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Jury Rights and Comforts

Sunday, October 25th, 2015

An article on jury service grabbed my attention when it mentioned a judge handing out chocolate chip cookies. Plus, I refuse to acknowledge why Twitter is so fascinated with Baby Hitler. So,on to the cookie story.


But first, some background … no, not on the cookies!

It’s exciting to think that a prospective juror would show up with excitement to hear a case. The reality is that they feel inconvenienced; angry at the parking; and hopeful that they get to go home early.

In Greenville, South Carolina, a jury panel shows up to the Courthouse and is directed to the basement. There, they are asked to watch a film on jury duty that was recorded several years ago. Usually, there are at least 100 people gathered on folding chairs in that room.

Soon, lawyers with cases that might be called during that term are brought downstairs to watch all the jurors stand, and be called by name.

The first time that I participated in that process, I realized that unless I had a photographic memory, I wasn’t getting much by watching over 100 people stand and sit. I suspect that it feels very impersonal for the prospective jurors as they popped up and down while their name was called.

Arizona is the only state that I know, who formally has enacted a Juror Bill of Rights. It begins with the statement that JUDGES, ATTORNEYS AND COURT STARFF SHALL MAKE EVERY EFFORT TO ASSURE THAT ARIZONA JUROR ARE… and then it lists twelve items. The first involves courtesy and respect and the last involves being paid.  Yes, that statement is printed in all caps. I didn’t want you to think that I was hollering.

A District Judge in Sioux City, Iowa, is also taking treatment of jurors very seriously. He says that he uses the acronym WWJW as an approach to jury trials, and he means by that What Would Jurors Want?

In an upcoming article that he has written for the Arizona State Law Review, he is proposing his own Bill of Rights for Jurors. Here is a condensed version of his list:

1) The right not to have their time wasted with “unnecessary, cumulative and excessive evidence.

2) The right to be told during jury selection in civil trials exactly how long a trial will last, minus the time for deliberations. Bennett and his law clerk use an online chess clock to measure time limits during the trial.

3) The right to have plain-English jury instructions before opening statements. Bennett’s instructions “come complete with a meaningful table of content, bullet points and white space.”

4) The right to have their judge “thoughtfully consider innovations that enhance their experience and the fairness of the trial.”

5) The right to “juror creature comforts.” This includes comfortable seating and nutritious snacks. Bennett bakes cookies for the jurors in trials lasting four days or more.

Not sure that the cookies count as nutritious… but I know some folks who would sit on the jury for a day. Of course, I know a few who can’t stand chocolate. For them… maybe a Flatbread pizza! Maybe there is a good movement afoot for making jurors happy!

And  now to our pic o’ day from my Mom:


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It’s the Point of View

Wednesday, October 7th, 2015

A college professor stood in front of his class and wrote the following words on the chalkboard: A woman without her man is nothing.  He then asked his students to punctuate it correctly.

The males in the class wrote the following: A woman, without her man, is nothing.

All the women in the class wrote A woman: without her, man is nothing.


Here’s another point of view. The airlines have apparently decided that we are only interested in pricing and treat us accordingly. We will put up with cramped travel without benefits if the pricing is right. Doesn’t feel like a very good way of looking at travel.

Which brings me to the finale. Insurance companies and their point of view. We as the insured believe that if we pay our premiums, that we will be covered for loss. If you really think about it, the insurance companies have a different point of view. Premiums collected earn more money. Claims paid mean less money. Hmmm.

Recently I saw the movie Rainmaker again on TV. That’s one of those movies like Shawshank  Redemption that always seems to be on. In Rainmaker, based on John Grisham’s book, he wrote about a lawyer named Rudy Baylor who was trying to hold an insurance company accountable for not providing care to a dying man.

Grisham captured it just as the movie did. In the movie, they introduced an internal memo to deny all claims. Sometimes Hollywood does bring reality to life! That point of view.

And for “pic o’ day”:


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The Tort Law Museum

Monday, September 28th, 2015

The Chevrolet Corvair is in the car graveyard. Do you remember it? Probably not. GM’s engineers got creative by putting the engine in the trunk. For a while, GM had a hot selling car on their hands.

