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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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“Walk, Don’t Run To The Nearest Exit”

History.com gives us the account of the Brooklyn Fire on December 5, 1876. (wikipedia account)  It was an event that killed almost 300 people. Deaths that were later attributed to negligence of the owners, designers of the building, and management of the Brooklyn Theater. Here’s a brief recitation of the events and it effects thereafter.

The Two Orphans, was a popular play, causing almost all of the 900 theater seats to be filled that night.  It was between the 4th and 5th Act, with the stage back curtain still down. A gas light ignited some extra scenery stored behind the stage, near some straw. The stage manager initially did not realize the significance of the flames. Because there were no buckets of water, and the water hose was not working, he directed the stage hands to extinguish the fire with long stage poles. That was not successful, and the flames began to spread.

In spite of the flames and smoke, the actors continued to stay in character. Many in the audience grew restless,  but many thought that it was all part of the play.

Soon, the actors fell out of character. The Brooklyn Daily Eagle later reported that the primary actor said to the crowd, “There is no danger; the flames are a part of the play.”As she spoke,” the Eagle reported that “a burning piece of wood fell at her feet, and she uttered an involuntary exclamation of alarm. This broke the spell which had heretofore held the audience.”

Panic erupted and the stage manager J. W. Thorpe appeared, urging everyone to exit in an order manner. But, the audience was now thoroughly panicked and ignored the people on the stage.  Because a narrow staircase was the only the exit from the balcony  and that there were no fire escapes; the stampede resulted in many being crushed, while others were trapped. When firefighters arrived, it was too late. And 1/3 of the audience could not exit in time.All this had occurred in approximately 10 minutes.

Later, it was estimated that approximately 300 people died. A dangerous condition had been created with no safety precautions, in the event of a fire. Looking back, it was foreseeable and preventable. The attachments above give further detail in the design of the building and the negligence of management. Further details of the actors, including one who ran to his dressing room and tried to climb out of his window… only to get stuck in the window and ultimately die.

In 1919, Supreme Court Justice Oliver Wendell Holmes wrote in an opinion (Schenck case) about the first amendment application and free speech that no free speech safeguard would apply to someone “falsely shouting fire in a theater and causing panic“. Thereafter, people took that wording from that opinion to mean that shouting “Fire” in a crowded theater was against the law, with no protection of free speech.

In 1969, the Supreme Court heard the case of Brandenburg v. Ohio . It involved a Ku Klux Klan leader, Charles Brandenburg, who had been charged with inciting group members at a rally. He had used inflammatory language and racial slurs including calling “revengeance,”.  Ohio prosecutors had interpreted his speech as a call to violence. Thus, using the same Schenck case regarding shouting “Fire“, prosecutors charged Brandenburg as breaking the law without the protection of free speech.

Brandenburg continued to claim that the First Amendment protected his speech. The Supreme Court agreed with him, in contrast with the earlier Schenck decision.

According to the opinion, advocacy, even when it encourages law-breaking, helps the marketplace of ideas. Based on this opinion, it was clarified that shouting Fire in a crowded theater was protected by free speech… even though it is not a sensible idea.  There is one caveat to that, lest you think I am encouraging wild hollering at the theater!

If prosecutors can prove that someone incites “imminent lawlessness” by falsely shouting “Fire” in a crowded theater, then they can still be charged and convicted. Merely shouting “Fire” is protected. A change/clarification since 1969.

I know I got a little carried away with lots of words for this blog. But… this day in history grabbed me with lots of effects on the law. I will try to be shorter tomorrow… with lots of pic o’s to make up for it!! I promise!

Which leads me to the feeling that we need something of a smile for our pic o’ day. Isn’t life Grand!

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Does This Coffee Have Value?

You’ve heard the expression, “One man’s trash is another man’s treasure“? Or… “Beauty is in the eye of the beholder“. Well, this blog is about value, even when there are differing opinions. More on that in a second.

But first, I don’t even know why I am posting this for Our Monday Blog, but it just makes me laugh. When I saw this on instagram (I would give credit but I’m not sure where I saw it), it spoke to me about misplaced good intentions. The holiday season…A lot of giving and good thoughts, but maybe not good ideas.

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(See what I mean?)

If you are in search of a tree, this might be an idea, if you have a cat. I guess it’s planning for the inevitable. (Since I’m not a cat person, I am posting this as sent to me. Makes sense.)

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I always feel that a discussion of coffee on a Monday, is timely. I’d say not to read this during breakfast, but there are people drinking this coffee during their breakfast. It’s the story of Kopi luwak.

The Specialty Coffee Association of America describes its taste as “a general consensus within the industry…it just tastes bad”. Yet, it is a very expensive “bad coffee”. Why? Well, here’s the story.

