November 25th, 2023

Proud to be a Trial Lawyer

In Washington I am a member of a plaintiff association of trial lawyers initially called Washington State Trial Lawyers Association. Several years ago our organization changed its name to Washington State Association for Justice. This is because most of the people we represent do not end up in trial. What we do is:

Help Injured People. We represent injured people. I only take a case if I can get my client more of a recovery after my fees are paid than they would receive without my involvement. I take cases on a contingency fee meaning my client pays me nothing to represent them unless I recover in the case. In the end I help an injured person because without my involvement as a trial lawyer the insurance company will not pay fair value.

We Stand for Justice. In our society when a person is injured through the negligence of another justice is obtained by way of a monetary recovery. As a trial lawyer I have the ability to get a fair recovery by way of a trial and standing for justice.

We Make Society Safer. In our society it often takes a financial message to get wrongdoers to correct their negligent conduct. As a trial lawyer I have the ability to demonstrate the wrong and the damages that flow from the wrong. This in turn leads the jury (the voice of the community) to inform the community we do not accept negligent conduct.

We Lobby for the Common Person. Insurance companies are wealthy powerful corporations with agendas to turn maximum profit for their shareholders. They pay millions of dollars every year in lobbying to place barriers on damages.  The common person who sustains injuries has no lobby to take on legislation proposed by insurance lobbies. National and state trial lawyer associations are the lobbies for the common person. Through my membership in these trial lawyer associations I support efforts to defeat agenda legislation sought by the insurance companies.

Obtain Justice. I only represent people who are injured through the negligence of another.  I stick to the truth. Telling the truth translates to success in negotiations and in trial as we all have a feel for the truth. Juries want the honest injured person to receive a fair recovery. They want to see society safer through their verdict. When the insurance company recognizes this without or with a trial and the case is complete, I have the satisfaction of getting  justice for my client and  benefiting the community.

 

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November 10th, 2023

Books That Helped Me Be a Better Trial Lawyer

These are books helped me be a better trial lawyer:

Red Badge of Courage. Stephen Crane’s classic short novel about Henry Fleming a young Yankee Soldier in the Civil War is a lesson in overcoming fear. I always have some fear of trial because of the unknown. As a trial lawyer I must be like Henry Fleming in Red Badge of courage and overcome fear going into trial.

Catcher in the Rye. In trial pretense is death. No one knows a “phony” better than Holden Caulfield.  J.D. Salinger’s best novel  reminds me of the importance of staying true to myself and the good and bad of my case.

On the Road. Here I met Dean Moriarty and learned the importance of appreciating the uniqueness of each client. Dean is up and Dean is down. Dean stands for adventure. Dean reminds me each case is an adventure with my client.

To Kill a Mockingbird. This one hit wonder of Harper Lee reminds me to stand tall against overwhelming odds. I prepare for trial, I believe in my case,  accept the possibility of defeat,  give my best effort, and never quit on myself. The movie version of the book with Gregory Peck as Atticus Finch is a bonus where I see how a trial lawyer carries and conducts themself.

The Last Trials of Clarence Darrow. Donald McRae’s 2009 book covering Clarence Darrow’s last big cases gives me insight on how the greatest early trial lawyer in American history prepared for and tried his cases. Like Darrow I immerse myself in the case, memorize poems and theme lines,  throw away my notes, and try the case from my heart.

Honor Killing. Clarence Darrow is in the second trial covered in this non- fiction historical piece. The hereo is not Darrow. The hero is the State of Hawaii, and the Hawaii Bar Association. Honor killing made me proud to be a trial lawyer standing for justice despite what  those outside (who usually know little of the truth) may say or print.

Seabiscuit. A wonderful sports book about a horse. Seabiscuit taught me to accept who I am, do the best with what I have, and this may be lights out good. The saying you can’t judge a book by it’s cover applies to horses and lawyers.

