September 22nd, 2010

Thou Shall Kick Thy Opponents Ass With Professionalism and Courtesy

As a trial lawyer representing injured people I must file cases more often than not to get fairness. In today’s economic climate many insurance companies are giving low ball settlement offers which a weak lawyer who cannot try a case will convince his client to accept or a client in economic hard times will take. Since I have an obligation to get fairness for my client I proceed to trial rather then take the low ball offer.

This means I regularly work against lawyers for the insurance companies. I play hard, I play fair, and I play to the end. Although I play to win, I treat my opponent with respect and decency. This means I have meaningful conversations with the other lawyer. I listen to the other lawyer. I cooperate  with scheduling with the other lawyer. And when I do well I never act like I beat the other lawyer.

This I believe is the mark of a true professional. And you know when I am decent to the other lawyer she is decent to me. We both will argue our case but this can be and should be done without getting personal, petty, or nasty. I find treating the other lawyer with professionalism and courtesy makes me feel better and I do just as well if not better for my client.

So when when you do not have much to say, and the going is tough, as your opponent is making hay, just remember at times it can be rough.  Accept these times and remember your time will come. Continue to  prepare, believe in yourself, accept bad things can happen,  give your best effort, and never, never lose your professionalism.

    September 15th, 2010

    Lessons from a Blue Angel

    Recently I heard a former Blue Angel, Rear Admiral William Newman, speak. In 1978/79 Admiral Newman was the Commanding Officer/Flight Leader of the Blue Angels. The leader is called “The Boss.” He is responsible for calling by radio the flight moves. This is done as the planes are flying next to each other at over 450 mph.

    I took some notes and below apply them to the practice of law. I think they also apply to other professions or endeavors:

    Have a Set Method. When flying next to each other at over 450 mph and changing the formation without changing the space between planes the Blue Angels must have a set method. To not is to risk a fatal accident.

    Working a legal case involves legal life or death to the client. Years of experience has taught me to have a set method. This means all cases are taken in the same way. All discovery is done by a set method  with client involvement in the same way in every case. Trial preparation is done the same way. I have found by applying a set method without deviation mistakes rarely happen. We are thoroughly prepared and ready to fly into trial in an organized formation.

    Concentration. This is essential for the Blue Angels. Without concentration mistakes happen. The same is true in law. When I go to work I am well rested and focused on the task at hand. When I am dealing with a client  the client is first and foremost in my mind. I listen. This allows me to internalize key facts and  the nature and extent of my client’s injuries. This results in legal representation at the highest level.

    Trust. With the Blue Angels there is trust between the pilots. They trust the other pilots are performing at their highest level. This gives them confidence in relying on one another as they travel at high speeds a few feet from each another.

    With my staff and me there is trust. They take their jobs seriously. They come to work focused and prepared. They work at their highest level. They know I am doing the same. There is also trust between our client, and my staff and me. We know our client takes her case seriously. She keeps appointments and deadlines. She is honest and forthright. She knows we are dedicated to her case and trusts us. Trust allows us to work together with confidence.

    Keep the Team Together. When flying next to each other at 450 mph there can be no dissension. There must be team spirit. It is the job of the Blue Angel “Boss” to keep the team together.

    This is my job as “The Boss” in my law practice. Keeping the team together is done through example, praise, and professional camaraderie. All staff are treated equally. Although I am the boss, my staff knows I respect them, value them, and listen to them. They know we are a team. We work together to give the highest level of leg

    Continue to Develop. Although the Blue Angel shows have similarities to past years, and there is an established tradition, they continue to develop. Planes change with technology. Nothing remains stagnant.

    This is true in my law practice. My staff and I continually up date our technology. We continually review our systems and make improvements to stay with technology and  new developments.  By continuing to develop we continue to fly at our highest level.

      August 25th, 2010

      A Facial Scar Injury

      Recently I negotiated a personal injury settlement where my minor four year old client sustained facial scars from a dog attack. The following passage on Metonymy helped illustrate how important our face is and the significance of  facial scars. (A metonymy is using one entity in referring to another that is related. For example:  “We need a good glove.” For we need a good fielder.

