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An Expert or an “Opinionater”

I know it is hard to believe, but I am truly starting the blog with a picture that is related to the subject matter. I know… that is some crazy blogging!

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Please fight through the blog today because there really is a purpose. I mean it!

This is probably more of a sports blog… because I wanted to write about the upcoming NFL draft. But, I am writing it in the context of law.

(Here we go…talking some legal) To be qualified as an expert in a jury trial, you have to be qualified to give an opinion that is beyond common knowledge. The Virginia jury instruction tells jurors:

In considering the weight to be given to the testimony of an expert witness, you should
consider the basis for the opinion and the manner by which the expert arrived at it and the
underlying facts and data relied upon.

Which leads me to the the concept of “experts” as it pertains to NFL football drafting.  (And yes, I do enjoy using the “emphasis quotes” which is probably as irritating as seeing someone using “air quotes” when they talk) Football fans know that it’s almost time for the NFL draft. My email in-box is being targeted with all kinds of offers to buy draft information, and sports sites are filled with updates and predictions on who will be drafted in the first round. These “experts” all have their opinions.

So let’s travel back to 1998. It’s the draft and the Indianapolis Colts are on the clock with the first pick. Do they pick Peyton Manning or do they pick Ryan Leaf. Well, here is Vic Carucci’s thoughts on who to pick:

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Carucci’s opinion that the Colts should select Leaf is actually laughable now. The reason I post this scouting report is to show that experts can be absolutely wrong. He missed it here.

Recently I watched an ESPN 30 for 30 episode about the 1993 NFL draft. The year that John Elway was drafted first. During that ESPN documentary, we are reminded of their draft expert, Paul Zimmerman, who proudly proclaimed that it was a mistake for the Miami Dolphins to draft Dan Marino. “I don’t understand it”

He went on to say that no one was there to coach him and that it was a mistake for the Dolphins to draft him. They had other needs. That was his draft expert opinion.

I close with the thought that I have seen more expert opinion that should really be more”Opinionater” than expert. In trial, I see defense experts making the proclamation that someone needs no more treatment and has no permanent injury… after only seeing medical records and not even seeing the person.

I had one defense expert tell me under oath that he felt more qualified to give an opinion after not seeing my client, because this made sure that he was not impacted by any bias. Solely basing his opinion on the records. Of course, he smirked when I asked him if he refused to see patients in his office… because meeting them would cause a bias of his treatment. Boom! That is no expert opinion. That is silliness.

And for pic o’ day… I think this qualifies as good expert advice!

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What Is Your Passion?

What does your eye doctor think of your eye sight, if they send you this kind of appointment reminder?

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Just sayin’!

Several years back, I was attending a seminar on law and legal marketing. One of the first speakers started his speech by saying that he was going to tell us his secrets for Internet marketing, but was not worried about utilizing them and taking away business. He reasoned that  the majority of us would either be too lazy, or too consumed with our work to follow through on what had made him successful.

Honestly, his speech ticked me off a little. I guess he got my competitive nature riled up. As I thought about what he was saying, it made me realize there was a better way of doing things… but like this fellow in this picture, no matter how hard I worked,  I had lots to learn. There was a better way to do things!

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At the time, that lawyer was one of major Internet marketers in the country. He had his website everywhere. Recently, someone mentioned him to me. That made me realize that I had not seen any of his marketing for a while; that his website was not reaching me. What had happened to him? He is still out there, but it made me think.

A book that I am listening to on Audible, in my car, is written by and also read by Gary Vaynerchuk titled Crushing It!  The book  just came at the end of January At the beginning of the audio book, the author acknowledges that he was going to be adding to it, as he read the audio portion. He noted that technology and marketing had already changed so rapidly, since he had written the book.

I think that’s why the earlier mentioned lawyer was not in my stream of consciousness anymore. He probably has not managed to keep up. It really was not about a competitor catching up to him.

At the Firm, we constantly challenge ourselves to be better. Not just be processors. (I think this coffee server might have just been processing. Right?)

