This post discusses the traits of a good lawyer.

Helping People. A good lawyer cares about people. Law is a people  business, and a good lawyer likes people. He enjoys being in a  profession where he can make a difference in a person’s life by  taking care of a legal problem. He understands a legal problem  creates stress, and one of his roles is to reduce stress to his client.

A Listener. A good lawyer is a good listener. When he is meeting  with his client he focuses on his client. He listens attentively. He  internalizes what his client tells him  so he can identify with his  client’s legal situation.

Willing to Help Potential Client. A lawyer talks with a potential  client before taking the case. A good lawyer  discusses the client’s  legal situation in a meaningful way even if he choses not to take the  case. Often he will refer the potential client to a lawyer better equipped to take the case. When the legal problem is one where the potential client can solve herself the good lawyer tells him her how to do it herself. On simple matters the good lawyer does this without charging a fee.

Standing for Justice. The good lawyer stands for justice and speaks out when something is illegal or unfair. He does this even when speaking out will be at his peril. This is because the right to fairness runs through the veins of the good lawyer. This also means the good lawyer defends unpopular people and causes. He does not judge his client. He represents his client with all his ability knowing she is entitled to the best representation without the personal judgment of the lawyer.

Fairness in Fees. The good lawyer has a sense of fairness when it comes to attorney’s fees. He does not automatically charge all he is entitled to charge under his fee agreement. In a contingent fee case he does not make more then his client. In an hourly case he discourages litigation when he can obtain a fair result regardless of being able to make a higher fee going to court. In a flat fee case he ensures his fee bears a relationship to his work and the value of the result.

Professionalism. The good lawyer cares about the legal profession. He realizes young lawyers are the future. He mentors and helps young lawyers become good lawyers. The good lawyer is courteous to opposition lawyers. He treats them with respect and as equals. The good lawyer is pleasant to legal staff, to court staff and to judges. He remembers the motto “You never know who you are being nice to.”

Sleep Well. The good lawyer sleeps well. This is because the world is a better place because of how he practices law. In spending his time helping people, he has benefited his client and society. The fees he has made are fair in relation to what he has given back to his clients and to society.

This post discusses Clarence Darrow’s trial preparation and delivery.

Preparation. The greatest twentieth century lawyer is Clarence Darrow. In The Last Trials of Clarence Darrow, Donald McRae gives insight on how Darrow prepared for trial: As Darrow prepared for trial crumpled balls of paper were strewn across his desk “and on the floor around him as he drafted chunks of the marathon speech with which he would use … [at trial]. Darrow would speak as always without notes.” McRae teaches Darrow’s “familiar illusion of conversational ease was crafted by laborious preparation. Although he did not write out his actual speech, he polished and burnished individual passages around which he would weave his flowing pattern of words… .”  In preparing  first write out the points you want to make. Write using lines instead of punuction/Then/ read it back/ time and time again/ using your lines/ for cadence/

Internalize your message.  Internalize by imagining delivering your message in the courtroom. Imagine where you will stand.  Image looking at the jurors. From McRae we learn Clarence Darrow internalized his message before trial, then, when he got into the courtroom:  “He was flying now, the words flowing from him without a single note in his hands. They came from deep within him, from…[his] very core. .. The words fell from him in quiet murmurs and roaring cries… .” This level of advocacy can only be done from the heart after the message is internalized.

Face to Face Without Notes. Notes put a barrier between lawyer and jury. For the highest level of advocacy in relating to the jury Clarence Darrow in his “habitual way [would walk] over to the jury so they could see his face in close-up and hear his sofest words. It would as always with Darrow, sound as if he was in a private conversation with each of the men.” This can only be done without notes. Notes wed the lawyer to a plastic pre-agenda that prevents spontaneity. Clarence Darrow  talked form his heart and from his inner core. Although he knew in advance what he wanted to say the message flowed naturally in conversation when he related to the jury.