Kopi luwak is the name for any coffee beans that are collected from the excrement of civets. The beans are fed to these cat-like animals, collected, roasted, aged and then brewed. Here is the wikipedia story. It makes it easier to just attach, because I really don’t want to write more about the specifics. (Much like discussing Indianapolis Colts football. Best not to discuss!)

For the point of this blog, I do need to reference the price of this Indonesian coffee. Retail prices reach as high as $700 for 2.2 pounds. I checked on Amazon for the farmed version, and it is currently selling for about $25 for a 3.5 ounce bag and marketed as “The World’s Most Exclusive Coffee“.

To me, this story shows again that one person’s trash is another person’s treasure. What is the value of something? Whatever someone is willing to pay. It probably also reminds of of the power of marketing.

I have written about this concept value in other blogs. In a jury trial, when discussing losses, it requires a juror to consider the evidence of value, not what they necessarily consider the value to be.

If someone lost their entire warehouse of Kopi luwak to a flood, it would be easy to consider that there is no value, and therefore no loss. And yet… there is value because critics admit, “It’s not that people are after that distinct flavor. They are after the rarity of the coffee”.

And finally, our 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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Part of a Tribe

Is it possible to have a police dog testify in court?

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Just wondering!

We all have a feeling of wanting to belong. Psychologists call it wanting to be a member of a tribe. Restrepo and Korengal were two documentary movies based on platoons of American soldiers, who survived in war because of their desire to belong in their “tribe”.  So even war depends on belonging.

A group of lions is known as a “pride”, and a group of hogs is a “herd”. Geese in collection are a “gaggle,” and when in the air they are a “skein”. A gathering of foxes is referred to as a “skulk”, a gathering of quail is a “covey.” How about that? They all belong.

In Virginia, a civil jury consists of 7 people and and criminal jury consists of 12. In most states, juries are made up of 12 people. States such as Florida and Connecticut have experimented with 6 and 9 person juries.

No wording in the Constitution requires that a jury contain a specific number, to be considered a jury. Mathematicians have come up with formulas to figure out what is an acceptable amount of people on a jury, to make sure that there is justice. I have always speculated that the psychological principle of belonging can also impact the mathematics of what makes a fair amount of jurors. Just my speculation.

I guess that is why some states do not require a unanimous finding of all jurors, to determine a conviction. As a final note, there is a lot less at stake when considering what makes a quail belong to a covey!  Right?

This is one of those blogs that I could have written for a long time. Instead… just something to think about.

And for pic o’ day, this would give me no flying confidence!

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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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An A or B

Completely unrelated, but it makes me laugh! I guess some dogs are just wicked smart!

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I think you can make statistics prove anything that you want to prove. For instance, the year that the Golden State Warriors broke the NBA’s single season win total; their guard, Klay Thompson, autographed a toaster for a fan. Thereafter, they went on to a 31-2 record. Does that speak to the power of toasters?

It just means that sometimes statistics don’t explain reality. Meyer Friedman was a cardiologist who for decades ran a busy medical office in San Francisco. In the late 1950s, he and his partner, Dr. Ray Rosenman, began noticing similarities in their patients with heart disease. It wasn’t simply what their patients ate, or their genes inherited, or family history that affected their susceptibility to heart attacks; it was also how they lived their lives.

These patients“, Friedman noted, “demonstrated: a particular complex of personality traits, including excessive competition drive, aggressiveness, impatience, and a harrying sense of time urgency. Individuals displaying this pattern seem to be engaged in a chronic, ceaseless, and often fruitless struggle—with themselves, with others, with circumstances, with time, sometimes with life itself.

These people were significantly more likely to develop heart disease than other patients—even those who shared similar physical attributes, exercise regimens, diets, and family histories. Looking for a convenient and memorable way to explain this insight to their medical colleagues and the wider world, Friedman and Rosenman found inspiration in the alphabet.”

They classified this behavior as “Type A.” Now we all know that term.

Contrary to Type A behavior was Type B behavior. Unlike the hurry-up, horn-honking behavior; people displaying Type B behavior were rarely in a hurry and didn’t feel stressed by life’s demands.

In their research, the doctors found that Type B people were just as intelligent and  ambitious, as Type A’s. But, displayed their ambition differently. In writing about Type B , the cardiologists explained, “He may also have a considerable amount of ‘drive,’ but its character is such that it seems to steady him, give confidence and security to him, rather than to goad, irritate, and infuriate, as with the Type A man.” One key to reducing heart disease and death was to help Type A’s learn to become a little more like Type B’s.

These classifications and findings of these heart doctors are interesting to me, because they also are linking stress to health. With our clients, I always believe that their most significant damage is related to stress and emotional trauma. And these doctors would probably agree.

As a side note, Dr Friedman died at the age of 90. Maybe he taught himself to slow it down! Although, sometimes I think that some of the stress that Type A feels… is stress from the actions (and lateness) of Type B.

