May 4th, 2014

The Personal Injury Associate-MIST Trial-Closing

John Henry suggests reading David Ball on Damages for closing argument considerations. Ball tells us closing is a time to enlist favorable jurors. This means closing is the time to give jurors on our side one line arguments for us and against defense. I use a combination of Ball, John Henry and my gut feeling.

Connect the Dots. Although Ball teaches do not rehash what the jurors have seen and heard during the trial, I begin by summarizing the evidence. In this way I put the pieces of the puzzle together for the jurors to make sure they get it. John Henry convinces me this makes sense because the other side will give their rehash version, so a brief connecting the dots shows our story is demonstrated through the evidence.

Jury Instructions. Next I cover the jury instructions. This means we discuss the instructions in a plain English common sense way. We show how the instructions guide us to the decision in our case.

Ball Method. I then use Ball’s method  word for word: “In a little while you will go into the jury room and you will have two jobs. One of your jobs is to answer the questions the judge has given you. Your other job is to explain to jurors why you feel the way you do about each question.”

“If someone says it is wrong to sue, tell them we sued because defendant rear ended Judy and this caused Judy injuries.”

“Tell them we are forced to come to court because defendant says Judy cannot have significant injuries because the bumpers do not show damage.”

“Remind them this case is about Judy Brown’s body not her car bumper.”

“If someone says defense doctor testified Judy was only injured for six to eight weeks, ask them how does this make sense when Judy’s treating doctor ordered physical therapy, referred Judy for surgery, and this treatment took over one year.”

If someone says Judy had preexisting neck and back problems, tell them her preexisting conditions make Judy more likely to be injured.” Remind them that the preexisting problems did not prevent Judy from doing her hobbies and physical activities before the collision.”

The Ask. John Henry and I consider trying Judy’s case on general damages alone as opposed to including the medical specials with the general damages. I decide to go the old fashioned way and  include the specials. The  specials are $35,000 and my generals are over $130,000.  (When specials are far less are than generals the low specials are an anchor that may bring down generals damages- thus the theory of trying the case only on general damages).

I decide to use the itemize the  damages approach. Thus, my proposed damage instruction (which the court uses) includes the specials. We create a power point using our damage instruction  and setting forth an amount next to each element of damage: For past medical expenses___, for past disability___,  for past loss of enjoyment,___, for past pain and suffering___. Next we show the time frame for future loss using the life expectancy instruction. As with the past elements, we itemize each damage element for the future. The end result is a total amount similar to the amount we said we are requesting in opening.

Rebuttal. There are schools of thought on rebuttal. Some maintain be brief on initial close and back load the guts of the close for the final say in rebuttal. We decide to front load the close as above and use a short statement for rebuttal. I prepare several possible short rebuttals and go with my gut when the time comes so my rebuttal is brief and fits the closing as it has evolved.

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April 19th, 2014

The Personal Injury Associate-MIST Trial-Cross Examination

Direct. My direct medical examination is of treating physician referred by our office. He is an MD with emphasis in sports medicine  and treatment of traumatic injuries. I use a combination of Luvera’s outline and my insight.

Cross-Defense Medical Expert. In cross exam of defense medical expert I initially, discuss bias using Luvera outline. Next I go to my Frontiers of Trauma theme. “Agree there are three phases of trauma: person’s preexisting condition going into trauma; trauma; and, treatment of traumatic injuries with continuing conditions possible.”

Phase One- Going into Trauma. “Agree woman more likely than man to be injured in rear end collision.” “Agree more likely to be injured in rear end collision if do not expect impact.” “Agree more likely to be injured if elderly woman.” “Agree more likely to be injured if preexisting degenerative disc disease.”

Phase Two- Trauma. On phase two, the trauma of collision, I confirm our female plaintiff: Does not expect collision; Is an elderly woman; Who has pre-existing degenerative disc disease. Agree “plaintiff fully cooperated with Defense Medical exam;”  “plaintiff gave maximum effort;” “plaintiff  is a candid decent person.”

Phase Three- Treatment/Residuals. Next we have defense expert  cover initial subjective and objective presentations of plaintiff in early medical records. “Agree treatment ordered is necessary to address injuries received in collision.” “Agree plaintiff followed treatment regimen set by her physician.” “Agree plaintiff has reached maximum medical improvement as of last visits with her MD.” “Agree any lasting medical problems [caused by collision] now must be considered permanent since plaintiff has reached maximum medical improvement.”

