November 30th, 2020

Frontiers of Trauma-Crash Phases and Energy Exchange

Here are preparation notes for cross examination of defense medical expert in a 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 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-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 age we degenerate and this often includes progression into degenerative disk disease. 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. 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 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 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.

    October 30th, 2020

    Role Reversal

    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.

      October 10th, 2020

      Facts with Feeling

      “Then where Should I start?”

      “Start what, for Christ’s sake?”

      “Researching the history of the area. Of Derry Township.”

      ‘”Oh. Well. Start with the Fricke and the Michaud. They’re supposed to be the best.”

      “And after I read those-“

      Read them? Christ, no! Throw em in the wastebasket! That’s your first step. Then read Buddinger. Branson Buddinger was a damned sloppy researcher…but when it came to Derry his heart was in the right place. He got most of the facts wrong but he got them wrong with feeling.”

      Stephen King, It (1986).

       Although facts are important what matters to the jury is feeling. We must feel the case so the facts are felt.  To relate to the jury with feeling we begin by discovering the story of our client. To do this we emotionally connect with what our client has gone through and how this feels. Once we accomplish this and accomplishing this takes immersion into our client’s life we arrive at the emotional level of the case.

      This allows us to draw on our emotional experience and connect with the feelings of our client. When we feel with our client we have emotional honesty and convey this feeling to the jury. Through emotional connection we do this naturally without trying to sell the jury.We connect with the jury in a straight forward common sense manner, avoiding legalese and complexity. 

      The feeling of our client which we mirror flows into the courtroom. The jury relates to this feeling because it is honest and true to life. The facts become subservient to the feeling of the case. Our client has this feeling, we have this feeling and our feeling is given to the jury. When the jury accepts our feeling as its own the facts merge into our feeling.

        September 24th, 2020

        Success

        To laugh much.

        To win respect of intelligent persons, and the affection of children.

        To appreciate beauty.

        To find the best in others.

        To give one’s self.

        To leave the world a better place, whether by a healthy child, a garden patch, or a redeemed social condition.

        To have played and laughed with enthusiasm, and sung with exultation.

        To know even one life has breathed easier because you have lived-

        this is to have succeeded.

        Ralph Waldo Emerson

          September 9th, 2020

          Cross Exam of Defense Forensic Economist

          This cross examination discussion is from my cross examination notes in a survival action economic loss case.

          Forensic Economist. Agree you develop estimates for numerous variables that affect the recovery in tort cases. Agree in a survival action these variables are: 1) Base Earnings; 2) Earnings Growth Rate; 3) Fringe Benefits; 4)  Personal Consumption; and 5) Discount Rate.

          Base Earnings Rate. Defense forensic economists will start as low as possible. When they begin too low cover how the low base rate was arrived at and why a low base rate will lead to a lower economic loss amount. Demonstrate the rate of pay at which the economist should have started.

          Earnings Growth Rate. Another way the defense economist can understate economic damages is through the “earnings growth rate.” Earnings do not grow in a linear manner until retirement. Typically they peak about ten years before retirement. Here time must be spent with our economist to determine and understand a fair economic growth rate. When the defense economist fails to do this and understates the growth rate demonstrate in cross examination this leads to an understatement of economic damages.

          Fringe Benefits. The defense economist will start with a low base income rate and fail to add fringe benefits. “Data from the last few decades reveals that fringe benefits have increased significantly as a percentage of overall compensation. These benefits now account for almost 30%… of total compensation. ,,, Damage calculations must therefore include a valuation of fringe benefits.” David Gordon, A Forensic Economics Primer (Journal of Comprehensive Research).

          Consumption. The defense economist may try to overstate personal consumption. This is because the amount of personal consumption is deducted from lifetime earnings before the discount rate is used to arrive at net economic loss. Future earnings of the deceased are adjusted for his consumption. See id. at 44-45. Consumption covers expenditures on goods and services, but does not include joint family expenditures. When possible the economist will look to actual expenses, but this does not work in the case of a young decedent. Have an understanding of how your economist is addressing personal consumption, and make sure it is solid. Hold the defendant economist to a similar analysis to prevent getting away with overstating consumption which results in understating net economic loss.