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As Gary Vanderchuk says, “there are entrepreneurs and there are ‘wantreprenuers‘”. Follow your thrill and passion and you will find the “fulfill”. The financial reward will follow the passion. If someone simply wants money, they will not be successful. At some point their “Want To” will run out.

Our motivation and passion can be helping people, beating insurance companies, constantly learning, and seeing something different every day. If someone comes to work to simply get on Facebook or ask everyone how their weekend was, then they probably are not following a passion. It’s just a job to them. Ultimately, their “Want To” is going to run out and make them search for something else.

Coach Vince Lombardi knew how to challenge people. Here is one of his quotes that fires me up! “The dictionary is the only place that success comes before work. Hard work is the price we must pay for success. I think you can accomplish anything if you are willing to pay the price”.

I am challenged by Martha Washington’s (1732-1802) mantra for life, “I am still determined to be cheerful and happy, in whatever situation I may be; for I have learned from experience that the greater part of our happiness or misery depends upon our dispositions, and not upon our circumstances“.

It’s Our Monday! It’s going to be a great day! I dare an insurance company to deny today!

And finally, for our pic o’ day, I guess this is an example of someone who may enjoy making cakes… but still be processing what someone says to put on their cakes? The definition of literally:

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The Starfish Reminder

I love what Ronald Reagan wrote to Nancy!

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The power of human connection!

And this story from livelifehappy.com sums up what keeps me going!

An old man walked across the beach until he came across a young boy throwing something into the breaking waves. Upon closer inspection, the old man could see that the boy was tossing stranded starfish from the sandy beach, back into the ocean.

“What are you doing, young man?” He asked.
“If the starfish are still on the beach when the sun rises, they will die,” the boy answered.
“That is ridiculous. There are thousands of miles of beach and millions of starfish. It doesn’t matter how many you throw in; you can’t make a difference.”

“It matters to this one,” the boy said as he threw another starfish into the waves. “And it matters to this one.”

Recently I have been interviewing attorneys for our offices. In fact, I have hired 2 attorneys and am close to hiring a few more. Why? Well, this story summarizes it, just like the question that I am regularly asked in my attorney interviews:

When do you plan to retire?

I actually have a physical reaction to that question. The longer I practice law, the more irritated I get with the way that insurance companies treat people. It’s what drives me…puts a chip on my shoulder! It’s why I have no plans to retire and don’t even react well to that question.

What motivates me? Maybe we won’t change how insurance companies treat people. But for our client on this case…it matters to this one!

As that website says, “We make a living by what we get. We make a life by what we give”.

And for pic o’ day…this one always makes me laugh:

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Happy Too!

I always like to start Our Monday Blog with some positivity. This pic o’ qualifies as reaching goals. Right?

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While driving down the road recently, I saw a billboard advertisement for a grocery store chain that simply said, “Groceries Delivered“. That seems to meet a need, but it also is becoming more popular. Perhaps the aggressiveness of Amazon is causing everyone to step up their game in the grocery business.

I remember being one of the first law firms to advertise “We will come to you“. I had noticed a trend of several new potential clients failing to show up for their appointments at the office. I learned that once someone had crashed their car, it made it very difficult to come to our office. Missing the appointment made total sense. I had to come up with a solution… going to their home on their time.

Which brings me to the thought of how to step up our service now? What message or new service could I advertise.

I love the positivity of my father-in-law. When someone asks him for help, he regularly responds with, “Happy Too“. Be willing and ready to help! If I could convey that in all of our ads… then I have maintained our true hopeful message. If someone needs our help… I hope that they feel our response of “Happy Too”!

 

And finally, for our pic o’ day, I think many of us relate to this as we sit in that chair!

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When the Jury Does Not Show Up!

Here we are… it’s Monday! Is this how you felt this morning?

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At the beginning of every jury trial, I always start by thanking each jury member for taking the time to be there. I sometimes wonder if they think that it is just my memorized introduction. They would not think that, if they saw Sunday’s edition of the Richmond Times-Dispatch.

