May 2nd, 2012

Learning from Malcolm Gladwell

In Malcolm Gladwell’s book What the Dog Saw we learn:

Interior Life. “We want to know what it feels like to be a doctor,” rather than what doctors do every day. “Curiosity about the interior life of other people’s day-to-day work is one of the most fundamental of human impulses.”

Belief in Product. Gladwell  discuses famous “pitchmen” by distinguishing between an athlete who sells a product by pitching himself and a true salesman who sells a product by pitching the product. The great pitchman has an internal belief in his product. The great pitchmen in Gladwell’s book have internalized their product by inventing a better mousetrap so to speak. Thus, they have the enthusiasm that comes from a knowing understanding of the superior nature of their product.

Client’s Skin. Listening to Gladwell makes me think the same is true for a lawyer who is selling his client’s case. The lawyer has a story to tell and the story is not about himself. The story is the story of his client. The story can be told with full conviction only when the lawyer has taken the time to climb into the skin of his client. The lawyer must internalize the facts of his client’s story at the same emotional level his client has lived the events of his case.

Total Belief. When this has been done and only when this has been done is the lawyer ready to present his client’s case. At this point the lawyer can talk to the judge or jury on a personal and intimate level. Notes are not necessary, just as when Gladwell’s pitchman naturally discusses the product he  invents and in which he has total belief. Although the lawyer has not invented the case, he knows the case internally so he relates to his client’s story as his story. The effect on the judge or the jury is to internalize “what it feels like” to be the injured plaintiff.

    April 20th, 2012

    Thoughts on Losing a Trial

    This week I received a verdict in a eleven day survival action case. The verdict is a total defeat. My client the estate of decedent takes nothing. I estimate my law partner and I including our legal staff spent over 400 hours on the case. We likely have $40,000 in costs advanced which we will not be paid by the insolvent estate. Below are my thoughts:

    What We Control. We cannot control the result. What we control is preparation and work before and during trial. For me this means  countless hours before trial and 15 hour work days including weekends after the trial begins. We gave our best effort and there is nothing more we could have or would have done. There is satisfaction in knowing this.

    Taking Cases. They say if a lawyer wins all of his trials he is not trying enough cases. Well I am trying enough cases because I lose sometimes. The case I just lost was a hard case factually and legally. I know the decedent’s family. I took the case because I am their lawyer. They wanted justice for the death of their son and for this they came to me.

    Jury Instructions. Before I file a case I have a solid understanding of the facts and the jury instructions to appreciate the rules the jury will follow when making its decision. This gives me an appreciation my opening and closing and the evidence in between.

    Continue to Stand for Justice. I will continue to take tough cases. After all I am a trial lawyer and this means I must enter the arena. To quote Theodore Roosevelt:

    It is not the critic who counts, nor the man who points how the strong man stumbled or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena; whose face is marred by dust and sweat and blood; who strives valiantly…who knows the great enthusiasms, the great devotions, and spends himself in a worthy cause; who, at best, knows the triumph of high achievement; and who, at the worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who know neither victory nor defeat.
    Theodore Roosevelt, 1910

      March 28th, 2012

      Personal Injury Case and Casablanca

      Often when I am discussing a client’s personal injury case I ask my client if they have seen the movie Casablanca. Regardless of whether they have seen the movie I tell them their case is like the closing scene.

      In the closing scene of Casablanca Humphrey Bogart tells Ingrid Bergman she must leave Casablanca with her husband. The success of the French Resistance in World War 11 depends on her leaving with her husband. When Ingrid Bergman asks about “us”  in relation to her husband Bogart says “the problems of three little people don’t amount to a hills of beans in this crazy world.”

      I then tell my client a wise client years ago told me “nothing matters unless it matters when you’re 75 years old.” I then explain this statement  and the closing scene in Casablanca represent the importance of her personal injury case. Meaning the only thing that really matters is how she feels at 75. If she misses the opportunity to do everything she can to recover to the highest possible level from her injury she will regret  missing the opportunity she has now when she is 75.