          Discount Rate. The United States Supreme Court in Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523 (1983) addressed the issue of the proper discount rate in a personal injury case involving future economic loss. The Court reasoned in all personal injury cases involving future economic loss “it is reasonable to suppose that interest may safely be earned upon the amount that is awarded. Id. at 537. Thus, the ascertained future benefits should be discounted. The Court pointed out the discount rate should be one earned on the best and safest investments. Id. The injured plaintiff is “entitled to a risk-free stream of future income to replace his lost wages; therefore, the discount rate should not reflect the market’s premium for investors who are willing to accept some risk of default.” Id. The Court concluded the amount of future economic loss must encompass the amount the injured plaintiff would have earned during each year he could have worked but for his injury and the appropriate discount rate “reflecting the safest available investment.” Id. at 538. Have  the Jones case when cross examining the defense economic expert. This is because the defense expert will likely use a high discount rate arrived at at least partially from stock market return rates. Remember, the higher the discount rate the lower the net economic loss amount. The use of the high discount rate deflates economic loss contrary to our Supreme Court.

            August 3rd, 2020

            The Tao of Trial (Spontaneity)

            For connection with the jury I follow the Tao of Trial.

            Preparation. In any phase of trial from voir dire to closing argument I prepare. Clarence Darrow memorized poems and quotes he planned on reciting during trial. I write out my opening statement, my direct and cross examination questions and my closing argument. I go into every phase of trial with at least an outline on what needs to be covered.

            Rehearsed v. Spontaneous. Although I have a planned presentation for every phase of trial, I move through the trial with mindfulness at every moment of trial. This allows me to be with the jury in the moment, regardless of  preparation.

            The Way of the Tao. Trying  the case in the way of the Tao is to recognize the concept of change. Change in trial does not usually occur because of my prepared presentation.  “Change is innate in all things and situations.” F. Capra, The Tao of Physics at 116 (5th Ed. 2010). Change occurs naturally and spontaneously. Id. “Spontaneity is the Tao’s principle of action, and since human conduct should be modeled on the operation of the Tao, spontaneity should also be characteristic of all human actions.” Id. 

            Acting in Harmony with the Trial.  I act spontaneously according to my true nature. This means trusting my intuitive intelligence which is innate and in the moment. Rather than force myself, I adapt to the trial moment. “In the words of Huai Nan Tzu, those who follow the natural order flow in the current of the Tao.” Id. at 117.

            Prepare and Forget.  To try the case at the highest level I discover our client’s story and show the story at trial. In each phase of  trial I have imaged the phase and prepared accordingly. Once I get to the phase I forget my planned presentation, I live in the moment and trust my intuitive spontaneous nature. I include the jury as we live together in the trial moment.

             

             

              July 27th, 2020

              Listen

              It is easy for me to talk. It is easy to think when another is talking as I prepare to talk. My tendency is to think and talk, think and talk.

              It is difficult to listen. It is difficult to internalize what a person is discussing without thinking ahead at the expense of listening. 

              Listen is defined as: to hear something with thoughtful attention : give consideration listen to a plea. (Webster). “Thoughtful attention” is the key to what it means to listen. “Thoughtful attention” cannot be done without thinking only about the message. As the definition says when one is listening he is giving the message “thoughtful attention.”

              I now try listen. This means I concentrate on listening. Listening changes how I process. This is because I hear the message with “thoughtful attention.” Two things happen: I internalize the message without filtering it with thoughts on response; and, the speaker intuitively realizes this and infers I care.

                July 11th, 2020

                Defending the Deposition of Developmentally Disabled Client

                Representing a developmentally disabled (DD)  client brings considerations beyond what we typically encounter. Here is how I address the deposition without first getting a protective order.

                DD Defined. RCW 71A.10.020(4)  provides in part: “Developmental disability” means a disability attributable to an intellectual disability…[which] originates before the individual attains age eighteen, which has continued or can be expected to continue indefinitely, and which constitutes a substantial limitation to the individual.”

                Competent to Testify. The DD client is competent to testify so long as he is capable of speaking the truth, receiving an accurate impression of it, has sufficient memory to retain it, has the capacity to express it in words, and can understand simple questions about it. Understanding and answering simple questions is key when the DD client must be examined.  In a deposition we have competing issues-the right to conduct legitimate discovery verses the right to protect our DD client from discovery abuse.

                Witness Preparation. For the DD client  preparation is minimal. First hear the key elements of the story. Do not rehash the story. Tell the DD client the lawyer on the other side will ask questions about what happened: “Listen to the question.”  “Answer the question.” “Always tell the truth.”

                Open and Close Door. We must allow opposition to engage in legitimate discovery. We must leave the door open so long as this is occurring. Once an area has been explored, we are confident the record reveals this, and further inquiry is oppressive, I close the door as follows:

                CR 26 (i) Conference. With the DD client out of the room I begin a separate record: “Pursuant to Cr 26(i) counsel must confer before the court will entertain any motion or objection regarding rules 26 through 37. This is a CR 26(i) conference.”

