March 21st, 2012

Offensive Innovation

Offensive Innovation comes from Gerry Spence and Stephen King:

 Speaking to experienced trial lawyers at the Trial Lawyer’s College Gerry Spence explains we have yet to try our first case because we have been practicing law and trying cases in a way “that is expected of us.” 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.

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.”

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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.

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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.

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January 11th, 2012

Opening Statement Thoughts

Darin Strauss in The Fine Art Of Where To Start [a story] teaches the most important part of a story is the beginning as in the first words out of my mouth in opening statement. In Opening Statement I Tell a Story.  In a personal injury case the story involves the injury to my client.

When telling my story I remember “A story equals trouble.” My personal injury story must discuss how the trouble caused injury to my client.  Strauss teaches the sooner I introduce trouble into my story the more likely my listeners (the jury) will pay attention. This means beginning the story with the  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.”

 

 

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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.


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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.

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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.

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November 9th, 2011

Social Networking and Law

In the movie Social Network Sean Parker says: ” When you go fishing you can catch a lot of fish, or you can catch a big fish. You ever walk into a guy’s den and see a picture of him standing next to fourteen trout?”

The movie is a fictional version of how Facebook  was started. Today it is a rare client who does not have a Facebook page or some type of internet presence.

Defense lawyers and insurance companies know this. Defense lawyers and insurance companies may use your client’s Facebook and/or internet postings to hurt your case. The harm can turn the case from a big fish to a little trout. This is why it is necessary to discuss the internet with our client.

Clients need to know that once a thought is posted on line regardless of whether it’s Facebook, a website, or an e-mail the post is available to the internet world. The rules of discovery allow the defense lawyer to request postings on the internet. Defense lawyers often seek production of internet social network postings, e-mails, and website postings.

Clients need to know there is nothing private on the internet. Clients need to refrain from posting any thought they do not want the world to know. On internet postings including e-mails follow these rules:

1. Never post content you do not want the whole world to see.

2. Never post when angry.

3. Think before the post is submitted.

4. Never post about your case (before trial/settlement, during, or after).

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November 2nd, 2011

Try the Case

To be effective a personal injury lawyer must be prepared to try the case. This post discusses the mentality of insurance companies and why filing the case is usually the only way to get a fair resolution for our client.

The Insurance Company. In a personal injury case the defendant is an individual or corporation in name but in reality we are pitted against an insurance company. Insurance companies deal in predictability. Insurance companies appreciate personal injury cases that present risk. A personal injury case  presents risk when it is going to trial.

The Traditional Model. Under the traditional model, the lawyer sends the insurance company a settlement demand before filing the case. This model evolved years ago when insurance companies were doing well on Wall Street from investment of their premiums beyond reserves. In recent years this has not been the case, so insurance companies are no longer willing to pay fair value for a non filed case that is presented for settlement.

Today’s Model.  The way to get fair value for the case today is try the case. Cases that must be moved to trial are cases where the client has permanent injuries and the insurance company fails to offer policy limits or an amount equal to a fair trial result. Limits will not be offered unless it is clear to the insurance company the case has a value in excess of limits. Even then the insurance company may not offer limits unless it knows the lawyer is a lawyer known to try cases. Under today’s model often the best course is to forget trying to settle the case and file it without discussion with the insurance company.

Settlement. After the case is filed and prepared for trial then it may be ready to settle. The mind set must be “I am going to try this case, and I am ready to try this case.” At this point we deal from a position of strength and the insurance company knows this. This is the point that settlement for fair value is possible. Fair value is the amount we believe the jury will pay minus the additional cost that will be incurred if the case proceeds to trial. When the insurance company fails to appreciate the case, proceed to trial.

Trial. Try the case at the highest level. In opening tell the jury the story with a straight forward factual narrative beginning with the defendant’s conduct. For plaintiff’s case have lay witness testimony from witnesses with significant knowledge of plaintiff and the liability facts. For the injuries present expert medical testimony from the treating physician whenever possible. In cross examination stick to major points remembering short is better then long. Rarely object, show professionalism and spontaneity. In closing introduce appropriate emotion and passion. Propose a verdict that is reasonable and show how it will make life better for all.

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September 22nd, 2011

Discover the Story

I just finished a three day seminar taught by Bob Dawson and Mark Wagner. Both are successful personal injury lawyers. Both are graduates of The Gerry Spence Trial College. Although the seminar was not part of the Gerry Spence Trial College, it is clear both have changed how they practice law based on what they learned at The Trial College.

Discover the Story. At the seminar Bob and Mark stressed representation of a personal injury plaintiff cannot be done at the highest level unless the lawyer takes the time to discover the client’s story. The client’s story consists of the emotional components of their injury.

Listen. The client must reveal the significant emotional moments of her injury. Getting this to happen is the first step in becoming a quality trial lawyer. The key is to internalize our client’s emotional moments related to her injury. The only way this can be done is to listen to the client. The tendency is to illicit facts of the case from the client, and soon begin to fill in the facts with how we interpret the facts. We learn as early as law school how courts interpret facts. We want our client to have a case similar to other successful cases so he processes our client’s story like a successful personal injury case.  Thus, the story at least partially becomes our story. Once this happens our client’s story loses it’s emotional impact-it becomes a factual lawyer’s version. This causes the story to lack authenticity. The jury picks this up. The result is either bad or at best less than what the result will be if the story is told from the heart having internalized its emotional impact.

Your Story. Dawson and Wagner also teach to try a case at the highest level we must know our own story. This requires us to get in touch with our client’s emotions through relating to our own similar emotions. This means our betrayals, loves,  successes and failures.By doing this we are able to walk in our client’s shoes with honesty and reflection. Here we relate at the highest level with our client and the jury.

Honesty. Honesty must permeate our case from jury selection through closing argument. When we suffer defeat in a jury trial the tendency is to see the jury as a “bad jury” as if it is the jury that failed to appreciate our case. In reality it is our fault in failing to appreciate the case. When we tell the story on a surface level without demonstrating the emotions that accompany the story we leave the jury with an empty story. The jury responds with empty appreciation. When we get to the emotional level reliving the significant emotional moments of the injury we recreate what happens to our client. It is raw, it is real, it is full. The jury responds with a full result.

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