It has disappeared from our highways because drivers complained that they were suffering an unexplained loss of control. Over 100 Lawsuits were initially filed against General Motors for crashes occurring from a loss of control, and car crashes that included the cars rolling over.

Consumer advocate Ralph Nader addressed the handling of the car in his book Unsafe at Any Speed. It was determined that the Corvair’s suspension was the cause of the control issues, and discovery in those lawsuits showed that GM had denied the request of the suspension engineer, who had fought GM’s decision to remove an anti-sway bar during manufacturing… for cost reasons. Economics had impacted safety.

It did put Ralph Nader on the map as THE consumer advocate, as he was involved in several consumer safety issues and regularly testified before Congress. In 1966, President Lyndon Johnson invited him to the White House to witness the signing of new highway safety laws. In fact, he would later run as an independent candidate for President in 2000; and some credit his candidacy in  helping to elect President George W. Bush. It was presumed that his supporters would have supported Al Gore in that tie-breaking election.

Now at age 79,  the New York Times is reporting that Nader has established an American Museum of Tort Law, with exhibits that show various products that have been removed or made safer; as well as lawsuits that were successful in helping consumer safety.

The full article (here) tells about the exhibits in the museum. And here is a picture of Nader at the museum.


The museum claims to describe the evolution of the laws of negligence and liability. It includes exhibits of the Ford Pinto, the asbestos claims, and the tobacco lawsuits. Nader also hopes that students will come to the museum for mock trials to reenact some of the historic trials that are mentioned in the exhibits.

Nader regularly writes a blog on consumer topics at

And for pic o’ day, I am posting a “previous” because this team always makes me laugh.


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The Egg Shell Head

Tuesday, September 22nd, 2015

It’s been called “the pain of being a redhead”.  According to research studies (Here), people with red hair need larger doses of anesthesia during medical procedures. In addition, there’s evidence that redheads are resistant to the localized pain blocker Novocain. An extension to that finding is the statistic that redheads are twice as likely to avoid going to the dentist… as other hair colors.

I know that the following scientific reasoning for hair color is a bit mind-numbing. Have you ever heard someone say that it was like looking into the eyes of Medusa and that they just couldn’t look away? Well, this is just the opposite. So, to skip boring gene stuff, skip the next paragraph.

If you decided not to skip…. the reason for hair color having bearing on response to anesthesia is based on our genes. People with brown, black and blond hair have the gene for the melanocortin-1 receptor that produces melanin. Conversely, the MC1R gene causes the production of a substance called pheomelanin which causes red hair and fair skin.

I read that “gene stuff” in several articles and wrote it down for the blog. All I know is, that it has nothing to do with Wrangler or Levi. But, the gene composition has to do with how we react to anesthetics. Which leads us to the concept of taking a person as you find them in the consideration of injuries caused by someone’s fault.

In car crash cases, the jury receives instruction on the law from the judge. In cases where a person had some prior problems, physical conditions, or a accident. It’s not unusual that there was evidence of preexisting conditions. So, the judge will read the following instruction to the jury:

If you find that the plaintiff had a condition before the collision that was aggravated as a result of the collision or that the pre-existing condition made the injury he received in the collision more severe or more difficult to treat, then if you find your verdict for the plaintiff, he may recover for the aggravation and for the increased severity or difficulty of treatment, but he is not entitled to recover for the pre-existing condition

This jury instruction is sometimes called the “Egg Shell Head” instruction. Much like Humpty-Dumpty who sat on the wall. If someone pushed him off the wall, they cannot then argue that they are not be responsible for Humpty’s injuries after  “all the kings horses and all the kings men, couldn’t put Humpty together again”.IMG_0308

In a civil lawsuit for damages from a car crash, a defendant takes a person as they find them. We are all different, just as we all have different pain thresholds. A person must be responsible for whatever they cause, and cannot argue some weakness of the injured person as a defense. They are only responsible for what they cause or aggravate.

An aggravation of a preexisting injury or condition is really what happens in many cases as the client gets older and has dealt with the realities of life.


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Week One in the Books

Monday, September 14th, 2015

The National Football League has just completed its first full week of games. Some teams sit at the hopeful 1-0, while others are 0-1 and telling reporters that it’s a marathon not a sprint. As a Colts fan, I’m glad that week one does not decide who will be in the playoffs.