Defense Medical Examination. We then cover the defense medical exam findings that are positive confirmations of injury related to condition caused by trauma. Objective findings are discussed.

Plastic v. Present Cross. Although I prepared “Chapter Format” questions for cross examination, I took John Henry’s advice to stay in the moment without being wedded to my prepared plastic format. I allowed myself to live in the moment during my cross examination. I followed the advice of Allan Watts:

There are … two ways of understanding an experience. The first is to compare it with the memories of other experiences [prior deposition testimony], and so to name it and define it. This is to interpret it in accordance with … the past. The second is to be aware of it as it is, as when, in the intensity of …[the trial] we forget past and future, [and] let the present be all … .”

Trying a case in the present “is neither careless drifting on the one hand nor fearful clinging to the past and the known on the other. It consists in being completely sensitive to each moment, in regarding it as utterly new and unique, in having the mind open and wholly receptive.” Alan Watts, The Wisdom Of Insecurity, (1951).

This allowed me to have a conversation with the medical expert in the moment which both jury and expert related to and allowed me to go beyond my preconceived  plastic questions in a case positive way.

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April 12th, 2014

The Personal Injury Associate-MIST Trial-Direct Examination

John Henry teaches before we bring a case we must “Discover the Story” of our client and how she is impacted from the trauma. Only after doing this can we internalize our client’s situation as if we are in her skin. Direct examination  flows naturally as we and our lay witness or client have a conversation with the jury.

Before the examination I prepare an outline and cover it with my witness. When the testimony begins we talk together with the jury. I only use the outline to make sure I have covered the points we need to discuss. For my outline I use Paul Luvera’s Blog-Plaintiff Lawyer Trial Tips. Paul has outlines and input for all phases of trial  and direct examination is no exception. Below is my outline for direct of lay witness and direct of client.

Direct of Lay Witness (Client’s Daughter). Name, address. “Why did I ask you to testify.” “Tell the jury your educational background.” “Tell the jury about you family.” “Discuss you employment background.” “Describe [mother’s involvement] as you are growing up.” “Discuss frequency of contact with your mother.” “What types of things do you and your mother do together.” “Discuss your mother’s physical ability before collision of… .” “Discuss any physical limitations your mother had before collision of… .” “When did you learn of collision.” “Discuss your observations of differences in your mother following collision.” “What areas of your mother’s body have you observed are different since collision.” “What activity changes have you observed in your mother since collision.” “How does your mother deal with [inability to do work/activity she did before collision].” “Tell the jury what type of women your mother is as far as [being a complainer], [what is important in life], [overcoming adversity.”]

Direct of Client. Here is the link to Paul Luvera’s  Direct Exam of Own Client which I used in my MIST case.  On direct of client it is important to get client back in time to recount key events. Here we draw on our intimate bound with our client so she can discuss facts in the first person present tense if this comes natural (and it should if we have spent the time necessary to get into our client’s skin). We  get to the level where client can show the jury what occurred either on the witness stand or in the well if this makes sense in the case. We tell our client’s story with our client and know instinctively when to end on powerful testimony.

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April 11th, 2014

The Personal Injury Associate-MIST Trial-Opening Statement

John Henry explained to me in a MIST Trial it is essential to be brief, efficient and to the point. Although this is true in all jury trials it is especially true in a MIST case where the jury comes into the case believing they are faced with a lot to do about nothing. And this is exactly what the defense wants the jury to believe.

David Ball Opening. I follow David Ball’s opening statement formula, with modifications to fit my style. Here is my outline with a brief summary of what I said:

Rule. When we do not pay attention to the car ahead and we rear end the driver ahead we are responsible for the harm.

Story. Now let me tell you the story of what happened in our case. [Now I begin the story with defendant. With nouns and verbs in a straight forward dispassionate way I cover defendant’s actions into the collision. The logical conclusion which I let the jury make is defendant’s actions violate a rule and this violation is responsible for the harm.

Who Are We Suing and Why. Here I tell the jury we are suing defendant because [she violated the rule and does not agree to accept responsibility for her actions]. I explain why defendant denies liability and/or payment of fair damages.

But Before We Came to Court. Here I cover how we determined  that each of defendant’s positions on liability and/or damage is wrong, and who says it is wrong. At this point the jury has heard the facts of the violations. The jury has heard we only came to court after we ensured defendant’s positions are wrong. And, we are left with no choice but to come to court.