The article (here) is titled, “Jury duty no-shows in Chesterfield are causing trial delays – now the no-shows may get fined, too”.

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But here’s what the reporter is saying.  There were 373 summoned Chesterfield residents who initially failed to appear for jury duty in 2017 and January, 2018. Ultimately, 103 showed up to explain to the judge why they failed to report for jury duty. So far, the court has entered dollar judgments against 24 people. Some of those judgments are as high as $200.

I have previously blogged about having a trial continued in Chesapeake, Virginia, because they did not have enough jurors show up for court.  In Chesterfield, the no-shows are a cause of growing concern in Chesterfield. Court personnel reports having to sometimes scramble to find enough people to seat juries. One November jury trial was canceled because of no-shows.

In the article, Chesterfield Sheriff Karl Leonard was quoted as noting that, “It’s a huge problem. It really delays justice.” He also went on to discuss that some Chesterfield’s circuit judges have indicated they may want him to send deputies to pick up prospective jurors from their homes or workplaces, if enough don’t show up for jury duty.

The Henrico Chief Judge has indicated they they are fortunately not having the same issue. “We just have not had a problem,” said Chief Henrico Circuit Judge James Yoffy, “We do have a good system out here.” Petersburg Circuit Court recorded the third-highest number of juror absences in the region — 312.

Just a quick note on the process from our end. We set a court date that is sometimes almost a year away. Then, we make arrangements with witnesses and send out subpoenas. As to doctors who are going to testify, we subpoena them and then sometimes are also required to pay them a NON-REFUNDABLE trial testimony retainer payment.

If it is a very busy doctor in a specialized area of medicine, that retainer could be $5000-$10,000. Getting on their schedules and then paying large retainers to doctors is expected. Then… you truly hope that all scheduling will work and that everyone will show up, so the trial can go forward. Delay is normally good for the defense because it means that the defendant can put off responsibility for the harms, for a little longer.

Unfortunately, if a trial is continued, it’s not just a matter of showing up the next day. Those days are already pre-scheduled.  It’s once again trying to get back on the Court’s docket. It usually means going downstairs to the Clerk’s office and hoping to get back on a little sooner than it originally took to schedule.

But… those non-refundable retainers to the doctors are usually gone. For the next court date, it takes more non-refundable retainers.

That’s why my beginning remarks to jurors are truly from a place of thankfulness! Even though this is how some might be thinking:

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And for pic o’ day…

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Punishment Punishment??

I could write about Ed… with cherries on his head. What? There are just some things that are difficult to explain. For instance, in 2016, Americans spent a reported $5.3 million dollars buying U.S. flags… that were made in China. Things that make you go hmmmm!

This blog is about punishment legislation in Virginia. Legislator thinking is the confusing part. And I will present some thoughts, but I cannot promise that I can explain it. Of course, you have to remember what they say about the value of free… and that includes free blogging.

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So here we go. FIGHT THROUGH IT WITH ME!

The headline says, “SB 895 Punitive damages; raises cap from $350,000 to $500,000“. In Virginia, this legislative session had a Senate bill that was introduced to increase punitive damages from $350K to $600K. Then, it was amended to an increase to $500K instead.

It “sailed” through the Virginia Senate committee by a vote 24-15. The question is, “why would someone vote yes or no for an increase in punitive damages?”. Here’s how the voting of the senators was registered.

YEAS–Barker, Chafin, Chase, Dance, Deeds, Ebbin, Edwards, Favola, Lewis, Locke, Lucas, Marsden, Mason, McClellan, McPike, Obenshain, Petersen, Saslaw, Spruill, Stanley, Stuart, Surovell, Vogel, Wexton–24.

NAYS–Black, Carrico, Cosgrove, DeSteph, Dunnavant, Hanger, McDougle, Newman, Norment, Peake, Reeves, Ruff, Sturtevant, Suetterlein, Wagner–15

It it now headed to the Virginia House Courts of Justice Committee vote, before heading to the full floor. But again, why would someone be against punishment damages.

