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A Thought on McDonnell

Yesterday  I led off with a mention of the Supreme Court’s ruling on Bob McDonnell. Lo and Behold, (I have always wondered who came up with Lo and Behold. I looked it up and learned that it comes from 18th century literature of “look and see”, which makes no sense to me. So, no charge for such blog inclusion!) … so back to our regularly scheduled programming of “Lo and behold”.

Anyway, it caught my attention that McDonnell’s conviction was vacated by a unanimous ruling of the Supreme Court. The Court did note that it found the case to be “distasteful” and full of “tawdry tales”. But, elected officials will breath a sigh of relief about free trips and free lunches with lobbyists now.

In the meantime, the government will have to decide if it will retry McDonnell. My guess is no. Also, Bob will be receive his full entitled pension; decide if he wants to get back into politics; or become president of either Regent University or Liberty University. That’s just my guess.

Also, the judge in the Federal court jury trial, Judge Spencer, will now always be remembered for this case and that his rulings were overturned. No judge likes to be overturned on appeal.

And what does Bob McDonnell think about the Supreme Court’s ruling. Well, apart from a great sense of relief, I think that his attorney verbalized it best when he said, “We thank the Supreme Court for unanimously bringing justice back into the picture for the McDonnells”. Now that’s a parting shot at Judge Spencer!

And for pic o’ day, maybe some “invitation advice for your July 4th picnic:

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Some Snow and a Doctor’s Opinion

After this weekend, I knew I needed to mention the snow; make a reference to an upcoming trial… and of course, say how glad I am that Peyton Manning is going to the Super Bowl!

In a couple of weeks, I have a jury trial where the defense has identified a doctor to testify about my client’s injuries. Not surprisingly, the hired doctor opinion is that the injuries are not that significant. (Did I mention the defense hired him?)

In fact, his testimony identified by the defense attorney, is that my client should have fully recovered after 6-8 weeks. That’s because the doctor claims that the client “only sustained soft-tissue injuries” and that all such soft tissue injuries resolve within 6-8 weeks.

That doctor’s testimony is no surprise because I have seen him identified by other defense attorneys to testify in several past cases. In those cases… he also testified that my client’s injuries should have resolved in 6-8 weeks. In his world, everyone is the same.

So now to the metaphor of the snow. (my blog excuse to post snow pictures!)

Here’s an “out-the-window” picture of the snow on the Virginia Beach boardwalk this weekend.

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And here are two pictures of the snow looking out of the house in Richmond. Hint… not all Virginians were hit the same!   It’s all how and where you look at it.

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That doctor testifying for the defense reminds me of the quote, “As a rule we disbelieve all the facts and theories for which we have no use.”

– William James

And for our Monday pic o’ day, more from point-of-view. Some “joy”:

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The Little Foxes in Law

Song of Solomon 2:15 says to catch the foxes, the little foxes, that spoil the vines: for our vines have tender grapes.

Bible commentaries explain that foxes love grapes on the vine, and they usually eat them in autumn. More from commentaries in explaining this verse: Foxes do the most damage to grapes when the clusters are young and tender.

That verse can be applied to many things in life. For the purposes of this blog, I look at it as paying attention to the details. Or the details will become bigger and require attention. In the practice of law, it’s knowing what to pay attention to and what to ignore.

I have heard jury consultants focus on whether to wear cuff links, or what watch to wear, or whether to wear a dark suit. Those might be important but you can’t let the foxes eat the grapes of your case. Failing to pay attention to the details of the case.

Over the last 12 months, I have seen lawyers in the Firm work on some cases that other law firms have rejected or withdrawn because they did not see the probability of recovery. That could be the foxes of laziness, lack of knowledge or even failing to listen to the client.

In the cases taken after other law firms have rejected or withdrawn; many times the witnesses were never interviewed by the previous firms, or insurance coverage was missed by not following up with owners of the cars or members of household who did have coverage. A few of the cases included police officers who investigated the crash and were never interviewed or asked to provide important investigation notes that included witness to the crash.

It’s easy to worry about trying to get more cases instead of focusing on the work that is already here. That is when the foxes eat the grapes.