Causation and Damages. “In this case defense will stress bumpers, and Judy Brown’s pre-existing condition. We will concentrate on Judy Brown’s body not her car bumper.We will demonstrate Judy Brown’s preexisting condition combined with defendant’s action caused Judy Brown’s injuries.”

My Job You Job. Here I discuss how my job is to prove the injuries to help the jury do their job. “At the end of the trial the judge will give you instructions on how to figure how much money it will take to make up for the harm caused by defendant. In closing argument we will show you how to calculate the fair value of losses and harm to Judy Brown. We will not show you losses and harm to get sympathy. This case is not about sympathy. This case is about justice, and in a personal injury case justice takes the form of money compensation.”

The Three Phases of Trauma. “To prove our case we will discuss what EMT’s refer to as the three phases of trauma: 1) The person’s condition going into the trauma; 2) The Trauma; and, 3) Treatment for injuries and continuing injuries resulting from trauma.” [I then cover the three phases in the context of our case. I spend most of this time discussing the injuries, treatment for injuries, and how despite treatment certain injuries continue. Then I discuss how Judy Brown is impacted in her life because of the injuries].

The Damage Amount. “Now in closing argument we will help you use your power to fix and help Judy Brown. We will show you how to place a reasonable value to fix and help address Judy Brown’s injuries. We will demonstrate that a reasonable value is $168,086.”


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March 30th, 2014

The Personal Injury Associate-MIST Trial-Jury Selection

In this post I begin my report on my first jury trial. The case is a MIST case. MIST is an acronym coined by the insurance industry standing for “minor impact soft tissue.” Insurance companies know these cases are hard to sell to juries because many people do not believe a person can be injured if there is no visible damage to the cars involved in the collision.

John Henry suggests I read Trial by Human, by Nick Rowley. I read Nick’s book. Nick Rowley is one of the best trial lawyers in the United States and his book is a must read.  For jury selection I use a combination of Nick Rowley and Gerry Spence (“show yours to get them to show theirs”) tailored to my style.

Introduction. “I am nervous and scared, but this is an important part of the trial because this is the  time we get to talk together. This is my chance to find out which 13 of you are up for the job of being on this jury. It’s a job that will take at least four days, and its a job that is important to Judy Brown because this is her only chance to present her case. Now I bet many of you also feel nervous and scared because a lawyer is asking you questions, but I must do this to learn how you feel about important issues. I will be brutally honest with you. I ask you to be brutally honest with me-even if you feel I will not like what you have to say. I want to hear your feelings now rather than when the trial is over and you come up to me and say why did you pick me for this jury given my feelings about your case.”

Showing Warts. “Let me tell you a big concern I have about our case-in our case Judy Brown claims personal injuries from being rear ended by defendant. You will see the bumpers of the two cars, and you will see no damage to either bumper. What do you feel about a person seeking money after a rear end collision with no visible bumper damage.”

(This opens jury selection with me disclosing the biggest problem in my case. I listen to the jurors react. There is no wrong answer, I never disagree with a juror. This is because I need to hear negative feelings. Some express doubt on being injured without visible bumper damage. But a juror says a person can be injured without visible damage to the bumpers. I agree saying: “This case is about a person not a person’s bumper).”

Next I tell the jurors: “My client asked me for a recommendation for a doctor and I suggested the doctor she treated with. What do you feel about this?” (The discussion defuses another wart in our case).

Topic Areas. I introduce the question of  lawsuits to get money for an injury and ask what they feel about this. Following on this topic I move into money for medical bills (which all agree is not a problem). I then introduce money for pain and suffering: “What do you feel about money for pain and suffering?” (Here some jurors have a problem. No wrong answer but this leads to discussion on general damages in a personal injury lawsuit). I follow with: “What are important things in life?” (This leads jurors to discuss the importance of health, job satisfaction, activities, and interaction with family and friends. This evolves to jurors recognizing the loss of or diminution of the ability to work, do activities, and engage in relationships is significant. Next I introduce: “How important is it to be accountable for our actions?” “Does it matter if we do not mean to negligently harm a person?” “Does a money verdict have an impact beyond the particular case?”