And for pic o’ day, I always say that I want people to pay me the compliment that I am having a bad hair day! Just sayin’!

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The Carpenter and His Tree

Since it’s Friday, let’s just dive in… how about it!

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Not long ago, a paralegal said to me after one of our clients left, “she is always so upbeat”. She was upbeat, despite the fact that life was so difficult. I knew the hardship that she was going through. Still, she always seemed so positive. It reminds me of the story of the carpenter and his trouble tree. A good reminder.

A carpenter had just finished a rough day on the job. A flat tire made him lose an hour of work. His electric saw had broken at work. His old truck refused to start, when he tried to get home from work. So, a co-worker drove him home. The whole ride he sat in still silence.

Once they arrived at his house, he invited the co-worker in to meet his family. As he walked toward the front door, he paused briefly at a small tree; touching the tips of the branches of the tree with both hands.

When he opened the door, there was an amazing transformation of his countenance. His tanned face was filled with a smile and he hugged his two small children and gave his wife a kiss. He looked so happy.

Afterward, he walked his co-worker to the car. Again, they passed that same tree that he had touched with both hands. The co-worker couldn’t help it. He had to know the significance of that tree. Why had he touched it with both hands?

Oh, that’s my trouble tree“, he replied. “I know I can’t help having troubles on the job. But one thing for sure, troubles don’t belong at home with my wife and the children. So I just hang them upon the tree every night when I come home. Then, in the morning I pick them up again.”

“The funny thing is”, he continued, “when I come out in the morning to pick them up, there aren’t nearly as many as I remember hanging there from the night before.”

I think my client was saying the same thing with her positive attitude.

I hope you have a great weekend!  And for pic o’ day.

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Lessons From Pilots

I am treading on dangerous territory because I am about to discuss plane crashes. I say dangerous because I don’t like to fly; which also means that I don’t enjoy plane crash thoughts. So, you can already be assured that this is a positive blog. I promise promise!

Studies of plane crashes between 1940-1990 always showed the same statistic. 65% of the time, airplane crashes were due to pilot error. It didn’t matter what the airlines did.

They increased pilot classroom training. They implemented aviation reforms. They required specific flying hour limitations. Still, no matter what the airlines did, bad decisions in the cockpit still caused crashes 65% of the time.

Then that statistic changed! In the late 1980’s, airlines introduced realistic flight simulators. Now pilots could practice landing in a sudden downdraft thunderstorm, or with only one engine. They could learn what it was like to land a plane with landing gear problems; or fly without wing flaps.

Their experience of problems was better than training by “chalk and talk”. They were doing, even though it was by simulator. Federal Aviation representatives labeled it as “the goal is to learn from those mistakes when they don’t count; so when it matters, you can make the right decision”.

This training process was coupled with a method called CRM (Cockpit Resource Management), which made flying a team effort to include the other members of the flying team. Soon, pilot error as the cause of crashes had been reduced to 30% of all crashes, which also meant that there were far less crashes. More specifically, it now became safer to fly than drive in a car. See… positive!

I believe that same thought applies to trial work. Experience and team! No matter how many seminars you attend on trial and depositions, nothing replaces actually doing it.

What does this mean at the firm? Well, I always try to make sure that our lawyers have a second chair with them. That’s part of the team concept. Also, it’s experience in the courtroom. It doesn’t mean that we don’t keep attending seminars. That’s the chalk and talk of our work.  Unfortunately, there is no substitute for experience. Right?

And for pic o’ day, this isn’t to mean that I don’t enjoy work. Still…. he makes me laugh!

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Value of the Heart

Many times in jury trials, I will describe my client’s losses and actually itemize the damages. That may include medical bills, loss of wages and even future loss of wages. It might also include a permanent injury.

Sometimes, I will make the argument when the evidence supports it, that loss of enjoyment of life is a greater loss than all the other mathematical damages for which there can be an exact mathematical tally. Rarely is it possible to put an actual value for emotional losses. However, over the weekend, I saw a video that does a good job in putting a value on emotions.

For the blog, I am not attaching the video, but here is a screenshot, in case you want to watch it. I saw it on Facebook.

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The host/man-in-video goes to people walking their dogs and asks if he can buy their dog. Most of the time, he offers 100k for the dog and sometimes even offers more. He even opens up his briefcase to let them see the cash. They all say no!

Why? The general consensus is that you cannot put a value on happiness that their dog brings to them. To some, that dog may just seem like property that can be easily replaced.  But the owners of those dogs think differently. The value of enjoyment of life. Quantifying the emotion of happiness. A loss that would be difficult to replace.

If you can somehow convey that loss to a jury, then it is more believable that medical bills and loss of wages actually pale in comparison to matters of the heart. To see those dog owners turn down that offer of cash was heartwarming.

And for our pic o’ day, I have to admit that I laughed… and related a little bit to this. The adventures of the grocery store!

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