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 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.”

        February 9th, 2020

        Jury Selection (With Help from Carl Rogers)

        These are jury selection thoughts thoughts based on Carl Rogers, On Becoming a Person (1961).

        In my relationships with persons I have found that it does not help… to act as though I were something that I am not.”

        The first step in becoming one with the jury is to be real. Being real is being honest. Honest about the bad as well as the good.  Discuss the essence of the case especially the bad facts and problem areas. When this is done reveal how you  feel. Jurors intuitively recognize this and respond by revealing feelings.

        “I have found it of enormous value when I can permit myself to understand another person.”

        Carl Rogers reveals the essence of  jury selection with this quote. Connect with jurors by listening and accepting. Listening and accepting leads to connecting and bonding. Understanding must be unconditional-even when we do not agree. We can understand without agreement. When we have understanding we have a bound.

        “I have found it highly rewarding when I accept another person.”

        Here Rogers tells us we benefit by accepting unconditionally the members of the jury panel. The panel has bounded to some extent before we meet in jury selection. They have accepted each other at various levels. They know when we accept them. When we accept them when we are not in agreement they will more readily accept us when they are not initially in agreement. In essence they accept the possibility we may be right. We may be the exception to their initial reaction. Every rule has an exception.

        “The facts are friendly.”

        Stated another way the truth is friendly. We never forget this maxim in jury selection. The truth rings with authenticity, and jurors know it. Jurors understand problems and bad facts when we deal with them openly seeking their input. We have bonded and we have to accomplish fairness together. To accomplish fairness we must together face the hurdles.

        “Life at its best, is a flowing, changing process in which nothing is fixed.”

        To relax and be fluid is essential, as we can flow with the jury panel. To do this nothing can be fixed.  We are natural and spontaneous. We move with the dynamic of the jury panel. The panel will respond favorably.

          September 8th, 2019

          Witness Show and Tell

          Facts are subjective or objective. “Both things and events are objective facts. They exist in the public domain and are in principle accessible to all.”  D. Q. McInerny, Being Logical (Random House paperback 2005) at 5. But there is a difference between a subjective fact and an objective fact. A headache is an example of a subjective fact. Id. at 6. The headache sufferer has direct evidence of the headache. Id. When it is another person who is hearing about the headache it can only be indirectly established. “Establishing the reality of subjective facts depends entirely on the trustworthiness of those who claim to be experiencing them.” Id. When the fact is an existing thing to which the listener has access to view it becomes objective and we need not “trust” the speaker.

          What about a fact demonstrated through show and tell. When we show and tell we eliminate communication problems that occur when our spoken word is not interpreted in the way we mean to convey. When we show and tell the listener sees our subjective fact closer to an objective fact. This is because our listener is given visual cues about the fact.

          When we have our witness at trial show and tell what has occurred rather than tell what has occurred the facts rise to a higher level. This is because the jury is able to experience the facts rather than just hear the facts. The facts come to life through the witness as she speaks in the present tense and recreates the event by showing and telling what occurred. 

          This may be done the traditional way from the witness stand. If movement is helpful the witness may be allowed to go into the well of the courtroom. There witness explains the scene to the jury. She may use props such as council table, chair or books to set the scene. She then relives the scene in a show and tell fashion.  As the saying goes seeing is believing and the jury is allowed to see through witness show and tell.

            August 5th, 2018

            Walk Toward Fear

            We all have fear. Fear of the unknown. Fear of failure. Fear of success. To have fear is to be alive. To have fear is to understand risk. To have fear is to know something is at stake.

            As a trial lawyer I have fear. Most trial lawyers have fear, especially going into trial. Accept fear as a good thing. When we lose fear we lose a valuable emotion. An emotion that makes us better. Better assuming we continue to walk into our fear.

            While at Trial Lawyers College I wrote this poem for my son:

            Walk Toward Fear

            Is not fear my friend.

            For without fear my life should end.

            All that is unknown brings fear.

            Facing fear makes the unknown clear.