Bury My Heart at Wounded Knee. as a trial lawyer I stand for justice. I represent the little guy against big corporations. I care about protecting the rights of those who need protection. When I read how American Indians were treated by our ancestors, in this non-fiction work by Dee Brown written from the American Indian perspective, I am reminded how important it is to advocate for the less powerful.

The Autobiography of Malcolm X. All trial lawyers, especially young trial lawyers, will gain perspective from the 1960s and race in America from The Autobiography. This book impacted me years ago and it still impacts me today.

Seven Story Mountain.  I have a spiritual life. A spiritual life makes me a a deeper person and a better lawyer. Thomas Merton’s biography took me on Merton’s  spiritual journey about how the greatest Christian mystic of the 20th century evolved.  Like William James, Merton has little use for fundamentalism. Spiritual life is found by the individual, and is beyond doctrine..

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October 24th, 2023

First Impression

Malcome Gladwell says we form our first impression within seconds (two seconds to be exact). He points to studies showing not much difference between a first impression based on seconds and an impression based on prolonged exposure. (See What the Dog Saw).

On reflection this makes sense in our age of sound bites and rapid fire media coverage. This also makes sense when we look at ourselves from an evolutionary standpoint. Our prehistoric ancestors had to immediately react on first impression to survive.

Applying the reality of first impression to a jury trial means our jurors form an impression of us before we open our mouths. According to Gladwell people like and trust people who appear confident and smile. To fail to make immediate eye contact and smile when jurors enter the courtroom is to miss the initial first impression opportunity.

Jury consultants David Ball and Harry Plotkin teach the importance of jury selection and opening statement in establishing the case in the minds of the jurors. Jury selection is the first time we have a dialog with our jurors. The great Clarence Darrow is reported to have whispered to his second chair after jury selection “the trial is over.” (He was correct in that case).

Opening statement is the first time we introduce the case to our jurors. Both Mr. Ball and Mr. Plotkin teach to begin dispassionately with the conduct of defendant. Then introduce plaintiff in a factual way without trying to sell the case. The aura is that of an accurate historian where the facts call for justice in favor of our injured plaintiff. This leaves a first impression of objectivity. When we do this with a pleasant demeanor coupled with an aura of acceptance we make a favorable first impression. Although the trial is not over we are on our way to success with a favorable first impression.

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October 15th, 2023

Tribute to Howard Nations-The Spielberg Method

Problem Presented. At times in jury selection I am faced with overcoming a jury bias about frivolous lawsuits.

The problem with challenging the belief is that it will not succeed.  In the words of the great Washington State trial lawyer, Paul Luvera, “You can challenge people on their bias, their life experience, and their values, but it is a waste of time.” 

Conversely,  agreeing with the belief is disingenuous  as we know most lawsuits are not frivolous. Being disingenuous with the jury is false and likely sensed by the panel. 

When faced with a jury panel where members express the belief many lawsuits are without merit Howard Nations teaches “The Spielberg Method” which suspends the bias belief for the life of the trial.

 When I am faced with a juror or a group of jurors who are tort reform/frivolous lawsuit believers I copy Howard Nations and The Spielberg Method:

 First, I acknowledge the frivolous lawsuit tort reform bias. Not only do I acknowledge it I help justify it. “Mr. Jones I understand you are saying our legal system must ferret out bad lawsuits. You believe our legal system has no room for a frivolous lawsuit.”

Second. I link my case and my client with the bias. “Mr. Jones, Brad Barnes and I agree with you. A frivolous lawsuit clogs up the court and delays recovery for a legitimately injured person.”

Third, I then agree with the juror or jurors to suspend the bias during the life of our trial.”Mr. Jones do you agree there are proper lawsuits with legitimately injured people?” “Can you agree if we demonstrate Brad Barnes has a proper lawsuit with a legitimate injury to provide justice as a juror in the form of fair compensation?”

Prove Legitimate Case. As with all cases, to succeed in The Spielberg method I must demonstrate a legitimate personal injury case from opening statement through closing argument. This means I show my client is a straightforward honest person. No overstatement, no gilding. I prove injury and damages to a decent person who is legitimately injured. This is done in a simple common sense way so the picture is clear with no confusion.