      The metonymy functions actively in our culture. The tradition of portraits, in both painting and photography, is based on it. If you ask me to show you a picture of my son and I show you a picture of his face, you will be satisfied. You will consider yourself to have seen a picture of him. But if I show you a picture of his body without his face, you will consider it strange and will not be satisfied. You might even ask, “But what does he look like?” Thus the metonymy THE FACE FOR THE PERSON is not merely a matter of language. In our culture  we look at a person’s face-rather then his posture or his movements-to get our basic information about what the person is like. We function in terms of metonymy when we perceive the person in terms of his face and act on those perceptions.

      Lakoff & Johnson, Metaphors We Live By, (Chicago Press 1980).

       

        July 5th, 2010

        Closing Arguments-The Road to Justice

        Ladies and Gentlemen in jury selection we discussed justice. We discussed how in our American system of justice, in a case involving personal injury, justice is provided by way of monetary compensation.

        Now ladies and gentlemen there are many roads to justice in King County. There are small roads leading to various municipal courts in the county. There are larger roads leading to our county district courts. But the road that leads to the King County Superior Court is a major interstate highway.

        The road to justice to the King County Superior is traveled by people who seek the highest form of justice in King County. There is only one court that dispenses the highest form of justice in King County. That court, ladies and gentlemen, is the King County Superior Court.

        And you ladies and gentlemen are a King County Superior Court Jury. Your voice defines justice in King County.  The road to justice in King County ends with you.

          July 1st, 2010

          Closing Arguments- The Ronald Reagan

          A couple of jury trials ago when I was preparing for closing argument my sense on the case was defendant had used several nonsense defenses. As I racked my brain for a phrase that would represent  what I believed were nonsense defenses I remembered a Ronald Reagan /Jimmy Carter debate where Reagan used the phrase “There he goes again” to refer to what he believed were nonsense arguments by Carter. While I am not a Reagan fan I like the phrase. This gave birth to what I now call the Ronald Reagan:

          Ladies and gentlemen last night when reviewing our trial and thinking of defendant’s arguments [set forth summary of arguments] I was reminded of a Reagan/ Carter debate years ago. In the debate Ronald Reagan used the phrase “There he goes again” to illustrate  Carter arguments Reagan considered  nonsense.

          Well ladies and gentlemen we have “There he goes again” arguments in our trial. These arguments don’t make sense to me, and I know you have been paying attention during the  trial, so I believe  the defense arguments don’t make sense to you either. That’s because they are “There he goes again” arguments.

          Now you will soon be retiring into the jury room  to discuss the case.  And when you are in the jury room remember the “There he goes again” defense arguments. And remind each other that is a “There he goes again” argument. And we know what to do with  “There he goes again” arguments. Send the “There he goes again” arguments of defense to defeat.

            June 28th, 2010

            Closing Arguments-Unaccountability Lane

            A few jury trials ago I was faced with an empty chair defense in an automobile collision case. The defense was an (empty chair) driver negligently waived defendant to cross two lanes of traffic causing or contributing to the collision. The verdict form allowed by the court had a percentage of negligence line for the empty chair. The need to deal with this defense gave rise to “Unaccountability Lane.”

            Now ladies and gentlemen we come to jury instruction number 16. This is the waiving driver instruction. Ladies and gentlemen this is the instruction defense wants you to use to find defendant unaccountable for it’s negligence.

            Well ladies and gentlemen I looked on a road map of Snohomish County last night and you know there is no “Unaccountability Lane” in Snohomish County. That’s because in Snohomish County we are accountable for our actions.

            So ladies and gentlemen you know what to do with the waiving driver defense- waive it out of Snohomish County because we have no Unaccountability Lane in Snohomish County. In fact ladies and gentlemen the argument needs to be waived out of state, because in Washington just like Snohomish County we are accountable for our negligence.

              June 24th, 2010

              Jury Selection

              Jury Selection Notes:

              Big Picture. Encourage jurors to be self selecting.  Conduct selection in an open way where a juror will self elect in or out. Inclusiveness is the goal.  Build on “the community” the jurors have established. Never cross examine a juror. Disagreeing is adversarial  and alienates fellow jurors.