Just a couple of thoughts. The punitive damage amount has not been increased in Virginia in 30 years. Insurance is required to cover the punitive damage verdict, if such is awarded by a jury and there is enough insurance to cover it. Also, there is a very high legal standard to meet, to get punitive damages to a jury. Otherwise, a judge will strike it from the case.

So again… what makes a legislator vote against or for it.

I think that those against the punitive damage increase, view it as an issue that is related to being pro-business. If you vote against it you must be helping Virginia in bringing more new businesses to the Commonwealth. Also, you are keeping insurance rates down, because you are helping to keep verdicts down. Verdicts that insurance would otherwise have to pay. Does that sound like good logic?

I think you probably know where I am leaning, but I will say that I am all for bringing new businesses to Virginia; and I do want insurance rates to be lower. In the coming days, I will have some follow-up on the insurance rate issue. Believe me! I want lower rates!

Now here is what we know. When you are starting a business in Virginia or you are thinking about coming to Virginia to do business, you are not asking anyone, “Do you know how much I will have to pay in punitive damages?”. Why? Because no one believes that they will do such acts that are so egregious, that they will be responsible for punishment damages. No one asks “I wonder what will happen when I drive drunk the next 13 nights“.

Punishment damages also serve to protect Virginia citizens. We do not want companies coming to Virginia and intentionally hurting its citizens with their conduct or their products. Remember, it’s not about doing something that causes injury with a mistake or accident… it’s about causing harms with reckless disregard. The legal term includes “willful and wanton” which basically means a conscious or intentional act. That’s why a legislator should be protecting Virginia citizens.

I look at those legislators who have voted “no” and I think, “why don’t they care about their constituents?“. Do they also want to protect drunk drivers?

Now that probably seems a bit harsh. But, I am guessing they do not even realize why they are voting against an increase, for something that has been in effect for 30 years. These same legislators are probably not telling Dominion Power to roll back rates to 1980.

A business who does such bad intentional acts should not be able to get away with it, by simply being responsible for $350K. That is nothing to many businesses. Otherwise, and they can just factor bad behavior into their budget.

As to the insurance increase; if a policy is on an individual, they only have to cover the amount of coverage that is written. In Virginia, a minimum policy is $25K. If it is a business, then typically there are assets to cover a verdict. In the instance when there is coverage… they have already charged significant premiums to cover these insurance amounts. So there should be no increase.

Have I convinced you either way? Well, let’s just all hope that we do not deal with people or businesses that commit such acts that are even worthy of consideration for a punishment damage verdict. In the meantime, it will be interesting to see what the House thinks about this issue and whether the increase will ultimately become law.

On a different note for pic o’ day… this can be explained!

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Hammer Meets Nail!

How about a Christmas picture to get Our Blog week started?

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When I received that… I laughed!

Here’s what we know on a Monday. No one wants to hear how someone’s fantasy football team did over the weekend, and no one wants to hear about how much money someone made in bitcoin. Right?  (Yes, I know. That was just random)

We want useful!!! Something that effects us. Thus, I will be a bit random now to get to our ending point.

So let me mention my weight loss idea. On Friday I decided to punish myself for gaining a couple of pounds. I know it sounds crazy, but stick with me.

Recently, I ordered some custom shirts from a men’s shirt company that is located in India. I sent them my sizes. When the shirts arrived, they all felt tight. I was stuck. Send them back and spend almost as much in shipping as I spent on the shirts? Give them away? Or, torture myself. I went with the torture weight loss program of shirt tightness.

With a sport coat on, you probably wouldn’t notice. Me? I felt the tightness all day. One piece of lettuce felt like too much food. I knew I needed to lose at least 3 pounds! It’s the little things. Like not just digging into the Christmas cookies that show up at our office. Which brings me to some poetry for the blog to make us wicked smart!

One of my favorite poems is For The Want of a Nail.