Closing and Frame of Reference. During closing argument I return to the mutual promises. In jury selection I promised to demonstrate a proper lawsuit and a legitimately injured person. Remember we discussed that there are proper lawsuits that deserve compensation. I remind the jury they agreed to provide justice in the form of reasonable compensation for a proper lawsuit. Here we have a proper lawsuit and you now have the job to recognize it and distinguish it from a bad lawsuit by providing fair compensation.

Although the bias is this still there it has been suspended during the trial. In fact  the bias has been reinforced as the juror or jurors now have recognized there is a frame of reference from which to distinguish the bad from the good. “Fortunately, you are jurors on a legitimate lawsuit and your verdict will serve to make clear the legitimately injured person will receive fair compensation.”

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September 17th, 2023

The Yin and Yang of Personal Injury Practice

T’ai Chi theory teaches we have capacity beyond what is commonly believed. We are capable of a higher level of achievement. Boundaries or rails on higher achievement come from  restrictions or barriers we place on our capability One reaches the ultimate level, or develops in that direction, by means of the ladder of balanced powers and their natural motions-Yin, the negative power (yielding), and Yang, the positive power (action).” Waysun Liao, The Essence of T’ai Chi, (Shambhala 2007) at 6.

Yin and Yang oppose and complement each other. When this natural law of balance is lost so is our ultimate capacity. This can happen when a trial lawyer loses balance (often when the charging Yang dominates the yielding Yin).

All cases cannot be tried, and some cases should be settled. The trial lawyer knows all cases cannot be settled and some cases should not be settled. The key is  balance. Balance is knowing when to try a case and knowing when to settle a case.

Balance of Yin and Yang is the key. At the beginning of a case Yang is often in the lead. In dealing with an insurance company this is good as fair case value is achieved when the insurance company knows the lawyer believes in the case and will try the case. The successful trial lawyer never takes a case they do not believe in, as belief is essential for success in trial. When the trial lawyer believes in the case a Yang aura permeates the case. The insurance company takes the case seriously. The Yin aura emerges after the insurance company takes the case seriously. This is when fair value can be paid. This balance of Yin and Yang leads to a quality settlement,

“The Chinese have long realized  the two T’ai Chi elemental powers must interact, and the harmonious result …[brings] progress and unlimited development.” Id. at 8. When we practice personal injury law balancing the two powers of Yin and Yang we benefit of our client and our law practice.

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February 15th, 2022

Offensive Innovation

Offensive Innovation comes from Gerry Spence and Stephen King.  Speaking to experienced trial lawyers at the Trial Lawyer’s College Gerry Spence explained “you have yet to try your first case because you have been practicing law and trying cases in a way that is expected of you.” At the college we learn to take off our mask and proceed how we intuitively know is right.

 In Stephen King’s book 11/22/63 there is a passage where Jake Epping a high school English teacher tells about  Harry Dunning, a janitor who returns to finish high school:

“My honors kids were juniors…but they were like little old men and little old ladies, all pursey-mouthed and ooo, don’t slip on that icy patch, Mildred. In spite of his grammatical lapses and painstaking cursive, Harry Dunning had written like a hero. … As I was musing on the difference between offensive and defensive writing… .”

Offensive innovation means knowing yourself, trusting your ability to know what is right and acting on it. Taking action in an offensive way going with what I know instinctively without defensive thinking.

Years ago I was at a lecture by the great painter, William Cumming. During the question and answer session a young man asked Mr. Cumming if an artist can learn by studying painting at an art school. William Cumming answered “the ability to create art is not taught. It comes from inside the artist.” The artist knows inside what he wants to paint and he paints it without regard for how it will be received. The artist is painting with “offensive innovation.”

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September 12th, 2021

Keys to High Level Performance

A successful personal injury lawyer must try the case when the insurance company is unreasonable Trial requires performance under stress. For performance at the highest level:

Prepare. First know the facts inside and out and know the law. Preparation is the foundation to successful performance. It is not the brightest who prevails it is the hardest worker. The lawyer who spends the time to internalize the facts and the law is the lawyer  who has the highest likelihood  of success. Put simply out work the opponent.