Believe in Yourself. After weeks of preparation, and believing in his case and in himself, Clarence Darrow knew he had his cause internalized and he would flow naturally: “After forty years in the courtroom, he just needed to uncork all his emotional intelligence and let it seep into the hearts and minds of [the jury he had] selected with utmost care.” In the end Darrow knew it was his preparation and belief in himself that would be his foundation. “He would rely on  a rough old mastery of sentiment and language, which no book could teach.”

(All quotes taken from Donald McRae, The Last Trials Of Clarence Darrow (2009).

In this post we visit factors that relate to rear end collision injury in the context of the biomechanical expert.  We learn these factors from peer reviewed publications many written by biomechanical engineers.  These factors are the foundation for the cross examination of the bioengineer.

Speed of Bullet Vehicle. The factor we all relate to is the speed the rear ending car is traveling at the time of collision.  In 1989 Morris, in The Archives of Emergency Medicine, reported “rear end impacts as little as 5 mph can give rise to significant symptoms.”   Injury results from the acceleration of the head,  not the vehicle.  Credible biomechanical engineers know head acceleration results from many factors beyond vehicle speed, and  it is too simplistic to conclude lack of  injury from vehicle speed. Low speed collisions can and do cause injuries.

Lack of Apparent Vehicle Damage and Injury.  Since the mid 1980s  bumpers have been required to withstand impacts of at least 5 mph. Manufacturers insure compliance by overdesigning their bumpers so they can withstand impacts  greater then 5 mph. Thus, no bumper damage does not necessarily mean a collision of 5 mph or less. Because low speed collisions can result in injury, to say there is no injury because there is no or minimum bumper damage is a misstatement of biomechanical reality.

Expectancy. Not being prepared for the impact, which is the most common scenario, increases the likelihood for injury.

Preexisting Spinal Degeneration. “[I]t is known that the majority of older aduls have some degree of cervical spinal degeneration.” Tencer,  A Comparison Of Biomechanical Mechanisms Of Whiplash Injury From Rear End Impacts. (Quote from full article). Having pre-existing lumbar spinal degeneration predisposes victims who suffer neck pain after a low speed rear end collision to neck injury and to additional symptoms such as arm numbness, pain and tingling, or low back pain. 

Head Position at Impact. “When the horizontal distance of the head to the head restraint is increased… the velocity of the head as it hits the head restraint is increased. This is because the torso impacts the seatback leaving the head to fall backward as the torso is thrust forward.”   Tencer and Mirza, Whiplash Mechanics in Low Speed Rear-End Automobile Collisions. This then increases cervical spine flexion loading during whiplash which makes injury more likely, since it is head acceleration that causes injury.  Studies also show ” a rotated and/or inclined head position, and not being prepared for the collision were related to multiple symptoms including headache, neck pain, and shoulder pain.”  Frontiers In Whiplash Trauma, at 393.

Trucks and Stiffer Vehicles. Trucks or truck frame vehicles, usually have heavy duty bumpers and stiff frames, and tow bar and trailer hitch vehicles, absorb less energy into the vehicle in a rear end collision. This results in more energy being absorbed by the vehicle occupant causing a higher potential for injury. Likewise the stiffer the seat the higher the likelihood of injury. “Several studies have shown the advantages of yielding seats in low-speed rear impacts.” These softer seats occur more often in car models from the early 1980s. Frontiers at 106. As far as the bullet vehicle “a heaver car increases the risk of disability to occupants in the struck car.” Frontiers at 108.

On Bioengineers. “Engineers can calculate the magnitude of forces involved and might speculate as to what may or may not have happened to and in the vehicle. What they cannot do is stipulate what happens in the patient’s body.” Frontiers at 5. Moreover, “[s]ince the shape of the impact pulse [crash pulse] seems to have an influence on the severity of the neck injury, it is not appropriate to use only the amount of kinematic transferred energy as an injury risk indicator.” Frontiers at 110. In peer reviewed studies under laboratory conditions the biomechanical expert knows the crash pulse. Rarely if ever when that same expert testifies in a personal injury trial does he know the crash pulse involved in the collision at issue. Thus, he is violating the maximum from  the above quote in Frontiers In whiplash Trauma, and the testimony should be excluded.

Hopefully this post and the last assist in drafting your cross examination of the biomechanical engineer.