      As far as the simile on her case being like Casablanca, I explain her legal case  ultimately does not mean a hill of beans in the long run of her life- meaning when she is 75 years old what matters is how she feels. Plus dedicating herself to recovery now by doing everything in her power to get better makes her personal injury case better. This is because juries best appreciate a person who never gives up and does everything possible to overcome her injury.

        March 21st, 2012

        Offensive Innovation

        “Offensive Innovation.” comes from the following sources:

        Gerry Spence. I saw a five minute video of Gerry Spence speaking to the 2010 Trial Lawyers College class where he tells experienced trial lawyers they are getting ready to try their “first case.” Mr. Spence explains to the lawyers they have yet to try their first case because they have been practicing law in a way “that is expected of them.” This includes their trials. At the college they will discover their true self and proceed to do what they intuitively know what is right.

        Stephen King. In reading Stephen King’s book 11/22/63 I came across a passage where the hero Jake Epping a high school English teacher tells us about  Harry Dunning, an unsophisticated 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… .”

        This simple reflection passage caused me to think about offensive and defensive writing. Meaning defensive as in a way meant by Gerry Spence-a way we think others (like King’s hero Epping) want us to write.

        NPR. Thirdly, I heard the end of an NPR interview with Roberto Verganti who wrote Design Driven Innovation. This is a book that reasons success in business is about having a vision, and taking that vision to your market. Game-changers like Nintendo’s Wii or Apple’s iPod overturned our understanding of what a video game means and how we listen to music. The market place did not show a need for these new meanings, but once it experienced them, it was love at first sight.

        Offensive Innovation. I think what Gerry Spence, Stephen King and Roberto Verganti are talking about is “offensive innovation.” “Offensive innovation” means knowing yourself and trusting your ability to know what is right. Then act on it. Take action in an offensive way meaning go with what you think without defensive thinking/worrying about how you will be accepted. As the Nike slogan says “just do it.”

        Several 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.” In essence 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.”

        I will do my best to try my next case with “offensive innovation.”

          March 15th, 2012

          Think Outside the Box

          This post discusses thinking outside the box to succeed as a trial lawyer representing injured people.

          The Time is Now. A trait of a quality trial lawyer is living in the moment. Preparation is essential as in having a thorough understanding of the facts and the law. Also it is important to image the case so the steps of the trial are imagined or imaged as an actor does before the play. This preparation  should not, however, substitute for allowing the trial to unfold naturally while staying in the moment. Staying in the moment lives the case as the jury lives the case. This creates connection with the jury. Staying in the moment removes any plastic rehearsed presentation.

          Ditch Prior Successes. Great trial lawyers rarely use the same argument again. They move to the next case and present it in a new way that fits the story of the case. Defense lawyers at times pick the brain of a prior opponent to try and find out how the lawyer will approach their case. Trial lawyers who think outside the box could care less about what the prior lawyer has to say because the last case is done and they have moved on to the next with a fresh presentation that fits the story of the new case.

          Do the Opposite. Under the classic personal injury case situation the lawyer presents a settlement demand prior to filing the case. Although this still makes sense in some cases, in many cases the pre filing demand is a waist of time. Further it telegraphs to the insurance company the lawyer wants to settle the case rather than take the case to trial. This results in the insurance company paying less for the case. Full value is paid when the insurance company knows the lawyer is prepared and willing to file the case.

          Try the Case Without Medical Records. With the advent of Evidence Rule (ER) 904 trial lawyers routinely submit voluminous medical records of their plaintiff which are then introduced at trial. Consider thinking outside the box and forget about submitting ER 904 medical records. Have the treating physician testify to all relevant medical facts. In closing reiterate key medical testimony. The jury does not take any medical records into the jury room. This allows for a decision based on the medical testimony rather than on what a juror may chose to focus on when medical records are available in the jury room.

          Never Stop Learning. Although the saying is success breeds success, success is dangerous when it breeds contentment, failure to reflect, and failure to grow. In today’s world change is rapid and those who fail to change and grow are left behind. Remember to forget the glory days, grow from the past and live originally in the present.