In professional basketball (NBA) the same thing is true except that teams play 82 games versus the NFL’s 16 game regular season. In 1978, the Washington Bullets faced a difficult task throughout the playoffs.

In the Eastern Conference semi-finals between the Bullets and the San Antonio Spurs, the Bullets fell behind in the best-of-seven series 3-1. All San Antonio needed to do was win one more game and advance to the finals. The Bullets coach, Dick Motta, overheard a broadcaster talking about the series, which caused Motta to tell his team, “The opera ain’t over ’til the fat lady sings.”

Sure enough, the Bullets came back to win the series, advance to the NBA championship, and ultimately beat the Golden State Warriors to become NBA champions. Throughout, their mantra remained the same with many Bullet fans wearing t-shirts bearing that slogan.

Which brings me back to football and the Colts. In 1955, Pittsburgh Steeler coach Walt Kiesling called quarterback Johnny Unitas into his office to tell him that he was going to be cut from the roster because, “I’m sorry, but we can’t use you.”

Just three years after being cut by the Steelers and having to play semi-pro ball until he could get back in the NFL, Unitas was playing quarterback for the Baltimore Colts. In the 1958 NFL Championship Game, he passed for 322 yards to lead the Colts to a championship over the New York Giants. Later, he was inducted into the NFL Hall of Fame.

Vince Lombardi gave good life advice about difficulties in life. “It’s not whether you get knocked down, it’s whether you get back up.”

I regularly see clients who have gotten knocked down by an event like a car crash. I also am challenged personally as I see them get back up,  and while not letting difficulty stop them.

And for pic o’ day, this is dedicated to those who can’t put their phones down.


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Ac-Cent-Tchu-Ate the Positive

Wednesday, September 2nd, 2015

Everyone likes positive. Many books have been written on thinking positively. Maybe that’s why the song Ac-Cent-Tchu-Ate the Positive has been so popular.  First stanza:

You’ve got to accentuate the positive
                                                  Eliminate the negative
                                                  Latch on to the affirmative
                                                  But don’t mess with Mister in-Between

I was going to post the names of everyone who has sung that song over the years. So, I went to Wikipedia and realized how long the list of singers. More proof that music and singers like positive. Then, I saw the long list of movies and TV shows that have included this song. More proof!

I thought about this as I was having breakfast yesterday, as I listened to a business venture recently started. The business is premised on organizing expenses to avoid problems with the IRS, so you can get quick documentation.

Their description of the business dealt mainly in the negative as a way to track expenses, set aside money for taxes, and properly take care of your finances to avoid an IRS audit. A good goal but sounds a bit negative to me… avoidance of an audit.

We discussed how insurance companies have learned to market in the positive. Car insurance companies market price savings, not security that you’ll know that you are covered when someone runs into you. Life insurance companies don’t focus on death. They focus on your peace of mind… knowing that your family will be fine. They… AC-Cent-Tchu-Ate the Positive!

Long ago, to properly try a case, you have to present what a verdict will do for the client. I later learned to simplify damages by addressing how to fix, help, and make up for what was caused by the crash. Juries want to hear what their verdict will do in the positive.

And then…


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Parking Lot Lesson in Coverage

Sunday, August 9th, 2015

I enjoy a good riddle and this one is a challenge. Look at the parking lot below. What is the number of the parking space where the car is parked? (Can you hear the jeopardy theme?)












Well… did you get it? Are you trying to do mathematical equations or dividing by the square root of an apple pie?

The answer is “87″. It’s point of view. If you look at the parking lot from the viewpoint of the driver, then you can see that the car has backed into space number 87.

     Berkshire Hathaway just announced that its insurance companies, which include Geico and General Reinsurance, reported a $38 million underwriting loss. That is compared to their last year’s $411 million gain. The negative swing was driven by higher claims at Geico and $115 million in storm losses in Australia where Berkshire insurers provide coverage.

What does it mean. Well, just like the parking place, it’s the viewpoint in how you look at things. Insurance companies receive premiums. Their profit is based on the receipt of premiums and if they have to make payment on claims… not so much profit. So, they look at claims as the enemy of profit. Point of view!