I recently took the deposition of a Biomechanical Engineer in a rear end collision case. He is a university professor who has made a second career doing expert witness work for insurance defense lawyers.  In essence he ends up with the opinion “that since the  forces acting on [the plaintiff] in the accident  were very low, relative to forces experienced in daily living, my conclusion is that the accident is not  a likely source of significant forces acting on [plaintiff’s body].”  

I have now seen two reports from this expert and the conclusions as well as most of the reports are exactly the same language. He is cookie cutting his reports and testimony to destroy legitimately  injured plaintiffs in low impact rear end collisions.

The next two posts assist in destroying a biomechanical engineer using his own and other peer reviewed studies. We begin by discussing what biomechanically happens to the spine in a rear end collision.

Occupant Motion In Rear End Collisions. In the words of defense biomechanical expert Allan Tencer, there are four motion phases affecting the spine (mostly the cervical spine) in a rear end collision. As each phase presents different motions of the occupant, each phase has a different injury-causing mechanism. The four phases  are explained by Tencer et al. below. (For a simpler analysis see Four Phases of Whiplash).

Retraction Phase. In the retraction phase, the upper torso is pushed forward by the seat back while the occupant’s head remains nearly stationary. Consequently the cervical spine takes on an S-shape by forcing the lower part of the neck (C5-C7) into a pronounced  extension while the upper part is in flexion.  The retraction phase ends when the maximum neck flexion and torso extension (maximum relative translation of the head and torso) is reached. This is an important injury mechanism as a pressure spike in the spinal canal is caused by the rapid  translation between C1  flexion with respect to T1  extension during retraction. See The Neck Injury Criteria (NIC) (developed to quantify the risk of whiplash injury during the four phases of whiplash).

Extension Phase. The extension phase begins after the head reaches maximum translation and then is pulled forward by the thorax. The rotation causes the upper cervical motion segments to join the lower motion segments in extension orientations. An important injury mechanism associated with this motion is hyperextension. Injury potential is measured by the extension movement beyond normal range of motion.

Rebound Phase.  The rebound phase occurs after the occupant’s head contacts the head restraint. Head restraint rebound causes the highest head translational acceleration to occur, as well as peak axial and shear forces. The cervical spine is known to be particularly vulnerable to injury when significant torque movements are combined with significant shear axial forces.

Protraction Phase. The protraction phase occurs after rebound when differential motion between the head and torso are reversed. This phase becomes significant when the forward motion of the upper torso is arrested  as the “seat belt begins to tense over the pelvis and the thorax… when the body returns to its original position, producing a violent flexion of the neck.” NIC.  Mechanisms associated with this motion are similar to those in the retraction and extension phases when the cervical spine translations form  an S-shape toward full flexion. A pressure spike in the spinal canal  is discussed in the NIC.

Pressure on Cervical Spine. The NIC  states  the highest pressure oscillations are are in the “shift from the s-shape to the extension, and the highest pressures were registered at the level of the C4 vertebra during the s-shape.” Now the “most accepted cause of whiplash injuries … is hyperextension… in the lower part of the neck during the formation of the s-shape (vertebrae C5, C6, and C7).” Tests by Panjabi et al. (and others cited by NIC) reveal intervertebral  movements exceeded physiological limits, which causes “lesions in the capsular ligaments and facet joints at the  C5-C6 level.”

In the next post we discuss factors that provide the foundation for cross examination or the biomechanical engineer.

Recently  two things happened to lead to this post on Professionalism.  First I received a haircut from Charlotte a young hair stylist in training. Second, I read a law review article by Professor John Nivala, Zen and the Art of Becoming (and Being) a Lawyer, 15 UPS L. Rev. 387 (1991). Professor Nivala draws from his reading of Zen and the Art of Motorcycle Maintenance to discuss practicing law at the highest level. Here I draw from Charlotte and Professor Nivala to discuss Professionalism in the practice of law. By Professionalism  I mean doing what you do at the highest level.

