March 7th, 2012

My Mantra

In 2010 I posted a Thought of the Week termed Philosophy of Navy Squash. This philosophy has become my mantra. I personally go through the Navy Squash motto on a regular basis, especially before and during a trial.

Prepare for Your Mission. To try the case we must know the case. This means knowing our client’s story. Our client’s story starts with knowing our client’s background, unique activities, especially those impacted by her injuries, the mechanism of injury, her treatment and our client today. Once we have internalized our client’s story and can discuss it from the heart we are prepared for our mission.

Believe in Yourself. To succeed in trial we must have confidence in our ability to advocate our client’s case. We must believe as in know we can do the job. This comes from a combination of thorough preparation and self acknowledgment of being a capable and effective trial lawyer.

Accept the Possibility of Failure. It took me a while to understand  this third prong of the Navy Squash motto. We are programmed to prepare to win and think we will win. But to win we must be ourselves. To be ourselves we must overcome the natural fear of being disliked by the jury. Accepting the possibility of failure allows us to relax and try the case naturally. Stated another way accepting the possibility of failure divorces us from being result orientated during trial. We are at our best when we forget about possible results and focus on the trial moment doing the best we can in the trial moment. Before a trial I have a silent communion with myself in essence a mediation where I acknowledge and internalize the possibility of failure. This is an important step in reaching the state I need to be in in trial-freely living in the trial moment.

Give Your Best Effort. This is different than believing in yourself. This is the doing part of the equation. This means living the trial from start to finish. Although it is essential to prepare for the trial, all trial lawyers know a trial takes a life of its own. We must adapt as this occurs. Adaptation means fine tuning and at times retooling in the day during trial and at night before the next trial day. Giving our best effort means a solid focused work effort from start to finish.

Never, Never Quit on Yourself. The great trial lawyer Paul Luvera teaches trial is a battle. There will be times when the other side is scoring points. There will be times when things do not go as planned. There may be times when things go bad. The key is to never stop battling. The Navy Squash team built its winning tradition by contesting every point to the end.  We must do this in trial.

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March 4th, 2012

First Week of March-Human Dignity

Recently my wife and I helped serve food to tent city homeless people. We did this through the Rotary Club of Downtown Kirkland. We served at a local church where the tent city is located. When serving the food I felt the homeless people enjoyed the occasion beyond the food, but it didn’t hit me on what it was until we heard back from the church minister.

When the minister gave us feed back he did not mention the food. He discussed how the tent city people appreciated us taking the time to serve them. When hearing this it clicked: The tent city people appreciated being treated with dignity. The food was an after thought.

It today’s difficult times we see a lot of people who are having hard times. We see homeless people. We see people who have no employment. We see people who have employment below the status they once enjoyed.

While most of us lack the ability to right the economic wrongs that have befallen many people, we all have the ability to give people what they desire most: Dignity and Respect. Take the time to recognize your fellow man. Couple the recognition with a showing of respect. Taking the time to give another the dignity they deserve as a fellow human being is taking the time to give a gift we can all give-the gift  of human dignity which in the end means the most.

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February 29th, 2012

When to File the Case

Although the majority of personal injury cases settle, it is often necessary to file the case and move toward trial to get fair value from the insurance company. File the case when:

Difficult Insurer. Rule number one is file the case as soon as you know the adjuster does not appreciate the case or the insurance company is one where fair value is rarely if ever paid without being willing and able to try the case.

Significant Injury. In many significant injury cases it is necessary to file to get a fair result. In significant injury cases where the insurer is expected to pay a lot of money the insurer  will want to go through the steps of discovery before it will pay fair value. Litigation allows the insurer to take depositions of key witnesses particularly plaintiff and expert witnesses. Also the insurer by getting its lawyer involved is more comfortable paying a significant amount because it gets the picture of what will happen at trial.

Low Policy Limits. When there are policy limits less than estimated case value, and insurer refuses to promptly tender following limits demand, file.  Here the insurer has made a mistake. Proceed to trial and get the fair value of the case. The foolish insurer is on the hook for the entire amount, because refusing to tender limits is bad faith.

High Policy Limits. When the insurer’s insured has limits that likely exceed case value it is usually necessary to file the case. This is because the insurer has no fear. An insurer with no fear is an insurer that will under pay the claim. The only way to get full value is to demonstrate to the insurer the qualities of the case by way of heading to the courthouse. Then and only then will the insurer consider paying fair value.

Low Ball Offer. At times it seems the adjuster wants to be fair and pay fair value without filing. The truth emerges however when a ridiculous offer follows a fair demand. Here the insurer will never get to fair value until it sees you can and will try the case. It is a waist of time to negotiate after a low ball start by the insurer.