And for pic o’ day…





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Law Firm Case Work!

Thursday, August 6th, 2015

I thought I would take this Friday blog and devote it to the Law Firm. Well… maybe devote is a strong word. But, here are some things that occur during the workday on our cases:












     Traffic patterns and visibility:



Have a great weekend!


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Fitbit and Garmin Discovery

Sunday, July 19th, 2015

In the world of law, discovery of evidence used to be based on basic things like measurements, photographs, witness statements and medical records. Now, it’s not unusual to have discovery include a fishing expedition with a look toward online social media.

Usually, interrogatory questions from each side include discovery of Facebook accounts and whether people have other online messaging that might include a person’s description of life. If a person says that they are hurting and can’t do very much, are they posting pictures of their bowling night? Do you see them posting their picture with a grin… as they jump on their backyard trampoline?

Well, now there’s another possible source of information that may be relevant in a claim.  The Washington Post recently reported on how technology could soon kill the art of lying. “Lies are a fact of life,” the newspaper says. “But technology may soon make them obsolete.”

According to the ABA Journal, “Data from wearable devices is being eyed as evidence in the courtroom”. Lancaster Online tells the story of one criminal case where the defense in a rape case was able to use the tracking of a Fitbit to fight the charge. A woman  said she was asleep when she awoke to find a rapist who assaulted her. The woman’s Fitbit, however, showed that the woman was awake and walking around at the time she claimed to be asleep. Just something to try and create reasonable doubt in a juror’s mind.

Insurance companies are using posted pictures, GPS exercise watches, cell phone GPS discovery and discovery of the identification of friends through social media accounts. This information might help them defend worker’s compensation claims and auto accident injury claims.

Cars now provide data to establish how fast a defendant’s car was traveling at point of impact. Truck drivers might keep two sets of log books to try and fake how long they have been driving. However, now their trucks can establish distance traveled during a specific time, and potentially the speed they travel.

Discovery can tell a story that can refute the defense. It’s part of the reason that I try to encourage people to let us get to work quickly on their claim before information is lost. Maybe try to get that security video footage that may be only available for a short period of time and then erased. On the flip side, insurance companies investigate claims quickly… while they discourage people from hiring lawyers. Pretty savvy on their part.

Still, I never thought that I would see the day when someone’s Garmin or Fitbit would be part of evidence. As one TV show used to say, “The Truth is out there”.

And for pic o’ day, here’s some “photograph discovery”:


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The Lawyer Costume

Monday, June 29th, 2015

A man looking through job listings came upon an ad for a job that was available down at the local zoo. He was told that because of funding cuts, the job required that he dress up in a monkey suit and perform in one of the cages.

All went well for several days until he was swinging from tree branch to branch and fell to the ground. He began to call out, “Help, Help!”. In the next cage over the Lion whispered, “Shut up… or we’ll both lose our jobs.”

Costumes are a funny thing. It’s someone hiding behind a disguise to be someone else. When I saw this first Ronald McDonald from 1933, I wondered why anyone would want to be this… or why McDonalds thought that this would be a fun mascot.


I guess I probably am not a good judge of clown costumes. Not a big clown fan.  This is Willard Scott who supposedly invented Ronald McDonald. He went on to greater heights as the weatherman on The Today Show.

     Ronald  McDonald remains and I remain confused about it…  but I digress.

This brings me to the subject matter… and conclusion of the blog. A few years ago I heard a jury consultant say something about the practice of law that had a profound effect on how I now conduct myself in jury trials.

This consultant said to, “stop acting like a lawyer”. In the initial seminar speech, he basically was telling a group of lawyers to get rid of all the legalese talk and start talking like normal people talk.

Somewhere along the line, lawyers started using terms like whereas and wherefore. We started arguing why for is the word thereforetherefore!

Being real. Not putting on the costume of lawyer. Since that seminar talk, I have followed up with that speaker on some of our cases. I have read some of his books and been directed to other lawyers who speak the same language of being normal.

President Franklin D. Roosevelt left us with some good advice along the same lines.  Be sincere. Be brief. Be seated.

And for pic o’ day, I was going to post something on sincerity and then I saw this… on focus!


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