One celebrity was once asked how he found success in relationships. He said that he realized that he needed to stop focusing on trying to be charming or keeping up some act. Instead, he realized that the key to a good date was to put that all aside and just pay attention to her.

And finally, today is National Coffee Day. Apparently, that means that a lot of coffee shops are giving away free coffee. Starbucks says that for every pound of coffee that we buy, they will buy a tree for a farmer.  Sounds more like National Arbor Day, and I don’t know what that means. I Probably just need another cup of coffee.

And for pic o’ day…

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The Egg Shell Head

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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Bumper Stickers on the Jury

Several years ago, I was about to begin in North Carolina. Our trial team loaded up for a trial of indefinite length and checked into the only motel in town. We were told at the front desk that a Walmart was coming soon. The manager also said that their phone book was the only one in North Carolina that was always smaller than the year before… because people kept moving away. What can you say to that?

It was Friday afternoon and the trial was to start on Monday. So, we swung by the courthouse to pick up the jury panel list and we got to work. We started driving by the houses for any indication of what kind of juror may live at that house. That included looking at their cars to see the bumper stickers on the back of their bumpers.

I realize now that driving by jurors homes is a bit intrusive. I had only been practicing a couple of years, so I suppose that I made a lot of crazy decisions back then. Of course, I later learned that turning down the offer was also a bad idea, as the verdict came in for less. As the judge said at the beginning of trial, “Counselor, you need to settle this case. Everyone in this county has nothing, and they want everyone else to have nothing”.

The bumper sticker “viewing” was some idea that I had heard at a seminar. Later, I saw a movie that included that question in jury selection. Apparently that Hollywood movie writer had heard the same idea.

Bumper stickers probably aren’t quite as popular now, but maybe we should come out with a give-away bumper sticker that reads, “I hate bumper stickers”.

With that in mind, I saw these pictures of bumper stickers posted online that were recently seen on the road. What kind of jurors are driving these cars?batman

Anddog

And finally…

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The Reasonable Doubt

There is a closing argument that has ‘made the rounds”. Why it is apparently fiction, it’s still has Hollywood-like impact to explain the concept of reasonable doubt in a criminal trial. The story goes something like this:

A Defense attorney was giving his closing argument in a case where his client had been charged with murdering his wife. Prosecutors had used circumstantial evidence because her body had never been found. Knowing that all he had to do was create a reasonable doubt in the minds of the jurors for a finding of not guilty, he decided to use a creative closing argument.

Defense counsel emphatically proclaimed that his client was not guilty of killing his wife, because she was still alive. Then, he told the jury that he was going to prove that she was still alive. He then pointed his finger at the back door and said, “I will prove that she is still alive because she is going to walk through those doors right now”.

Every juror turned and looked in the direction of the defense lawyer’s outstretched arm. That’s when the defense lawyer said that the jury had to find his client not guilty. The fact that they had looked at the doors with the anticipation of the wife walking through them, was proof that there was reasonable doubt that his client had killed his wife. The defense lawyer then sat down.

The prosecutor slowly rose from his seat to begin his closing. He too pointed towards the courtroom doors. Then, he calmly spoke as he looked at the jurors, “I know for sure that the defendant killed his wife. Here is how I know. Every eye in this courtroom looked at that door when defense lawyer told you that the wife would be walking through the door. Every eye but…the defendant didn’t bother to look, because he knows  that she’s not going to walk through those doors.  He knows,  because he killed her.”

I was reminded of that story when I read a story yesterday in the Richmond Times-Dispatch titled An ex-Midlothian man’s trial, witness says he saw woman presumed slain.

The writer is reporting that the defendant defiantly testified that he did not kill his girlfriend (Story here). Then, he went on to explain why her blood was in his house.

The defense then called a witness to testify that he had recently seen the girlfriend on an airplane flight, as she walked up and down the aisle. He explained that he knew it was her because he had seen her picture “on every telephone pole” near his house. Then he testified that, “If this is not the lady on the plane, then she has an identical twin out there, and I mean identical”.