                Court has Discretion to Protect. “While [DD Client] is competent to testify he is developmentally disabled. Pursuant to CR 27(a)(2) the court shall make such order as appropriate for the protection of the developmentally disabled party. Additionally as his attorney I have an obligation to protect [my client] from discovery abuse.”

                CR 30(d). “An instruction not to answer is proper when made pursuant to CR 30(d).” “Pursuant to CR 30(d), at any time during the taking of a deposition upon a showing the examination is being conducted in such a manner as to unreasonably annoy, embarrass, or harass the party the court may order the deposition cease.” “Upon demand of the objecting party the deposition shall be suspended for the time necessary to make a CR 26(c) protective order motion.”

                CR 26(c). “The court may make an appropriate order to protect a party from annoyance, embarrassment, or oppression. At this point in the deposition further questions concerning [area where we are closing door] constitute oppression [of DD Client].”

                Instructing Not to Answer.  “I am instructing you [my client] will not  answer further questions (set forth area[s] where you are closing the door as you are confident the judge will grant a protective order prohibiting further discovery). I am doing this outside of his presence because I do not want to chill further legitimate discovery.”

                Your Choice Counsel. “Counsel if you chose we will proceed to court now to discuss a protective order. Alternatively, continue to explore other areas of discovery. If you deem it necessary to seek further discovery into the area I am instructing my client not to answer we can cooperate on scheduling a protective order hearing at a later date.”

                  June 21st, 2020

                  What is Chance

                  At moments everything is clear, and when that happens we see that the world is barely there at all. It’s a perfectly balanced mechanism of shouts and echoes pretending to be wheels of cogs, a dream clock chiming beneath a mystery-glass we call life.

                  Let’s concede how our lives are jostled and spun around, that nothing is fixed, that even the ground we stand on is in motion. Underneith us there is only instability. Beyond us, there is only chance.

                  (Pieced together from  Stephen King and Jon Mooallem).

                    June 14th, 2020

                    Write and Speak with Conviction

                    Starting as a young lawyer and continuing  I consult Professors Strunk and White, The Elements of Style, for speaking and writing with power and conviction. Below are maxims from their book.

                    Place Yourself in the Background. According to professors Strunk and White good writing (and speaking) comes naturally without trying to effect a certain mood or temper.  Write and speak so the recipient is drawn to what you are writing or talking about rather than your emotional take on the subject. In this way the recipient is drawn to the substance.   If the substance is there the recipient will have an emotional response. 

                    Write and Speak Naturally.  Be yourself. Forget about imitating someone else.  Admittedly, we are all imitators and have been since babies.  The key is draw on our experiences rather than a copy of the source. This allows the message to be our message which is authentic.

                    Never Overwrite or Overstate. Stick to the facts without gilding or adding. When we overstate the reader or listener knows. The message is processed in a negative way like this person is trying to sell me something.

                    Write and Speak with Nouns and Verbs. Eliminate adjectives and adverbs. As stated by professors Strunk and White: “The adjective hasn’t been built that can pull a weak or inaccurate noun out of a tight place.” It is nouns and verbs, not their assistants, that give good writing and speaking its toughness and color.

                    Avoid the Use of Qualifiers. This means words such as rather, very, little, pretty, and probably to name a few. As stated by the professors: “These are the leeches that infest the pond of good prose, sucking the blood of words.” The use of the adjective “little” is particularly debilitating. “Little” is a badge of a weak speaker or writer.  The same is true with other qualifiers.

                    Active Voice. Speak and write in the active voice whenever you have a choice. The active voice “I will speak and write with conviction” has power. The passive voice conveys weakness: “I will try to speak or write with conviction.”

                    Write and Speak at High Level. When speaking use the ing.  Rather than “I’m thinken about doen it, ” say I am thinking about doing it.” This elevates you  to to a speaker with more education in the listener’s mind. The listener consciously and subconsciously hears your messgae as more educated. Eliminate slang in writing and speaking. This puts you at a higher level.

                    Make the Point and Stop. As stated by our professors “do not explain too much.”  When saying too much adverbs and adjectives creep into speaking or writing. This makes the message weak rather than strong. Shakespeare says: ” The lady doth protest  too much me thinks.”

                    Avoid Fancy Words. Speak and write like you are talking to a high school student. Avoid words of  trade that only fellow trade members know.  Avoid foreign language;  it sounds like you are trying to impress;  it is not impressive to deliver a message the recipient misses.

                    Remember John Wayne’s Maxim:  “Speak slow, speak low, and don’t  say too much.”