Passion. The first requirement for Professionalism is passion. A  professional loves what she does. With young Charlotte being a hair stylist is her first career choice. She is a college graduate choosing to be a professional hair stylist. The best lawyer is a lawyer who loves what she does. This means she is passionate about helping  people through legal representation.

Immersion. The  professional immerses herself in her work. She forgets about all else except her project. She becomes one with her work. I observed young Charlotte in this zone of immersion while she focused on my hair. A Lawyer at her highest level enters a zone of focus where she loses track of time, she loses track of outside stimulus, and there is no separation between her and her work.

Creative. There is no road map or set pattern for a professional. Charlotte was cutting a man’s hair for the first time. My hair grows different ways in different places. She made decisions as she cut on how to style based on what she had learned and on her creative instinct. The result was a great haircut. The lawyer practicing at her highest level does so without set instructions. Rather the nature  of the material determines her thought and writing, which simultaneously changes the nature of the material she produces. See Nivala.

Growing. When I reflect on Charlotte it is clear she is evolving. She will continue to grow. She will continue to create. According to Professor Nivala the able lawyer is an artist capable of improvisation. Although grounded in tradition, the able lawyer responds to every new situation in a way she is open to new viewpoints and solutions. Thus, the practice of law for the professional is an art. An art that commits the lawyer to “a lifetime of continuous adaptation and learning.” Like young Charlotte the professional lawyer produces quality through passionate immersion with a disciplined imagination.

In most personal injury cases a significant factor of case value is non-economic damages, also referred to as general damages. Juries are instructed to provide compensation for non-economic damages if they are demonstrated at trial.

In most states general damages include disability, pain and suffering,  loss of enjoyment of life and disfigurement.  A knowledgeable lawyer breaks down these elements separately and assigns a value to each. This makes sense as each element if present requires separate compensation.

Disability. Disability is present when the injured person lacks the ability possessed before the injury to perform work or tasks of living.  In a disability situation this is usually because of range of motion limitations or strength deficits resulting from the injury. Disability may be physical, but it can also be mental (such as in a brain injury case).

Pain and Suffering. Pain and suffering compensates for physical (pain component) and mental (suffering component) problems resulting from the injury. We all know what pain is having learned this as babies.  Suffering is the emotional component of mentally dealing with the injury.

Loss of Enjoyment of Life. To understand why loss of enjoyment of life is a separate element of general damages consider disability compensates for the inability to lead a normal life.  Pain and suffering compensates for the physical and mental discomfort of the injury.  Neither compensate for the loss of specific artistic, athletic, or unique skills possessed and lost, or loss of the ability to perform at the same level, because of the injury. Thus, when plaintiff has lost the ability to actualize special talent possessed before injury the jury is instructed to provide compensation.

Disfigurement. This is apparent to the jury. Disfigurement includes a scar,  a missing external body part and/or physical changes resulting from the injury.

Past, Present and Future. The jury is instructed to provide compensation for any element of general damages from injury to trial, for what exists at trial, and for what will exist into the future.  Significant perssonal injury cases usually involve an element of general damage that is permanent. Here the life expectancy of the injured person is considered. Usually the younger the plaintiff the more value to the injury. This is because of a longer life expectancy for enduring the element of the general damage.

Money as Compensation. The only way the law provides for compensation for personal injury damages is by way of a jury verdict in the amount of money the jury collectively believes is fair and reasonable given the injury. At times we read about a significant jury verdict.  In the abstract without knowing the facts this may seem like too much.  In reality the verdict amount is rarely too much. The injured plaintiff will always trade the amount of the verdict for their condition before the injury. Nonetheless,  a money verdict gives dignity to the injured plaintiff and represents a statement from the community that a negligent person is  financially responsible for their negligence. This makes us a civilized society.

I recently received a comment to a blog post where the writer quoted the bumper sticker “I can slam on my brakes and sue you.” In this post is my response:

Misunderstanding of Tort Law. As the great jurisprudential scholar Oliver Wendell Homes says: “The law should make common sense.” Well it does when we legally analyze the slam on my brakes and sue you statement.  In this situation the brake slammer loses the lawsuit. The law does not provide an automatic recovery to one who is rear ended. In fact under tort law a person who slams on her brakes for no reason (except to bring a lawsuit) loses and is responsible for the damage to the following driver. On top of this the brake slammer will not be covered by her insurance. This is because auto insurance insures against negligence not against an intentional wrong.