            February 15th, 2012

            “The Litigators” Thoughts on the Book

            On John Grisham’s book The Litigators: The book is funny and entertaining. It is somewhat realistic as far as trial tactics and courtroom scenes. The book plays on lawyer stereotypes, and paints an unfair picture of small and big law firm trial lawyers. This picture of trial lawyers will likely be accepted as true by the  general public. This will  further insurance propaganda that personal injury lawyers are ambulance chasers out to turn any arguable case into a cash cow.

            Taking a Case. In today’s legal climate an experienced personal injury lawyer does not take a case unless he has an honest client, who has been legitimately injured and he can demonstrate liability. Stated another way the case must be one where a jury will relate to  the client being legally wronged and deserving of fair compensation.  An experienced personal injury lawyer does not try to manufacture a case. This is because such an attempt is doomed to failure. Failure in a personal injury case means the lawyer makes nothing in fees.

            Paying for a Case. Assuming the referring lawyer does not also work on the case, it is unethical for a lawyer to pay for a referral of a case.  Grisham leads his readers to believe this is standard procedure for personal injury lawyers.   The standard procedure is to refer to a lawyer who the referring lawyer trusts and knows will do a quality job in representing the client. This is because the majority of referring lawyers are ethical and simply desire what is best for the client.

            Client before Self. Grisham’s book is laced with passages to the effect lawyers care little for their client. He would have the reader believe lawyers care first and foremost about their fee. My years of experience as a trial lawyer demonstrate lawyers representing injured people care first about their client. This is the first requirement for winning representation-belief in the client and in his case. This can only be done when the lawyer understands the impact of the injuries to the client. Total belief in the client is infectious-the jury feels the total belief and responds. The fee is secondary and takes care of itself.

            The Value of a Quality Lawyer. Generally people buy stereotypes of lawyers when they contemplate faceless lawyers with whom they have no relationship or when they have to deal with an opposition lawyer. When a person is faced with a legal need as in the need to take their case to trial to get fairness the person sees their lawyer in a different light. They see their lawyer as the vehicle for them to get the justice they deserve. The stereotypes break down as they see their lawyer has internalized their case to the point the lawyer knows more about the client’s case then anyone other than the client. It is then the client understands the value of a quality lawyer. Quality trial lawyers and their clients reading Mr. Grisham’s book will see it for what it is-a fictional version of trial lawyers that plays on stereotypes at the expense of reality.

              January 11th, 2012

              Opening Statement Thoughts

              Recently read a column in The Wall Street Journal titled The Fine Art Of Where To Start [a story] by Darin Strauss. Mr. Strauss says the most important part of a story is the beginning as in the first words out of our mouth in opening statement.

              Opening Statement Tells a Story. In a personal injury case the story involves an injury to plaintiff. Mr. Strauss says the first lesson in story telling is to remember “A story equals trouble.” The personal injury story must discuss how the trouble caused injury to plaintiff.

              Beginning the Story. Mr. Strauss  believes the sooner we introduce the trouble into the story the more likely our listeners (the jury) will pay close attention. To Strauss this means beginning the story with the critical action of the trouble. 

              Jacob Appel in Writer’s Digest reasons: “I started devoting an entire session of my writing class to opening lines when I realized that the last formal instruction I’d had on the subject was the grade school admonition that stories should begin with a hook.’” In the years since, I’ve come to believe that the fate of most …[stories] is sealed within the initial …[phrases]—and that the seeds of that triumph or defeat are usually sown by the end of the very first sentence.

              The Current Model. Quality lawyers and jury consultants teach to begin opening statement by telling the jury the story.  When telling the story David Ball advocates beginning with the rule then going to the story focusing on defendant rather then plaintiff. Mr. Ball usually begins the story before the trouble. In a factual narrative he teaches let the story unfold as it happened with plaintiff being introduced after defendant causes the trouble.

              Current Model Revised. We plan on tweaking the Ball model by beginning defendant’s impact caused by the trouble. We will state this in a thematic way introducing our theme with the impact caused by the trouble. This is similar to Ball’s model of beginning with the rule. After this beginning we will go to the narrative focusing on defendant. After the narrative gets to defendant causing the trouble we will introduce plaintiff as the victim of the trouble. 