The prosecuting attorney then stood to cross examine that witness. He was able to establish that the witness had gotten confused over the defense and prosecuting attorney by calling the prosecutor by the defense attorney’s name. Both wear glasses and have thick hair.

The witness admitted to getting the lawyers mixed up, but he also added that he had provided that information several months earlier to law enforcement and they told him to keep silent about seeing the woman on the flight. We will see if that testimony created reasonable doubt when we learn of the verdict.

 

added note: Defendant was found guilty.  Question answered!

And for pic o’ day, we have a cartoon of “insurance evidence”.

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The Value of a Finger

During my second year of law school, I started looking for my first job at a law firm. I was hired as a law clerk at a busy Oklahoma City personal injury firm (Homsey Law Center).

Initially, I was assigned as an all-purpose clerk, which is code for duties that included going to the bank… and stacking the cokes and diet cokes in the kitchen. My office was in the storage room/closet. After they put my desk in there, it was still the storage room/closet, that now had a desk pushed against the wall. I was just excited to have a legal job.

Soon, I was assigned to the worker’s compensation section which included working for an attorney who was very long suffering with my lack of knowlege. On the first day as he was describing the laws of an Oklahoma job injury, he also showed me his hand. He did so to explain that he had lost a portion of his finger on the job when he was in college. Then, he went on to explain what he had been paid for a partial loss of a finger, and what it would mean under those existing Oklahoma worker’s compensation laws. Basically, he was explaining the value of the loss of a finger.

Over July 4th, it was reported that New York Giants defensive player Jason Pierre-Paul was injured in a fireworks accident. Soon, it was reported that the injury had caused him to have his right index finger amputated. That led everyone to wonder if it would impact his football career. That is still a question.

Prior to the injury, Pierre-Paul had been offered a franchise tag (How NFL teams can contractually control players who have not signed) one-year offer of $14.8 million dollars, because he and the Giants had been unable to agree on a long term deal. At that time, the Giants had reportedly made a contract offer of 60 million dollars over 5 years with 30 million of it guaranteed. Now, it’s being reported that the long term offer has been withdrawn and there is question about the franchise tag one-year offer.

The loss of Pierre-Paul’s index finger may have significant financial consequences to him after the report that the long term contract offer has been withdrawn. It is a reminder that a person’s loss from injury has different values because each loss has its own factors.

I regularly get asked the question, “what is my case worth?”. Sometimes I will have a person ask me, “Isn’t it true that the insurance company is supposed to pay me three times medicals?”. I have heard people say that they were going to wait to hire a lawyer because they first wanted to find out what the insurance company was going to offer for their case. The two stories above show the difference in potential claim value, even thought they both lost all or a portion of an index finger.

There are a lot of factors that determine the value of a claim. Of course, it helps to have experience and to  have handled other claims similar, as well as understanding what juries might consider in determining the value of a case at trial. What it doesn’t include is some mathematical equation for the injury, and it shouldn’t include the false hope of waiting on an adjuster to say what is fair. Just my 2 cents.

And since it’s Monday, I figured that we needed to be all business for pic o’ day!

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Expert Testimony

I missed the blog yesterday because we couldn’t get the platform to work. To work isn’t really the technical reason but that’s why we had to bring in the computer experts to fix it.

Most of our cases involve hiring experts to testify about the facts or medical treatment in the case. The legal definition of an expert is basically someone who has more knowledge or training on a specific topic than the average person. It doesn’t take a tremendous amount of “expertise” to be qualified as an expert.

In a recent case, we hired an engineer to give us an opinion about a piece of equipment. In discussing his expertise, we learned that he and his group had recently been experts in a football case.

That piqued my interest. Couldn’t help but ask about the case. Then I learned from one of our attorneys in the office that this expert had also been involved in “Deflate-gate”. He and his group had been retained by NFL quarterback Tom Brady’s defense team, to give an opinion regarding whether those footballs in the AFC Championship game could naturally have lost pressure.

After I heard that, it caused me to recall the words of one juror who said to me after one trial a while back, “we didn’t pay much attention to the experts on either side. We listened to the parties and decided the case on their testimony, because we just expected the experts to say what the attorneys wanted”.