              Demeanor.  Zen- like (in the present).  No fear.  No notes except juror names. Address by name if judge allows. Friendly, accepting, encouraging, rewarding openness and candor, no matter what is said.  Find common ground and roll.  Once connect with a juror come back to this juror when process bogs down or stalls.

              Beginning.  Introduce self and client.  Consider reading the common case instruction.  Discuss.  “What we are doing is discussion of life experiences, thoughts and feelings to determine if this is right jury for you.”

              Topics for Discussion: 1) Too many lawsuits v. Verdict can lead to something good beyond compensation to injured plaintiff;  2) “Do you feel monetary damages measure responsibility for negligence;” or  “Do you feel sometimes only way to establish justice is through monetary compensation;”  3) What do you feel “about caps on damages.”  “In Washington we do not have caps on damages but judge has the power  to knock damages back.” (On “but money cannot eliminate the injury.”  I agree.  “Money cannot change reality of injury and [client] would pay [amount of money] not to have injury).”

              First Session: Establish we are involved in an important case;  Justice = monetary compensation;  “What do you feel about non economic damages.” ( McDonalds’- Will never change jurors who are outraged by it.  Remember there are some who know facts, and it is phony to agree  McDonalds is a frivolous lawsuit);  “Anybody agree a person should  be held accountable when they violate a rule that results in injury to another.” (Roll with discussion).

              Second Session:  Discuss case concerns: Confess concern about [specific problem in case]. Roll with discussion.  Consider introducing themes:

              “MY JOB  YOUR JOB.  “In this case what is my job and what is your job”?  (My job is to bring legitimate cases to get justice and your job is to provide fair compensation in legitimate cases).

              ACCOUNTABILITY.  “How important is it to take responsibility for our actions/inactions;”  “How do you feel about people who shirk their responsibility.”

              SAFETY.  “Would you sue your [landlord] if you were injured as a result of [a defect in rental].”  “What do you feel about the saying “It is better to be safe then sorry.”

              MOST IMPORTANT THINGS. “What are the Most Important Things in Life.” (Roll with discussion).

              Challenge for Cause. (Determine how judge wants cause challenges addressed).  With bias juror:  1) Commend openness;  2) Lock in bias;  3) Establish it would be better if you sat on different case given your feelings. “Given your feelings, and considering [client who  has these issues in  his case] do you agree it is fairer to all parties if you you do not sit on this case.”  (If cause challenge is unsuccessful move on as juror is now known).

              Bennett’s Jury Selection Rules. Practice 90% listen 10% talk;  No legalese (be a normal guy, not a pompous ass);  Let topic die its natural death (jury kills not me);  Keep conversation flowing and listen, listen, listen;  Use jurors to flow from one to the other;  Never select alone (use simple rating  of +/?/-);  Talk to all and save a decent question/theme;  Open ended non lawyer  speak “How do you feel about…” questions;

              PAT. Be prepared.  Trust instincts and  knowledge of the case.  Accept the possibility of failure.  Stay in the moment.  And listen, listen, listen….

                June 21st, 2010

                Thou Shalt Not Let Thy Client Fly the Plane

                In my last three “How I Practice Law” posts I used commandment titles. These titles reflect my personal maxims or commandments to myself. I am not trying to come off as being judgmental-as in if you do not follow the maxims you are doing something wrong. My maxims are personal to how I practice law. They may or may not be helpful to you. With that said the maxim below addresses what I believe is an important attorney client consideration.

                The great Wall Street lawyer Simon Rifkind says there are two types of lawyers. The first type listens to the client, and takes case direction from the client. This lawyer is an order taker who lets the client fly the plane. The second type listens to the client, and then directs the case. This lawyer is a professional who believes in himself and flies the plane. I practice law the second way.

                My client and I establish this understanding at the first meeting.  We communicate on a regular basis. My client knows where we are going, but my client also knows I am leading the way.

                This is especially important at the time of trial. Although my client is at counsel table, he is not allowed to get over involved in trial tactics.  Giving input during  jury selection is fine, but this is done in a way it is clear the client is not calling the shots. During trial, passing an occasional note is ok, but not more then that.