                December 28th, 2011

                Movies Every Trial Lawyer Should See

                The week between Christmas and the New Year is a good week for movies. Below is my list for lawyers:

                To Kill a Mockingbird. A great book every lawyer should read and a great movie every lawyer should see. As usual the book trumps the movie, except the movie has Gregory Peck acting like every lawyer should act. If we follow the model of Gregory Peck we will look like a lawyer, talk like a lawyer, and have the demeanor of a lawyer at home, in the community and in the courtroom.

                My Cousin Vinny. This is a classic every lawyer will love. It’s funny, and it’s good. We see professionalism with the prosecuting attorney. We see a difficult judge. We see great cross examination. And we learn a whole bunch about the 1963 Pontiac Tempest which had positraction and was driven by the killers and how it cannot be mistaken for the 1964 Buick Skylark driven by Vinny’s cousin.

                Hot Coffee. This is a 2011 documentary begins with the infamous McDonalds case, tells the brutal truth about the case, and continues to document corporate America’s and the Chamber of Commerce’s methodical campaign against legitimately injured people and the judges who have the courage to rule  for the little guy. I pay every staff member who watches the documentary a $50 bonus.

                Witness for the Prosecution. This movie is worth watching because the great actor Charles Laughton plays the English barrister defending his client against a charge of murder. The movie has excellent cross examination scenes by Laughton. It is also fun to watch how a case is tried in England the land where our common law was born.

                Twelve Angry Men. This classic with actors including Henry Fonda, Jack Warden, Lee J. Cobb, Jack Klugman and E. G. Marshall is the best jury movie ever made. It gives all trial lawyers hope in that convincing one bright dynamic juror may mean winning the case.

                Compulsion. This movie is a must because it is a take off on Clarence Darrow’s life saving defense in the famous Leopold and Loeb thrill killing case. Darrow is played by Orson Wells who does a great job in playing the finest trial lawyer who ever lived. Darrow’s closing is recounted by D. McRae, The Last Trials Of Clarrence Darrow:

                “I am pleading for the future ,” he said huskily. “I am pleading for a time when hatred and cruelty will not control the hearts of men, when we learn by reason and judgment and understanding and faith that all life is worth saving, and that mercy is the highest attribute of man.” Darrow felt his own eyes moisten when he saw that [Judge] Caverly was crying…silent tears… powerful enough to alter the shape of the judge’s twiching mouth.

                “I was reading last night of the aspiration of the old Persian poet, Omar Khayyam,” Darrow murmured, as his own tears began to roll down his crevassed face. His voice, however, remained firm. “It appealed to me as the highest that I can vision. I wish it was in my heart, and I wish it was in the heart of all:

                So I be written in the Book of Love

                I do not care about the Book above

                Erase my name or write it as you will

                So I be written in the Book of Love.

                Darrow’s head was bowed, and his eyes were filled. And then aften ten long seconds, he looked up again and nodded to the judge. Slowly, Darrow returned to his seat, the silence following him with gathering force. The quiet held, as if no one dared break the spell.


                  November 25th, 2011

                  Seattle Times pushes Sovereign Immunity

                  The Seattle Times Mission Statement provides in part: “To be an independent and influential advocate for children, schools [and] safe and clean communities… .” Interestingly in its lead editorial of November 23, 2011 the Times puts forth an argument to return to a form of sovereign immunity where there would still be the ability to bring a legal action against the state, but  the remedy for a fault free plaintiff would be limited.

                  The Times editorial is contrary to its mission statement and a misguided argument that if carried out will harm its individual subscribers.

                  Sovereign Immunity. The doctrine of sovereign immunity  is literally a creature of English kings, meaning, “The king can do no wrong.” Fortunately Washington abolished sovereign immunity in 1961. This is because the principle that government must be accountable legally for the harm it directly causes to its citizens is a fundamental principle of our revolutionary history and the American republic.