Trust Yourself. After thoroughly preparing trust yourself. Here it is essential to recognize you are ready to go. You know what you want to accomplish. You know you are able to get it done at a high level. Like all successful athletes and actors believe in yourself. This self belief results in confidence.

Accept Inability to Control Result. Recognize  the only thing you have control over is yourself. You have the ability to put the time in for preparation. You have the ability to methodically go about the trial or task. You do not have the ability to control the result. And the result may be bad. This must be realized and accepted. Doing this has a psychological or subconscious effect of relaxation and performance without the stress of having to win. This in turn allows performance to take place in the present where natural talent and instinct  emerge to allow high performance.

Visualize High Performance. Successful athletes and actors visualize the game or play before it happens. Often this is as simple as remembering past success and calling on the thought process that occurred. This is an imaginary dress rehearsal. When the event happens the successful athlete or actor is psychologically ready for high performance.

Remember Peaks and Valleys. The great coach John Wooden wrote a note to Rick Neuheisel when Neuheisal started as head football coach at UCLA. The note included the statement  “there will be peaks and valleys.” Great coaches remember the peaks and forget the valleys. No quality athlete or actor dwells on past failures. Forget about past failure and move on. This is what a successful trial lawyer must do.

Simplicity is Beauty. Remember to keep  presentation simple. When in doubt remember the rule “less is more.” Lawyers tend to talk too much and complicate the picture. This risks confusion with the  jury. Confusion with the jury is the darling of the defense lawyer’s nursery. Tell the jury what you want and why it matters. Once this is done move on. Remember  jurors want to hear what they need to know, but they do not want to hear what they do not need to know.

Never Give Up. There will be hard trial times as in “peaks and valleys.” The key is to never quit on yourself. The key is to continue to move ahead at the highest level possible. Remember you cannot control the outcome but you can control giving your best effort. Giving your best effort means living in the present at the highest level until the end.

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May 10th, 2021

Learning from Simon Rifkind

Interview With Simon H. Rifkind (Litigation Journal Sept. 1984).

Q. Judge there  has been a great deal of criticism of the lack of ability of lawyers to try a case. Is this criticism valid?

A. Well, I have seen trials conducted with extraordinary skill, and great dramatic effect, in the best style that one could possibly imagine. I have also seen trials that were bumbling and poorly done. That’s always been true… . I’m not aware of any decline in the capacity of trial lawyers.

Q. What are the requirements of a successful trial lawyer?

A. It is essential a trial lawyer come into the courtroom knowing his case.

A, He must know the facts.

B, He must know what he is trying to establish.

C, must have a strategy and a program for achieving it.

To illustrate when I was a Federal District Court Judge for the Southern District of New York I would occasionally have a lawyer come up and say: “Does your Honor want an opening statement?”

To me this is a foolish inquiry. It is like the producer of a play opening the curtain and saying: “Members of the audience, would you like a prologue or would you rather do without one?”

Q. So what would you do to become a quality trial lawyer?

A. Now of course experience helps. A good apprenticeship is helpful. Emulating a master of the art is always a useful thing, but I have always said you have to be yourself. I can’t overstate the point that every trial is theatre, every trial lawyer is a performer, and he must have his style. He has to be himself, natural to himself, compatible with his spirit, with his physical well being, with his appearance, with his dictation, with his style.

Q. Do you try a case before a jury different than a bench trial.

A. I do not distinguish between a jury trial and a non jury trial. I regard a non-jury trial as a trial before a one person jury.

You have an audience, you are writing a play in competition with another playwright who is trying to write a different play. It takes a lot of skill and effort, but it is theatre, there is no question about it. Any significant trial is a contest, and every contest involves a sense of emotional tension.