Challenges. (When a juror is discussing her feeling on a topic I focus on the juror. My eye contact is with the juror. I continue with the juror by listening and with follow up. My goal is to get the jurors to talk 80 to 90% of my  jury selection time ). When a juror takes a position that is undesirable for our case, I ask the juror: “Should I fear having you on our jury.” (Some say yes and going deeper results in one of the jurors agreeing to a challenge for cause which the judge grants. After, I thank the juror for her honesty).

By disclosing my case weaknesses I beat defense to the punch, and show the jury I am honest. Through our discussion we learn feelings that allow us to best exercise preemptory challenges. On preemptory challenges, we only challenge jurors who will destroy us.


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August 5th, 2013

The Associate-First Jury Trial


My first jury trial is one month away. Today I talked to John Henry about jury selection. When I asked him about jury selection he told me about hearing the “Three Amigos” on NPR. The “Three Amigos” are three religious leaders-a Jewish Rabbi, a Muslim Iman, and a Christian Priest. John Henry told me to listen to the “Three Amigos” to learn the essentials of Jury selection. Well I listened to them and this is what I learned:

How to Begin. Rather than beginning a discussion with another person about religion (or with a juror about the case) we begin by learning who the other person is. For the “Three Amigos” this means they do not begin a religious discussion “by discussing common and disparate beliefs.” They begin by getting to know the other person. Here there is no right or wrong answer. There is never criticism of the other person. There is no debate. There is acceptance of who the other person is and how they perceive and feel about issues.

Listen. John Henry added that to get to know another person we must get into their  skin. To do this we must listen. It sounds easy to say OK we can listen, but listening is easier said than done. Usually we start to think what we am going to say as we wait for the other person to stop talking. Then we immediately start to talk. John Henry says this is not listening. Listening is being present in the now while the other person talks. Listening is internalizing what the other person says by feeling what the other says. While the other speaks we make eye contact, and we are open to the other. When they stop talking we reflect on their their words and body language. This means silence rather than an immediate response. We respond by acknowledging what the other said through words and body language that lets the other know we understand.

Reveal Vulnerabilities. The “There Amigos” teach to “reveal vulnerabilities,” when we discuss our feelings with the speaker. By doing this we engage the other in a discussion of beliefs. Here there is honesty about ourself and  acceptance  of the speaker. In this way we get to know the speaker. We do not try to convert the speaker. Rather we discuss how each of us can make room for the other’s belief without conversion.

Overcome Ego. The ‘Three Amigos” teach we must bury our ego-“our little self.” By doing this we open up to the lives of others. This is not what I learned in law school. John Henry says law school stresses debate and argument. In jury selection we stress honesty and acceptance. We are looking for inclusion rather than exclusion. John Henry says the jury is like a tribe and we are the voice for the tribe. We are all in this together.

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January 1st, 2013

The Associate-Do It Yourself

Today we start a New Year-my first full year as a lawyer, John Henry talks about habits of a quality lawyer. Habits  to develop and stay with through my legal career. The habits center around the concept “Do It Yourself.”

The Great Artist.  John Henry begins by telling me a story about a William Cumming art exhibit he attended several years ago where Mr. Cumming spoke in the afternoon. When Mr. Cumming took questions a young man asked him if art school teaches a person how to be an artist. William Cumming looked at the young man in silence for several seconds and then said an artist is an artist and does not need to be taught how to be an artist by an art instructor. John Henry says the same is true of a quality lawyer.

Do the Research. John Henry uses the original case/statutory authority for his legal analysis. He shies away from secondary authority such as ALR or CJS. He teaches me to arrive at my own arguments given the story of my case and original legal sources. Like an artist we write from the heart. We do not rely on a another lawyer’s brief or on secondary authority.

One With Client. John Henry teaches to bound with our client. My client meets with me when we sign the case. I listen to my client tell her story. I have my client speak in the present tense and show and tell me what happened. This allows me to see as close to first hand how my client is impacted. I go to my client’s home and spend time with her to get into her skin to understand her injury. My client and I answer interrogatories together. My client and I prepare for her deposition together. We do this by discussing the elements of the case and telling the story in a clear compelling way.

Believe in Myself. John Henry says the key is to believe in myself every step of the way. Like William Cumming I am an artist in the law. When I know the facts inside and out, have my client’s story internalized, and  feel similar emotions to my client I am ready to trust myself. No one can show me how to try the case, and this is why I am a legal artist.