If every jury thinks like that, it sure puts evidence into perspective. It also gives confidence that cases should really come down to whether the jury believes the plaintiff or the defendant. Despite what silly tort reformers say, I still think that juries are much smarter than what some people give them credit for knowing.

As a Colts fan, I am amazed if anyone believes that the atmosphere caused the Patriots’ footballs to deflate… while the Colts remained the same. Come on!

And for pic o’ day, I thought I would go with some workout motivation:

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Sadness and Mental Anguish

Huffington Post recently wrote about Dennis the Dachshund, who had ballooned up to 56 pounds. He had been on a diet of White Castle burgers and pizzas.  When a nursing student saw his condition, she talked her relative into letting her adopt Dennis.

With a new diet of dog food and a bit of exercise, Dennis dropped 44 pounds. He was now down to an appropriate size and weighing 12 pounds.

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Unfortunately, he continues to deal with his excess skin after his weight loss. In the good news department, his owner says that his personality is shining through and he no longer seems depressed.

There’s an advertising campaign for Hotels.com that makes me laugh every time. Captain Obvious states the obvious about travel and making plans. Usually in the ads, someone will tell him, “thanks, Captain Obvious”, after he has stated the obvious.

I feel, to some extent, that I am about to state the obvious. People who suffer injuries in car accidents feel down and sometimes truly depressed. They no longer can do the things that they did before. Unlike Larry the Dachshund,  this is caused by someone else not because of a diet of White Castle burgers.

When discussing damages to an adjuster or a jury, I try to focus on the damages on the inside rather than just the outside. I believe that the damage of sadness and mental anguish is greater than the damage of wearing a cast.

I’m not sure that I have always done a very good job of conveying such damages. However, I am always curious when someone suggests that “Isn’t a case worth three times medicals?”. The longer I practice, the more I realize that such loss is not a mathematical equation. In almost every case, the client will usually say along the way, “I just wish that I was back to where I used to be”. That is a better measurement of the true loss.

And for pic o’ day, I am posting a picture that was just sent to me, from a “few” years ago. It’s my parents all dressed up for Thanksgiving. Now that makes me smile!

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Not the Tricks

There used to be a cereal commercial for Cocoa Puffs where Sonny the Cuckoo Bird would scream that “I’m cuckoo for Cocoa Puffs”.

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I imagine that part of the reason that General Mills knew that it would be such a hit as a cereal, was that they literally and proudly stated on the box that the cereal was made with real Hershey’s chocolate.

Of course, if parents really believed that they were doing a good thing by serving that to their kids…. then someone is cuckoo. However, I was reminded of that cereal advertising…

(This is kind of like a mid-blog commercial to say that I’m glad that General Mills has modified the ingredients of Cocoa Puffs  to make it almost as healthy as a Pop Tart or maybe candy corn, and yes that is sarcasm. Now back to our blog! )

As I was saying, I was reminded of that Cocoa Puffs advertising when I recently read a sales list that suggested doing the following to be a successful sales person:

The world’s best salespeople take charge of sales meetings by adjusting their chair’s seat height. They begin meetings with their chair adjusted slightly below their customer’s, which subliminally signals that the customer is in a dominant position. As the meeting goes on, the salesperson will slowly elevate his or her chair in order to sit slightly higher than the prospect—putting them in a dominant position. The slow transition subliminally stages the prospect to be more receptive to suggestions from the salesperson. And if they can’t adjust the chair, they simply change their posture to achieve the same effect.

Now, my impression of that sales recommendaton borders on nonsense and unbelievable. Or, it’s at the intersection of offensive and the advertising of a chocolate-covered cereal.

What am I saying? What ever happened to honesty and integrity? There are still people who believe that the most successful lawyers are the ones who are slick and tricky.

That’s why it was refreshing when I recently attended a trial lawyers’ seminar where the speaker stated that the most successful trial lawyers are the ones who honestly present their case and have jurors truly believing the evidence. That there is no place for tricks in the courtroom, and that jurors see through that anyway.

I guess a cereal doesn’t have to be covered in chocolate to be profitable!

And finally, because it is officially spring… our pic o’ day:

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