The only difference between a bench trial and a jury trial is in a bench trial we have a very experienced theatre goer. Nonetheless, a theatre goer with emotion and a heart waiting to decide for the better play.

(Edited by PAT).

 

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November 30th, 2020

Frontiers of Trauma-Crash Phases and Energy Exchange

Here are preparation notes for cross examination of defense medical expert in a personal injury case:

Trauma. In trauma start with the injured person’s story of the impact and the energy exchanged from the impact. To evaluate traumatic injury begin with an understanding of the person going through the crash phases.

A traumatic event is divided into three phases: 1) Pre crash phase: 2) Crash phase; and 3) Post crash phase.

Pre Crash Phase-Here we look to the person before the traumatic event. Acute or pre existing conditions are taken into account. A traumatic event is more injury producing to a person with pre existing conditions such as degenerative disk disease. As we age we degenerate and this includes progression into degenerative disk disease. Making the person less able to handle a traumatic event. Other pre crash considerations include the body position before trauma, expectancy  and gender.

The Crash Phase. “The crash phase begins at the time of impact between one moving object and a second object. The second object can be moving or stationary and can either be an object or a person.” Kinematics of Trauma. In a motor vehicle collision three impacts occur: 1) The impact to the vehicles; here collision energy may be absorbed by the vehicles seen in vehicle damage. A heavy duty bumper allows the energy to continue with less dissipation into the people in the vehicle. 3) The third impact may be to the occupant’s internal organs striking the chest wall, abdominal wall  and skull. Id.

The Post Crash Phase. This phase begins with the care of the injuries. The post crash continues for a lifetime in a permanent personal injury case.

Energy Exchange. In a  traumatic injury case it is important to evaluate and understand the energy exchange, and the forces involved. Medical providers and juries relate to cases involving the exchange of significant energy or force. There is a common sense relationship between the exchange of significant force and injury. 

The Law of Conservation of Energy and Newton’s Second Law of Motion. “The law of conservation of energy combined with Newton’s second law of motion describes that energy cannot be created or destroyed but can be changed in form.” Id. Applied to an automobile collision, the motion of the colliding vehicles is energy. When the vehicles collide their energy is dissipated by the bending of their bodies. Energy is then dissipated inside the vehicles as occupant bodies strike objects inside the vehicle. Energy dissipation continues inside the structures of the bodies of the occupants as their organs stop their forward motion against the chest wall, abdominal wall and skull. This translates to personal injury.

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October 30th, 2020

Role Reversal

Harper Lee in To Kill A Mockingbird says [“y]ou never really understand a person until you consider things from his point of view.”  As a trial lawyer it is essential for me to understand this reality. One way to do this is role reversal.

 Client. I listen when relating to my client. After listening and understanding I role reverse.  I see myself in my client’s shoes. This means all aspects of my client as well as his injury. I become my client and internalize how I feel in his skin.

Defense Lawyer. I also become the defense lawyer. This means having lots of cases as most insurance defense lawyers do. This means having to answer to home office. This means trying to win the case. What facts do I need to know? What facts are bad for me as the defense lawyer? What facts are good for me? How do I feel if  plaintiff is an honest likable person and his lawyer is likable?  How do I feel if  plaintiff and/or his lawyer are not likable?

Witnesses. This means experts and lay witnesses. What is my motivation for being a defense expert or lay witness. Am I preventing frivolous lawsuits? Do I do this to make money or help a friend and this is what is most important? Do I do this because I like to work or want to get involved? These answers help better deal with the witness at the time of deposition and and  trial.

The Judge.  I become the judge. As the judge I want to be seen as fair and impartial. I want to follow the law. I do not want to be reversed. In a close case I will go with the better lawyer. He will be my advocate if there is an appeal.

Jurors.  I become the jurors. In jury selection I learn background facts of jurors that allow me to become the juror. What do I think of the case on first impression? What makes me want to root for plaintiff? What leads me to want to see plaintiff in a negative light

 Keep doing role reversal. I role reverse in my cases and in my personal life. Role reversal makes me a better lawyer and a better person.

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