For want of a nail the shoe was lost.
For want of a shoe the horse was lost.
For want of a horse the rider was lost.
For want of a rider the message was lost.
For want of a message the battle was lost.
For want of a battle the kingdom was lost.
And all for the want of a horseshoe nail.

 I connect that thought to the court system. The 2017 statistics are not out yet but; in 2016, the Virginia Supreme Court issued opinions on 15 injury case appeals. This included death cases and malpractice verdicts.

In those 15 cases, the injured party only won twice. In the sports world, that is a 2-13 record. That is part of a continuing trend in Virginia. Over the last several years, the defense is winning at the appellate level of the Virginia Supreme Court by historic margins.

What do these statistics mean? Stay with me on my stream of consciousness.

Following Tuesday’s election, democrats were celebrating the victory of a an elected Democrat in Alabama. In Congress, it means that Republicans hold a slim 51-49 Senatorial advantage. It makes it difficult to push legislation through unless everyone votes along party lines. Similar to getting judges approved.

There is a similarity in Virginia. Selection of Virginia state court judges occurs through legislative election. Virginia is one of only two states that use this method in choosing judges. The other state is South Carolina.

It’s why  there are court challenges regarding this past November’s elections to determine whether Republicans or Democrats will control the Virginia House of Delegates. Right now, the difference stands at a Republican majority of 51-49, with a possibility of that still flipping.

That impacts laws. That impacts appointments. Which means… that could impact how a Supreme Court justice might apply laws during appeals. That’s not to say that any of the above opinions would have changed. But, in the federal system, it’s not unusual to see a ruling by a 5-4 decision.

Elections can impact judicial appointments. Appointments could potentially impact appellate decisions. It’s why every vote does count. It’s the little things.

And I decided to close with a pic o’ day that is not holiday related. But is is a blog tip…or something!

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Moe Levine On Loss

Do you read the blog for good advice. How about this advice??

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Now let me write a bit about a lawyer who is legendary in law circles. Moe Levine passed away in 1974, but he still lives on in his recording and writings. Many of his openings and closings have been transcribed and have lived on as examples of advocacy.

To give you an example of one of his closings, these few sentences come from a personal injury case in the 1960’s, where he was seeking damages in a double amputation trial. In expressing the everyday losses of his client, he said the following to the jury,

I need not call any army of experts and parade before you countless medical professionals to illustrate this boy’s loss. I need only tell you that I had lunch with him today, and he ate his food like a dog.”

It’s true that what he said was probably objectionable, because he was basically testifying in closing. However, it’s an example of the way that he thought, in conveying loss.

His primary discussion in discussing what a person has lost was summarized in this statement, “It’s not what the defendants have taken from the injured plaintiff, but rather what they left him or her with.” Here is how he conveyed that in a closing:

If a man with 20/20 vision has an accident and is left with 20/40 vision, you have taken his 20/20 vision from him. But you’ve left him 20/40 and he has good function with 20/40. On the other hand, if you take a man with 20/200 vision, who barely sees light and you blind him, you’ve left him with nothing.” This reframe is subtle, but powerful. In another example, Levine poses to the jury, “suppose you had a million dollars, and I took five hundred thousand dollars away. I would have taken a great deal of money from you but I would have left you with a half million dollars. As you still have a half million dollars, you are not left broke. On the other hand, suppose you had one dollar, and that dollar is taken from you. You now have nothing.

In yet another example, he compares loss to a candle, where the smallest candle makes the darkness tolerable. “You blow out the candle, and you are left with the abysmal fear of blackness: no light left. You have taken it all“.

He believed that the Old Testament was a good source of example in considering damages. He conveyed the loss of  enjoyment of life as described in the book of Ecclesiasteswhere it says that it is right and good that when a man has finished this day’s labor, he shall enjoy living.”