Comparative Negligence. When the adjuster tells you out of the box your client is partially responsible and there is no basis for this poppycock file the case. This is similar to low ball offer with the difference being the adjuster does us a favor by telegraphing sooner rather than later a low ball offer is coming.

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February 26th, 2012

Fourth Week of February-The Universe as Living Order

It is worth while to read and contemplate ancient philosophers and their way of seeing the universe. To the Stoics the universe is perfectly made. It is logical and divine. According to Cicero: “It remains no less true that nothing is more perfect than this world, which is an animate being, endowed with awareness, intelligence and reason.” citing Luc Ferry, A Brief History of Thought (2010) at 21-22. In essence the Stoics weere convinced “that a ‘logical’ order was at work behind the apparent chaos of things and that human reason was able to discern the divine character of the universe.” Id. at 22.

Being of this mindset Marcus Aurelius saw nature as a harmonious whole serving as a model for human conduct and the order of things: “All that comes to pass with justice. You will find this to be so if you watch carefully. I do not mean only in accordance with the ordered nature of events, but in accordance with justice and as it were by someone who assigns to each thing its value.” Id. at 23 (citing Marcus Aurelius, Meditations).

Today following the discovery of quantum physics we can say the universe is alive and in constant motion. All matter is interconnected. Although the Stoics did not understand quantum physics, they understood the universe as living order.  Recognizing this reality allows for an understanding of the universe and how we and all are interconnected. In the end Marcus Aurelius is likely correct justice prevails in a universal way.

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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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February 12th, 2012

Third Week of February-Peak Value and Career Value

 

The baseball writer/statistician Bill James refers to baseball players having both peak value and career value. Peak value refers to the player’s performance during the best years of his career. Usually this is when the player is between 26 and 30 years old. Career value refers to the player’s performance over his career.

Life can be looked at in the peak value career value way. We can think of many examples of famous people and not so famous people who have a few great years and then flame out to ashes. We also know people who never flame out. These people have “life career value.”

People who have life career value keep going in adversity. People with life career value stay productive throughout their life. People who have life career value foster quality relationships. People with career life career live life as a marathon. They finish the race. They may hit a wall from time to time, but they continue through and accomplish quality in their chosen pursuit and in their relationships.

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February 5th, 2012

Second Week of February-Don’t Sweat the Small Stuff

I started a self defense class recently, and it has started to change the way I react to certain events. The old me would be upset if a stranger  was inconsiderate in public. I might even say something to him or her. The old me would take the time to argue with a stranger who expressed an opinion I disagreed with.

The new me chooses not to react. Now I ignore an inconsiderate stranger and don’t give him another thought. The loudmouth opinion stater that I disagree with does not phase me.

From a self defense standpoint this results in less chance of interacting with a violent person. From a psychological standpoint  being the new me has a calming effect. Now that I ignore inconsiderate people and loud mouths I have less stress in my life. I think this is one reason people say “don’t sweat the small stuff.” It makes life safer and less stressful.

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January 30th, 2012

First Week of February-Life is What You Make It

 

Last week I read  late January and early February is the most depressing time of the year. This is because for most of us in the Northern Hemisphere the days are short and the weather is dreary. The holiday season is over and we have weeks of winter ahead.

While this may be true as far as short days of winter, there is no reason to despair. Challenge yourself to get better at something. Grow your knowledge by reading something worthwhile. Better foster a relationship.

You have control over how you grow your life. Use the days of winter for positive change. Remember life is what you make it.

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January 22nd, 2012

Fourth Week of January-One with Nature

All actions take place in time by the interweaving of the forces of nature, but the man lost in selfish delusion thinks that he himself is the actor. But the man who knows the relation between the forces of Nature and actions, sees how some forces of Nature work upon other forces of Nature, and becomes not their slave.

Brihad-aranyaka Upanishad

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January 15th, 2012

Third Week of January-Rich v. Poor

Rich, Poor conflict strongest in 24 years (The Associated Press 1/12/12).                                                 The Associated Press article says “Americans now see more social conflict over wealth inequality… .” About three in 10 Americans polled said there are “very strong” conflicts between the rich and the poor. The share of U.S. wealth held by the top 10% of the population increased from 49% in 2005 to 56% in 2009. Id.

The United States government considers wealthy as having a household income that exceeds $250,000. Although this is a significant income, wealthy is a relative concept. The breadwinners of a family making $250,500 in an expensive area of a major city with typical family overhead most likely do not consider themselves wealthy.  But this family is wealthy compared to a family living on under $30,000 a year which is close to the official poverty level.

One should not feel guilty about making a good income;  one should not feel guilty about being fortunate; but one should remember how tough it is for those who must live on a minimum income:

-Give dignity by showing respect for others regardless of their income level.

-Give to charitable causes that help those less fortunate.

-Refrain from flaunting wealth.

-Remember it is not what is outside the person that counts it is what is inside.

-Remember we are all in this together.

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