                  Difficulty of Lawsuits. Although Washington State has waived sovereign immunity suing and recovering from the state or a municipality in Washington is not an easy task. The Seattle Times editorial argues our legal system is “too quick to settle and more generous then it should be.” The reality is when cases settle insurance company lawyers, state attorneys, or municipal lawyers have concluded a settlement is in the best interest of their client. When a jury provides compensation to an injured plaintiff  it is not out of generosity. It is because the injuries are real, and the jury concludes the amount of its award will fairly compensate the injured plaintiff.

                  Joint and Several Liability. The Times misleads its readers on Washington law when it says Washington law should be changed “so the state doesn’t have more exposure then private entities.” The law is the state has additional procedural protections beyond private entities. Substantively it is on the same footing as a private entity.

                  What the Times wants is an end to joint and several liability as we have it today whenever the state or a municipal entity is a co-defendant in a lawsuit. The law as it stands allows joint and several liability to a fault free injured plaintiff when two or more defendants are liable. Under joint and several liability if the damages to a fault free plaintiff  are $100,000 with one defendant causing 10% of the negligence and the other causing 90% the plaintiff can take the $100,000 from both defendants or one defendant. If the state is 10% negligent and the other defendant is insolvent then plaintiff can still recover his $100,000 from the state.

                  The Times would change the law so the state would only be responsible for $10,000  of the $100,000 in damages. If the 90% liability defendant is insolvent the fault free plaintiff is precluded from collecting 90% of his judgment.

                  Unfair Result. The Times ignores its mission statement in calling for an end to joint and several liability when the the state is a co-defendant. Fault free babies, school children and common members of the community would in cases of an insolvent defendant be left with a partial recovery when the state is a co-defendant. Under our law as it stands the fault free injured person receives a full recovery. At times this does mean the co-defendant state pays all of the judgment. But when this happens the state has been found to be negligent and plaintiff has not. Unwittingly the Times is arguing against the babies, children and common members of the community it says it is an advocate for.

                    November 16th, 2011

                    Jury Duty-Making Roads Safer

                    Recently in the Seattle Times there was an editorial titled Making Seattle roads safe for all. The editorial states about 26 people die each year in Seattle from traffic injuries. Thousands more are injured each year in automobile collisions.

                    The editorial reasons a combination of factors are involved in collisions that result in injury: impairment, speed, distraction, inattention, following too closely, and failure to yield to name a few. As pointed out in the editorial “these are not accidents.”  These are injury collisions that could have and should have been prevented.

                    The editorial says what is needed to make our roads safer is to adhere to the “E’s of traffic safety-education, enforcement, environment, and empathy-because it will take a multifaceted approach to fix our roads… .”  When we apply these “E’s” to the civil justice system we see juries have a role in making our roads safer.

                    Education. When a collision is caused by the negligence of another driver our civil justice system provides for damages to the injured driver. When fair damages are awarded by the  jury the negligent driver is educated on the reality his negligence will result in paying compensation to the injured party. This also has the effect of educating society beyond the parties in the lawsuit. When a jury speaks society listens, and the message when compensation is awarded to the injured driver is negligence has a consequence.

                    Enforcement. When a negligent driver causes injury to another he generally receives a traffic citation. Usually a relatively small fine is paid- small in relation  to what has been done to the injured driver. When the negligent driver fails to account for his negligence he often ends up in a civil trial. When a jury provides fair compensation for the injured driver we have a higher level of enforcement. We have enforcement where the amount of damages paid by the negligent driver directly relates to the damage he caused.

                    Environment. In some cases the injury is caused by unsafe road conditions that the city, county, or state could have and should have made safe. When negligence is proved against the government, and fair damages are awarded, the government is held accountable for negligently allowing an unsafe environment. This in turn causes the government to be more diligent in ensuring a safe environment, because to not do so will result in a financial consequence.

                    Empathy. In our civil justice system this means caring for the parties in the case. When the plaintiff has been left with injuries through no fault of his own the caring thing to do is provide him with fair compensation. This is what the law provides, and in this way the law has empathy. Jurors are the caring arm of the law in a negligence case.