I enjoy looking back at the arguments of past lawyers. Most have not withstood the sands of time. But, Moe Levine’s thoughts on damages are still applicable today. In law school, my mock court professor played some old recordings from speeches that Levine made, in the 50’s and 60’s. At the time, it didn’t mean much to me. Now, as I look back, I have a great appreciation of that education. Life experiences had not yet prepared me to appreciate the discussion of loss.

 

And for pic o’ day……

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Loss of Enjoyment of Life

Today we have our law firm Christmas party. What that really means is breakfast. Years ago, I used to have a dinner. Then it became lunch. For the last several years it has become breakfast. And, it seems that everyone is much happier because they have the rest of the day free. I think you get it!

One of our lawyers told me that after the breakfast he is heading to a funeral. He said it with a smile. Then, he went on to explain that it was his neighbor who had passed away… at 97.

He had attended the man’s 95th birthday. And, it was a reminder of the importance of enjoying life.

A few years ago, I attended a family member’s birthday party celebration of her 90th birthday. We all went to one of my favorite restaurants in Raleigh, North Carolina. (Angus Barn) I leaned over to her and whispered that I was looking forward to coming back right here to celebrate her 95th and she told me she wasn’t sure she “wanted to last that long”.

I have thought back to my conversation that night. A reminder that nothing else matters… unless you have your health.

When presenting damages to a jury, part of it includes a life expectancy table. If a person has a permanent injury, how long does permanent really mean. For instance, a person with a permanent back injury with a life expectancy of 40 years. What is that worth? In context, what would if mean if they could live the next 40 years without that same pain and restriction?

Loss of enjoyment of life is a damage that is listed by the law, to be considered by a jury. It sounds like a general undefined term, unless we show what real loss means.

For Our Blog, I am not going to keep writing about it. But if you and I were sitting down to talk about it, I would ask what you think. This loss can mean different things to different people. I have seen this loss in many of my clients, and then years later, I talk to those same clients, who are still experiencing those losses after the case is over. That is the real meaning of loss!

For pic o’ day, I always try to post something that makes me smile. After a blog that kind of feels heavy to me, it seems even more important for a good pic o’. So, because it is December 1…. this seems like a perfect time to post:

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All About The Stats

They call it analytics. defined as The systematic computational analysis of data and statistics. (I promise, I won’t mention analytics again. I will do better! I promise) I feel like I am putting you through suffering by starting out like this.

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So here’s the turn. I always enjoy writing about the Indianapolis Colts in a legal blog. It’s true fandom. It’s why I can write about them, even though they lost 36-22. Not good!

Looking at their nationally televised Monday night football game, they received notification that the officiating crew was Walt Anderson’s crew. His crew averages 5 penalties per quarter, which is the second highest rate in the league.

The Colts coach could choose to ignore the crew assigned by simply saying “We are going to play Colts football and keep chopping wood“, or he could incorporate that into preparation.  (Here’s an article where the Steelers Coach did ) These Walt Anderson officials call it tight, so it means that your defense cannot be as physical and your linemen have to be careful in blocking and not holding.

How does that apply to our law practice? Usually, when we first discuss a case with a new client, they ask “How long will this take?” and “How much is my case worth?”. My guess? Probably the two most asked questions.

In handling a case, the worth is really related to the injury and treatment of the client, as well as the facts and liability of the person at fault. If a lawsuit has to be filed, then worth takes on additional components. The systematic computational analysis. (See, I didn’t use the A word) Where the case filed, and who is assigned as the judge are additional factors.

If I have an upcoming jury trial that has a judge assigned that I do not know, I usually ask around to find other lawyers that have been in that courtroom. A recent case with an unknown judge gave me the scouting report that she let’s you try your case. For another case this past month, I was told that the judge gets very involved , and he likes to be in charge of his courtroom, which is code for being an active interrupting judge.

In both instances, you tailor your trial strategy. I don’t just say let’s do what we do and go in there and just keep chopping wood. Can you tell that I am hopeful for a new Indianapolis Colts coach? More fandom!

And now our pic o’ day…. (thankfully I don’t feel this way, but it makes me laugh)

 

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