            The fear of failure causes stagnation.

            But to venture forward brings origination.

            Nothing new happens without walking toward fear.

            And growth comes from moving near.

            So embrace fear as a gift.

            A gift that gives life its lift.

             

              June 9th, 2017

              Talking to the Subconscious Mind

              Decisions are made using our conscious mind and our subconscious mind. Emotional decisions are made at the subconscious level, then justified by the conscious mind. To ignore the subconscious mind when working with others on making decisions is to ignore the decision making part of the group mind. 

              In Medical Hypnotherapy (Peaceful Planet Press 2007) Tim Zimmerman Sierra outlines nine rules for effective communication  with the subconscious:

              1. Speak in Positive Terms.  This is because the subconscious does not register a negative.  Rather it forms pictures and responds to imagery. Although we consciously understand a negative, our subconscious mind only understands the picture formed. Thus, when speaking in negative terms the subconscious mind only registers a picture and responds to the imagery of the picture. For instance if a golfer tells himself “I don’t want to hit my ball into the water” the subconscious mind pictures the water and images hitting the ball into the water. Id. at 111.

              2. Speak in the Present Tense. The subconscious mind is effectively moved if the goal is occurring now.  Mr. Zimmerman Sierra says word  therapeutic suggestions so that the client sees the desired goal happening now. 

              3. Paint Pictures. Here we tell our story in a descriptive way calling into play the listeners past similar experience. Then her subconscious mind accesses her picture of a similar experience as she follows us based on her imagery.

              4. Give a Reason. The suggestion is more likely to be accepted by the critical faculty of the conscious mind “and passed to the subconscious mind when it is linked to something that seems logical.” Id. at 112. “The subconscious is constantly making associations, and is primarily interested in two types of information-meaning (A means B) and causality (B occurred because of A). Therefore, you give the subconscious what it is looking for by using reasons in your suggestions.”

              5.  If too great, make it incremental. To be effective our suggestion must be believable. Thus, if the suggestion seems too big or too far off use incremental suggestion language that indicates change over time: “more and more now,” “every day and in every way,” “becoming,” “growing,” and “greater.”

              6. Include Timing. Avoid words like “will,” “soon,” and “tomorrow.” These future words are meaningless to the subconscious.  This is because to the subconscious mind the only time is now in the present moment. “Whenever possible, include specific information about when or under what circumstances the… [suggestion takes place].” Id. at 114.

              7.  Suggest Action.  Here we are instructed to suggest to our listener’s subconscious- take action to accomplish what needs to happen. “When suggesting  action, be sure to connect taking the action with achieving the goal… .” Id. 

              8. Use Positive Emotions. Strong emotional words help to open the conscious mind and lead to a more powerful impression on the subconscious. Thus, we are to “[u]se words that generate compelling positive images.” Id. at 114. This creates positive imagery that is “emotionalized.” Id.

              9.  Specific and Short. Use common easily understood language. Be specific and clear on what the goal is. Refrain from language that is too general. Rather be specific and avoid generalizations. 

                May 16th, 2017

                Advising Client

                This is how we advise our client in a personal injury case: First, to get fair value  from the insurance company we must be willing and able to try the case.  Second, all trials are plays, and the theatrical genre that fits a personal injury case is the Greek Tragedy. Third, the formula for successful tragedy is: a hero, who sustains adversity, does everything in his power to overcome the adversity, but fails to overcome the adversity.

                Once this is understood our client is advised to do the following:

                Always Tell the Truth. We never deviate from the truth. Any detour from the truth is death to our case. So rule number one is tell the truth. Now when our client tells the truth he does so in strong language. This means nouns and verbs. Forget adjectives and adverbs. Forget weak phrases and words like “pretty sure,” “I think,” “maybe,” “little.” Just tell it like it is from the heart.

                Follow Doctors Orders. The adversity our client is dealing with is his injury. For his injury he needs to go to his doctor and listen to his doctor. If our client asks what he should do for his injury we respond do what the doctor orders. If the  doctor says physical therapy go to physical therapy. If the doctor says get an MRI then get an MRI. If our client wants to try other treatment like chiropractic then he goes to his doctor and his doctor directs chiropractic treatment.