Force of a Rear End Collision. The writer of the comment fails to recognize the force and resulting injury potential in a rear end collision. A rear end collision can cause serious injury to both drivers. All of my clients in rear end collisions would  give back their recovery in exchange for their pre-injury condition. Added to this is the moral issue of intentionally causing a collision, in a misguided attempt to abuse the law, and causing injury or damage to an innocent fellow human being.

 Some People Actually Believe This. As a personal injury lawyer trying automobile collision injury cases to juries it is important for me to recognize there are people who believe the statement of our comment writer. In my next jury trial I will ask potential jurors if any agree with “I can slam on my brakes and sue you.” This will allow me to identify jurors who believe most lawsuits are a meritless attempt to get money. Once identified I will go into the thought process with the potential juror  which may lead to a successful challenge for cause. “Given your feeling that personal injury lawsuits are often meritless, do you agree it will be fairer for plaintiff if you sit on a jury in a different type of case?” If challenge for cause does not work then a peremptory challenge will have to be used.

Happy and Sad. I am happy to have seen and thought about the slam on my brakes comment as it will allow me to better engage during  jury selection. I am sad a person may actually think and believe this. No competent personal lawyer would represent such a person.  First, the brake slammer is liable in tort. Second, there will be no insurance coverage to pay as automobile insurance covers negligence not intentional tort. Third, there is no consideration for the other guy who is injured/damaged because of a misguided attempt  to abuse the law. Finally, the brake slammer could and should face criminal charges for vehicular assault which means jail time.

When I win I do little reflection on how I tried the case. I take the win as affirmation I have done a quality job and assume I have it down. When I lose I do a lot of reflection. I revisit the trial from jury selection through closing argument critiquing my work. From this I learn and get better.

This year the University of Washington football team has high hopes largely because of the return of Jake Locker. Locker was projected to be a first round draft pick in this year’s NFL draft. He turned down the opportunity and returned for his final year as quarterback. Locker and the team have started 1 and 2 with his last game being one of the worst of his career. Recently I read a story/interview of Jake Locker. He has wisdom beyond his years from which we can learn:

Right after a Significant Defeat. Obviously you think about it right after and review what happened. “But if you dwell on it it’s going to continue to beat you.” The most important thing is getting back to work and working toward the next contest.

Wondering What If. There is nothing you can do about it once it is over. So you don’t gain anything wondering what if.

Questioning  Yourself. Trust  the fact you made the decision to [play football/try cases] because you believe in yourself and this is what you want to do no matter what the outcome. Obviously it is tough to lose, but make it a loss to learn from and get better.

Get Back to Work. After the loss get back to work as soon as possible. Uncover your mistakes and correct them. Prepare for the next contest taking lessons learned from defeat.

Win the Next One. Return with the attitude the loss is behind you. There are trials to look forward to and prepare for. Keep  practicing hard, preparing well, and go into it giving your best effort.

With this attitude the wins will come. 

Insurance companies dislike the personal injury lawyer when  he challenges their evaluation of the case, because he has the ability to get fairness from a jury. Insurance companies dislike personal injury trial lawyers who are organized in a trial lawyers association because they have the ability to challenge insurance company legislative agendas. Thus, several years ago insurance companies launched a propaganda campaign against personal injury lawyers. I refer to the campaign as:

The Two Big Myths

The Frivolous Lawsuit Myth. The hook for  the insurance propaganda campaign against personal injury lawyers is “the frivolous lawsuit.” The poster child for the “frivolous lawsuit” is the McDonalds hot coffee case.  Although the jury went into the case wondering why they needed to be involved in a coffee spill case, after hearing the evidence, they rendered a verdict of 2.7 million of which 2,5 million was for punitive damages. The judge later termed McDonalds conduct reckless, callous, and willful, when he lowered the total judgment to 640,000.

