is unreasonable Trial requires performance under stress. For performance at the highest level:

Prepare. First know the facts inside and out and know the law. Preparation is the foundation to successful performance. It is not the brightest who prevails it is the hardest worker. The lawyer who spends the time to internalize the facts and the law is the lawyer  who has the highest likelihood  of success. Put simply out work the opponent.

Trust Yourself. After thoroughly preparing trust yourself. Here it is essential to recognize you are ready to go. You know what you want to accomplish. You know you are able to get it done at a high level. Like all successful athletes and actors believe in yourself. This self belief results in confidence.

Accept Inability to Control Result. Recognize  the only thing you have control over is yourself. You have the ability to put the time in for preparation. You have the ability to methodically go about the trial or task. You do not have the ability to control the result. And the result may be bad. This must be realized and accepted. Doing this has a psychological or subconscious effect of relaxation and performance without the stress of having to win. This in turn allows performance to take place in the present where natural talent and instinct  emerge to allow high performance.

Visualize High Performance. Successful athletes and actors visualize the game or play before it happens. Often this is as simple as remembering past success and calling on the thought process that occurred. This is an imaginary dress rehearsal. When the event happens the successful athlete or actor is psychologically ready for high performance.

Remember Peaks and Valleys. The great coach John Wooden wrote a note to Rick Neuheisel when Neuheisal started as head football coach at UCLA. The note included the statement  “there will be peaks and valleys.” Great coaches remember the peaks and forget the valleys. No quality athlete or actor dwells on past failures. Forget about past failure and move on. This is what a successful trial lawyer must do.

Simplicity is Beauty. Remember to keep  presentation simple. When in doubt remember the rule “less is more.” Lawyers tend to talk too much and complicate the picture. This risks confusion with the  jury. Confusion with the jury is the darling of the defense lawyer’s nursery. Tell the jury what you want and why it matters. Once this is done move on. Remember  jurors want to hear what they need to know, but they do not want to hear what they do not need to know.

Never Give Up. There will be hard trial times as in “peaks and valleys.” The key is to never quit on yourself. The key is to continue to move ahead at the highest level possible. Remember you cannot control the outcome but you can control giving your best effort. Giving your best effort means living in the present at the highest level until the end.

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Interview With Simon H. Rifkind (Litigation Journal Sept. 1984).

Q. Judge there  has been a great deal of criticism of the lack of ability of lawyers to try a case. Is this criticism valid?

A. Well, I have seen trials conducted with extraordinary skill, and great dramatic effect, in the best style that one could possibly imagine. I have also seen trials that were bumbling and poorly done. That’s always been true… . I’m not aware of any decline in the capacity of trial lawyers.

Q. What are the requirements of a successful trial lawyer?

A. It is essential a trial lawyer come into the courtroom knowing his case.

A, He must know the facts.

B, He must know what he is trying to establish.

C, must have a strategy and a program for achieving it.

To illustrate when I was a Federal District Court Judge for the Southern District of New York I would occasionally have a lawyer come up and say: “Does your Honor want an opening statement?”

To me this is a foolish inquiry. It is like the producer of a play opening the curtain and saying: “Members of the audience, would you like a prologue or would you rather do without one?”

Q. So what would you do to become a quality trial lawyer?

A. Now of course experience helps. A good apprenticeship is helpful. Emulating a master of the art is always a useful thing, but I have always said you have to be yourself. I can’t overstate the point that every trial is theatre, every trial lawyer is a performer, and he must have his style. He has to be himself, natural to himself, compatible with his spirit, with his physical well being, with his appearance, with his dictation, with his style.

Q. Do you try a case before a jury different than a bench trial.

A. I do not distinguish between a jury trial and a non jury trial. I regard a non-jury trial as a trial before a one person jury.

You have an audience, you are writing a play in competition with another playwright who is trying to write a different play. It takes a lot of skill and effort, but it is theatre, there is no question about it. Any significant trial is a contest, and every contest involves a sense of emotional tension.

The only difference between a bench trial and a jury trial is in a bench trial we have a very experienced theatre goer. Nonetheless, a theatre goer with emotion and a heart waiting to decide for the better play.

(Edited by PAT).

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Here are preparation notes for cross examination of defense medical expert in a personal injury case:

Trauma. In trauma start with the injured person’s story of the impact and the energy exchanged from the impact. To evaluate traumatic injury begin with an understanding of the person going through 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-Here we look to the person before the traumatic event. Acute or pre existing conditions are taken into account. A traumatic event is more injury producing to a person with pre existing conditions such as degenerative disk disease. As we age we degenerate and this includes progression into degenerative disk disease. Making the person 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. In a motor vehicle collision three impacts occur: 1) The impact to the vehicles; here collision energy may be absorbed by the vehicles seen in vehicle damage. A heavy duty bumper allows the energy to continue with less dissipation into the people in the vehicle. 3) The third impact may be to the occupant’s internal organs striking the 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 a  traumatic injury case it is important to evaluate and understand the energy exchange, and the forces involved. Medical providers and juries relate to cases involving the exchange of significant energy or force. There is a common sense relationship between the exchange of significant force and injury. 

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.

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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 a trial lawyer it is essential for me to understand this reality. One way to do this is role reversal.

 Client. I listen when relating to my client. After listening and understanding I role reverse.  I see myself in my client’s shoes. This means all aspects of my client as well as his injury. I become my client and internalize how I feel in his skin.

Defense Lawyer. I also become the defense lawyer. This means having lots of cases as most insurance defense lawyers do. This means having to answer to home office. This means trying to win the case. What facts do I need to know? What facts are bad for me as the defense lawyer? What facts are good for me? How do I feel if  plaintiff is an honest likable person and his lawyer is likable?  How do I feel if  plaintiff and/or his lawyer are not likable?

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

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

Jurors.  I become the jurors. In jury selection I learn background facts of jurors that allow me to become the juror. What do I think of the case on first impression? What makes me want to root for plaintiff? What leads me to want to see plaintiff in a negative light

 Keep doing role reversal. I role reverse in my cases and in my personal life. Role reversal makes me a better lawyer and a better person.

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