                Overcome Adversity. We push our client to move through the treatment steps. We push our client to do everything possible to recover. On work we have our client take direction from the doctor. Whenever possible keep working. Working gives our client needed income and allows for a positive self image which means faster recovery. This assumes work is not aggravating the injury which is where the doctor needs to weigh in. Again we have our client listen to his doctor.

                Activities. As with work we advise our client to get back into his pre-injury activities as soon as possible. Again our client needs to take direction from his doctor. Activities are an important barometer on recovery. If our client cannot get back to his pre-injury level of activities he has a permanent injury. Often he has residual strength deficits and/or range of motion limitations which prevent a resumption of pre-injury activity level. We  address any permanent pain, suffering, disability and loss of enjoyment of our client.

                Making the Case. Once treatment is complete we have our case. Assuming our client has followed our advise and done everything he can to overcome his injuries he need only tell it like it is from the heart. It sounds simple and it is as the truth rings with the authenticity of a quality case.

                 

                  March 26th, 2017

                  Learning from Thomas Merton

                  Thomas Merton in THE WAY OF CHUNG TZU discusses the classic Ju philosophy of Confucius. A philosophy “built on basic social relationships and obligations that are essential to a humane life and … develop the human potentialities of each person in his relationship to others.” Merton, THE WAY OF CHUNG TZU at 17-18 (New Directions 1965).

                  By fulfilling the commands of nature which are commands of love we develop an “inner [subconscious] potential for love, understanding, reverence and wisdom.” Id. at 18. Here we live at the highest level. (According to Merton, Confucius claims it took until he was 70 to reach this level).

                  When we apply Ju philosophy to the practice of law we practice law at the highest level.  Merton outlines three steps to accomplish this:

                  Compassion. We must have a “compassionate and devoted love, charged with deep empathy and sincerity, that enables [us] to identify with the troubles and joys of others as if they were [our] own.” Id. As lawyers this means we must have a compassionate and devoted love charged with sincerity and empathy for our client and our jury. We must feel our client’s plight and have a feeling of love and acceptance for the jury panel. This requires internalizing compassion into our subconscious mind before the trial begins.

                  Sense of Justice. We must have a sense of justice, responsibility, duty and obligation to others and society. As lawyers this means we stand for fairness for our client. When we can get fairness through negotiation we negotiate. When we cannot get fairness through negotiation we try the case. Before trial we must internalize the reality that fairness for our client can only be accomplished through trial. This must be seeded into our subconscious mind so it is our natural state or presence.

                  Disinterest. We must be completely disinterested in ourself. “The mark of the ‘Noble Minded Man’ is that he does not do things simply because they are pleasing or profitable to himself, but because they flow from an unconditional moral imperative.” Id. This moral imperative is justice which, as I interpret Merton, is good in itself. “Hence, anyone who is guided  by the profit motive … is not capable of [being genuine].” Id.

                  If I am at “the Merton level” in a jury trial good things will happen. I am before the jury with deeply seeded love in my heart. I love my client, and I go into voir dire with love and acceptance for the panel. My mindset/feeling is recognized by the panel as acceptance. Since I am in trial only because justice demands it, my words and body language demonstrate my pursuit of fairness. Being disinterested the panel recognizes my pursuit of justice as pure rather than tainted by a profit or a for me motive. The panel will respond favorably as jury members also desire fairness and they have the ability to ensure it with their verdict.

                    March 27th, 2013

                    Opening Statement-Discover the Story

                     

                    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:

                    Listen. We begin by listening to our client. We encourage her to show us her story in the first person present tense. We guard against  projecting our story into our client’s story, by listening and identifying with our client’s emotions. We  emotionally relate to our client and this aura will be present at trial. 

                    Role Reverse. 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 takes us to a deeper 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 ScenesSeeing 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.