Nonetheless, insurance companies fueled and continue to fuel the perception that frivolous lawsuits are a significant problem in our society. This creates the perception that many cases where an injured plaintiff seeks compensation for her injuries are without merit. But reviewing our prior post on how the personal injury lawyer takes the case on a contingent fee, demonstrates it does not make economic sense for a personal injury lawyer to bring a meritless case.  A meritless case is a losing case,  and this means no fees to the lawyer.

Juries are smart. They do not compensate unless compensation is merited under the facts and law of the case. Personal injury lawyers know this and they know they better have a solid case. Nonetheless, insurance companies calculate if the public believes frivolous lawsuits are rampant then some members of a jury panel may believe it too. This means it will be more difficult for an injured plaintiff to get a decent recovery. Playing the odds it pays for  insurance companies to propagate the frivolous lawsuit myth.

The Greedy Trial Lawyer Myth. Going hand and hand with the frivolous lawsuit myth is the greedy trial lawyer myth. Here insurance companies bring out their greedy trial lawyer propaganda when they are trying to defeat legislation that will hold them more accountable or when they want legislation that will place ceilings on a jury result.

In Washington we saw the greedy trial lawyer propaganda when insurance companies fought the Insurance Fair Claims Act. This act makes it illegal for an insurance company in Washington to deny insurance coverage to its own insured when the coverage should be provided. The insurance companies’ propaganda campaign argued if the law passes greedy trial lawyers will bring frivolous lawsuits to get undeserved attorney’s fees. Washington voters saw through the propaganda and passed the law.

From a trial lawyer standpoint, in a personal injury case, the lawyer is working on getting fair case value in settlement or trial with the insurance company and lawyer for defendant. The last thing he wants is to have to fight a battle on two fronts meaning also litigating against the insurance company of his client.  Thus, the greedy trial lawyer propaganda makes no sense in the context of Washington’s Insurance Fair Claims Act.

Propaganda is irrational when exposed to the facts. Nonetheless, if the propaganda message is said often enough some will believe. This is playing the odds. Rest assured, insurance companies will continue to play the odds.

Personal injury lawsuits are a threat to insurance companies because each represents the possibility the injured person will receive the compensation a jury believes the injured person deserves which is often more than the insurance company has offered. A New York Times study on cases that do not settle and go to trial reveals 61% of the time when the plaintiff turns down a settlement and takes the case to trial the plaintiff loses. The study finds  24% of the time when the defendant turns down settlement and proceeds to trial it loses. (15% of the time both sides were right in proceeding to trial meaning plaintiff beat defendant’s offer and defendant beat plaintiff’s offer -the in between result).

Interestingly when the plaintiff losses his average loss is $48,000. But when defendant refuses to settle and goes to trial the average loss is $1,100,000. This means it is the insurance company that is the party who significantly under values the case (at least 24% of the time). And it is the personal injury lawyer who calls the insurance company bluff and gets his client what a jury says is fair.

The New York Times Study presents the the obvious question: When do I have a 24% of the time lawsuit that the insurance company has undervalued. I believe the answer lies with the injured plaintiff and his or her story. As we have seen in prior posts the injured plaintiff must be true to life, realistic, totally honest, have injuries a jury can relate to, must attack the injuries, and the injuries must be too significant to overcome. Added to this must be a compelling story.

The problem the insurance company has with such a case is the problem they have with all cases. They are statistically driven. They are generally unable to appreciate a  hero type injured plaintiff who has a compelling true to life realistic story. Rather, they evaluate  cases systematically based on numbers and statistics. They ask what is the age and gender of the plaintiff? Where is the trial going to occur? What is the amount of the medical bills? Who are the medical providers? Do we have any type of liability or mechanism or injury argument? Who is the lawyer? They then analyze, evaluate and try the case based on their numbers and statistics.

When the case presents with an honest likable plaintiff, with legitimate permanent personal injuries, combined with a compelling story, the insurance company will likely fail to appreciate the case. This is a case that must be tried to get fairness. The personal injury lawyer is the one who can do this. When the trial is done and the injured plaintiff receives fairness it likely will be more compensation than the insurance company offered.