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November 29th, 2012

PI Associate- Professionalism

Today John Henry talks to me about “professionalism.” He begins by telling me I will soon develop a reputation among lawyers, judges, court clerks and bailiffs, court reporters and people in the community. He tells me my reputation the long run is all I have. John Henry makes a big deal about “professionalism.” He tells me I must practice law at my highest level at all times. He tells me I must look like a professional, speak like a professional, write like a professional and be a professional.

Look Like a Professional. John Henry says dress like I am going to court. This means a suit or sport coat with a pressed shirt and tie. This means pressed slacks and dress shoes that are shined. John Henry likes Hickey Freeman for suits and sport coats. He wears Gitman shirts. His shirts are dry cleaned. He likes Allen Edmunds shoes. He  wears a belt matching his shoes. He wears subtle colors. John Henry fits the stereotype of a successful lawyer. He says “to be successful look successful.”

Speak Like a Professional. John Henry reminds me we earn our living by talking and how we speak is essential to our success. First, think before I speak. Refrain from senseless babel. He reminds me of the Lincoln quote “It is better to remain silent and be thought a fool, than to speak and remove all doubt.” He tells me to speak with power. This means speak in nouns and verbs. Eliminate modifiers- adverbs and adjectives that suck the blood out of a message of nouns and verbs. Words that have no place as far as John Henry is concerned are: pretty,  little, probably, maybe – any word or phrase that telegraphs weakness, doubt or uncertainty.

Write Like a Professional. As well as speaking we earn our living by writing. John Henry gives me Strunk & White, The Elements of Style, and tells me to read it from cover to cover. Read it every year until it is ingrained into my writing (and speaking). He tells me never to write something I do not want the world to read. He says this is especially true with e-mails.  On writing he likes to stick to the point, make the point and move to the next. He likes short paragraphs. He likes the rule of three.

Timeliness. John Henry says always be on time. Plan ahead. there is no excuse for being late. John Henry says timeliness means returning telephone calls, and correspondence. Timeliness also means meeting deadlines, including discovery deadlines.

Kindness. John Henry explains a professional is kind. He says “you never know who you are being nice to.” John Henry says learn the other person’s story and therefore who they are.  Here John Henry says the secret is listen. John Henry likes a “soft cross examination.” He prefers to make the witness his rather than destroy the witness.

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November 20th, 2012

The Personal Injury Associate

I feel fortunate. I have landed an associate position. Not a traditional associate position, but a job working for an experienced lawyer-a personal injury (PI) lawyer. He is a member of the law firm Weiss  Henry, Jones, & Bennett (WHJB).

In a traditional law partnership the partners collectively share their profits, or divide them based on a formula at the end of the year. The partners have associates that they bill at a rate at least twice the amount they pay the associate. In this way the law firm can represent multiple clients through the use of associates, and make more money along the way. This traditional formula works for lawyers who bill on an hourly basis.

My cases are billed on a contingency fee basis. This means our law firm or my partner John Henry (JH) does not bill on an hourly basis. He represents injured people without taking a retainer from the client and without billing them for his time. Rather he takes a percentage of the recovery-generally one third. At WHJB the partners each have their own cases and do not share their fees. The partnership is a cost partnership meaning the only sharing is with common overhead such as rent, the receptionist and our internet law library. JH gives me smaller cases and I work them to completion with his help. He pays a salary and keeps his share of the contingent fee.

Most important for me JH is teaching me how to be a lawyer. JH says law school is necessary to become a lawyer but that’s about it. JH says law school has little to do with how to be a lawyer. JH says being a PI lawyer is about two things. First is helping the little guy against the big insurance company. JH says in a car collision case the defendant runs over the plaintiff and then the defendant’s insurance company runs over the plaintiff . The PI lawyer stands in the way of the insurance company and gets fair value (justice) for the little guy. Second the PI lawyer makes a decent living along the way. According to JH this means taking cases he has a likely chance of winning. Sometimes JH loses. He says this is what happens when we try cases on a regular basis.

JH says insurance companies also run over  lawyers who do not try cases. This is because they know they can settle the non trial lawyer’s cases for minimum value since the insurance company has no risk.  It is only when the insurance company has a risk of loss at trial that they may pay fair value. So JH is teaching me how to be a trial lawyer. I’m about to meet a new client so I have to go. Soon I will report on my first lesson on being a trial lawyer.


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