                When the the jury sees a client trying to direct the case, he comes off as too involved in the mechanics of the case.  Recall, the plaintiff/hero is dedicated to recovery for his injuries. This is his focus.  To be too involved in case tactics is off plot. A client who appears too involved at trial will focus the jury on this off plot dimension of the client. The over involved client will lose his case.

                  June 16th, 2010

                  Thou Shall Know Thy Client

                  Our client is the most important element of a personal injury case. As we discussed in “Characteristics of the Personal Injury Plaintiff/Hero” a quality plaintiff is true to life, without pretense, and honest. When we present the case to the jury we must intellectually and emotionally understand our client. This allows us to sincerely convey the essence of our client and the nature of her injury.

                  The first step in being able to do this is to know our client. This begins at the first meeting. Here it is essential to listen. Lawyers have a tendency to do the talking rather then the listening. Listening sends a message to our client we care. Listening allows us to grasp the facts from our client’s perspective. Listening gives our client confidence, as it is human nature to think one who listens is intelligent.

                  I  meet with my client at  the first meeting when she signs the fee agreement.  I get the facts and feelings on: education, family and employment background; mechanism of injury; detailed description of injury; initial pain and disability components of injury; impact of injury on activities;  impact of injury on employment; medical providers; and, insurance information. Next  we agree on a plan of action.  The client will attack her injury through medical treatment. I will take the burden of dealing with her insurer and third party insurer. In this way we begin our bond.

                  At subsequent steps in the case, I meet with my client. We do the interrogatories together. We set forth the facts in power language using nouns and verbs. We eliminate modifiers-adjectives and adverbs- that suck the blood out of the English language. We continue to bond. I internalize the case deeper into my conscious and subconscious mind.

                  Prior to my client’s deposition we meet again with emphasis on the on plot aspects of the case: honest true to life presentation of background, mechanism of injury, injury, attempt to dig out of injury through treatment, and impact of injury. This includes facts and feelings on economic loss, disability (range of motion and strength deficits), impact on activities, and pain. We discuss relating naturally with the defense lawyer with candor and decency. In this way the defense recognizes the jury will like my client. (This maximizes settlement value).

                  In all client meetings I am focused only on my client. I come to know my client. This allows us to form a solid attorney client bond and trust. This allows us to communicate at our highest level with comfort and ease . This allows us to get into our emotional unconscious minds so jurors have a high likelihood of relating to us with their emotional unconscious minds.

                    June 11th, 2010

                    Thou Shalt Not Use Legalese

                    This is my second rule under the topic “How I Practice Law.”  Legalese is “language  used by lawyers, and in legal documents, which is difficult for ordinary people to  understand.” Cambridge Online Dictionary.  As we see from the definition legalese is both spoken and written. The key is for it to make no sense to a normal person regardless of it being spoken or written.

                    When a lawyer finishes law school he has been exposed to legal language for three years. He hears it from his professors. He reads it in cases and in laws. He is trained to use it when he speaks or writes. Thus, the young lawyer who began law school being able to carry on a conversation like a normal person has become a legal speaking machine that only other lawyers understand. He hangs with other lawyers and gets paid to be a lawyer which must mean talking and sounding like the lawyer he has been taught to be.

                    This is a problem because the lawyer needs to communicate with non lawyers. This is especially true for a lawyer like me who does jury trials. I need to convince normal people my injured client deserves fair compensation. The last thing I want to do is speak and write in a way that is unclear to a normal person.

                    I must confess for my first few years as a lawyer I believed in legalese. It made me stand out as a lawyer. Routinely I would begin letters: “This letter serves to memorialize our telephone conversation of… .” I thought it was cool to talk and write like a lawyer. I have learned through the years that a quality lawyer talks and writes like a normal person. This means normal people understand and relate to what is being said or written.

                    Now a days I say let’s sign the agreement rather then let’s execute the agreement; I select a jury rather then conduct voir dire; I agree rather then stipulate; I deal with the other side rather then an adversary; I say harm rather than prejudice; I pay rather then reimburse. The list goes on and on but you get the point.

                    I want to be a normal person fighting for justice. To accomplish justice in our legal system I try cases to a jury of twelve normal people. I talk and write like the normal people I am dealing with.  And more often then not my client and I do well.