May 16th, 2017

Advising Client

This is how we advise our client in a personal injury case: First, fair value cannot be obtained from the insurance company unless we can and will 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. The truth and nothing but the truth is our client’s story. 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 permanent pain our client is left with.

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 that 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 are likely to 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 is likely to 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 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.

        February 7th, 2013

        Medicare Set Aside Argument

        Recently 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 discuses 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

          Here 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).

            October 4th, 2012

            The Tao of Trial

            This post takes from my last three trials, Trial Lawyer’s College, The Tao Of Pooh, and The Tao of Physics.

            Preparation. In any phase of trial from voir dire to closing argument it is important to prepare. The great Clarence Darrrow memorized poems and quotes he planned on reciting during argument. It is foolhardy to go into any phase of trial without at least a preliminary outline on what needs to be covered. In my trials I write out my opening statement, my direct and cross examination questions and my closing argument.

            Plastic v. Spontaneous. Although having a planned presentation or preconceived idea of how a phase of trial will go makes sense, to blindly stick to the script is plastic. It is living outside the moment of trial. Most important sticking strictly to a prepared script results in trying the case without being able to move to where the jury is at the moment. To try the case where the jury is at the moment we must also be in the moment. This can only be done if we spontaneously live in the moment with the jury.

            The Way of the Tao. When we try the case in the way of the Tao we recognize the concept of change. We recognize the changes in a trial do not usually occur because of our plastic presentation. “[R]ather [the changes in trial occur] as a tendency which is innate in all things and situations.” F. Capra, The Tao of Physics at 116 (5th Ed. 2010). The moments ot the Tao are not forced, but occur 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.  For the Taoist, acting in harmony with the trial means acting spontaneously according to our true nature. This means trusting our intuitive intelligence which is innate and in the moment. We do not force ourselves. Rather we adapt our action 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 we discover our client’s story and show the story at trial. In each phase of  trial we have imaged the phase and prepared accordingly. Once we get to the phase we forget who we are (meaning any plastic presentation), live in the moment and believe in our innate intuitive nature. We include the jury as we live in the trial moment.

             

             

              August 30th, 2012

              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 9th, 2012

                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 15th, 2012

                  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.  We discuss the essence of our case especially the bad facts and problem areas. When this is done we reveal how we  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. We bound with jurors by listening and accepting. Listening and accepting leads to 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. And 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. To set anything in concrete is to have an agenda and this will kill us. We must be our natural self. We must move with the natural dynamic of the jury panel. When we do this by way of the Carl Rogers maxims we will be in jury selection at its best. The panel will likely respond favorably.

                    June 9th, 2012

                    Jury Selection

                    Just finished jury trial. Did OK. Below my latest on jury selection:

                    Introduction. “Get to talk to you three times: Now during jury selection, opening statement, and closing statement. But here in jury selection you do most of talking. What we are doing is hearing your personal feelings, experiences and outlooks to see if this is the right jury for you.”

                    Read Neutral Statement. “What comes to mind on hearing this statement?” (Ideally we are off and running after the first comment. Listen and encourage input. Keep the comment ball rolling). “Who agrees with Mr. Jones?”  “Who disagrees.” “Tell me more.” Thank panel member for input. Never cross examine or disagree.

                    Flow into Next Area of Discussion. Allow panel members to get into other topics on their own through input when good topic for discussion surfaces as conversation evolves. Be attentive to talking juror. Listen with appreciation.

                    Either or Questions. Have set of three either or questions to get conversation when never starts, dies, or running out of time. “Let’s do either or. I will read two statements and ask you to raise your number for the statement closest to how you feel.” 1) Lawsuits are at times necessary to receive fair compensation for a personal injury, or Lawsuits are a drain on society, bad things happen, move on and forget about personal injury. 2) There should be caps on damages above which jury cannot award, or Juries should be able to award what they collectively feel the case is worth. 3) If a person is injured his medical bills should be paid and his lost wages but that’s it, or If a person is injured he should also receive money for non economic damages he proves.

                    Note on the either or you will find jurors who do not agree with either proposition. These jurors are often the type who will be the presiding juror. Have discussion with jurors who will not go either way to hear their feelings and viewpoints.

                    Save Softball Question. Always end positive. This is done by way of softball feel good question involving everyone. “Not much time left. In one word tell us your most important thing in life. Then go to juror after juror ending voir dire with last answer.”