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More Than A Bell Rung!

How about some motivational thoughts for Our Wednesday Blog?

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I guess it’s better than someone just simply daring us with some attitude…right?

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So let’s get down to business. This blog is about football and brain injury. I immediately get serious!

Jeff Bezos once worked at a hedge fund and was growing increasingly frustrated because he was unable to match the returns of another investor, Bernie Madoff. (Of course we all now know that Madoff’s yearly investment returns were all fake)

Bezos reportedly confided in Ted Leonsis (owner of the Washington Wizards and Washington Capitals) that his frustration caused him to quit his hedge fund job at D.E. Shaw. He then started a little company called Amazon. The cause and effect.

I compare a brain injury to cause and effect. You can tell if a person has a broken arm because you can physically see their cast. There is no cast for the brain. So, it’s not unusual to miss a brain injury. It’s why they are called  the “walking wounded”. The cause is usually related to trauma but the effect is usually not known until it’s too late.

Years ago, the defense called their head trauma expert to the witness stand in one of our brain injury cases. We had already put our case on and had several treating doctors testify that our client had a brain injury. Now, this defense witness had been identified as a doctor who was going to disagree with all the treating doctors.

He admitted that our client had hit her head. He even admitted that she might have had a concussion. But he went on to say that it was just like a football player who just “had their bell rung, but that didn’t mean that they had to come out of the game”. In essence, his testimony was that our client’s brain injury was no big deal.

The NFL has announced that they are considering a radical rule change. Here is an article explaining that the NFL is poised to eliminate kickoffs. Why? According to a recent study (Here) 16% of football injuries occur during the kickoff, and those injuries have a high probability of concussion related.

It probably will not happen this year. But, it would not surprise me to see no kickoff next year, with the ball starting at the 25-year-line to start the game. I suspect they are still working out the issue of onside kicks because that adds another dimension to the end of the game… and trying to catch up.

All I know, fortunately juries would no longer put up with a hired defense expert saying such nonsense as though a head injury is no big deal when you are wearing a helmet. That’s because the NFL and its former players are putting head injuries in the headlines. Plus, no one is wearing a helmet while they drive. So these injuries are possibly even worse.

And for pic o’ day, I completely agree!

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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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When To Settle!

I missed blogging yesterday. So, let’s start with some food thought… move to the legal part of the blog (which you are probably thinking  is highly unusual) … and on to some “exercise”. A real plan!!!

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It takes two to tango is a phrase from a 1952 song that has become synonymous with cooperation. President Ronald Reagan used it when discussing Russian and American relations during a 1982 presidential press conference. I have heard it applied to the negotiations during lawsuits.

If one party does not want to settle, it makes it nearly impossible to resolve a case. When a client asks me early in the case whether I think their case will settle, I sometimes mention the Two to Tango analogy. However, the “want to settle” may get influenced, if the assigned judge in the case tells the parties that “you better get this settled“.

I have seen corporations like Walmart and Food Lion take the corporate approach that “you can file suit against us, but be prepared to go to court because we don’t settle cases“. Ultimately, their yearly financial data will tell them if that policy makes financial sense in handling lawsuits. And that can lead to a change in corporate policy.

There are some lawyers that will not take cases against corporations with a no settlement policy, They know that they will have to file suit. And that’s what these companies count on in coming up with that claim policy. On the flipside, not settling cases can lead to significant defense costs and large jury verdicts. That is the corporate balance to weigh.

Yesterday, USA Today had a story (here) titled Trump golf club settles suit from former members seeking refunds. President Trump has previously said that he does not like to settle lawsuits and prefers to fight them. But in this case, he has settled with former members at his golf course in Florida.

The original lawsuit had been brought by golfers who previously purchased memberships at the Ritz-Carlton Golf Course, before Trump bought it in 2012. The golfers sued, claiming that he failed to return their previously refundable deposits that ranged from $35,000 to $210,000, after the ownership change.

According to court documents, Trump National Golf Club agreed to pay nearly $5.44 million to the members who were part of a class action. After legal fees, each of the plaintiffs will end up with about 71% of the refunds they sought, according to the ruling.

When I saw this article, it reminded me of a case that I handled long ago against Food Lion. My client had received about $4000 in chiropractic care, as a result of a fall in one of their grocery stores. Because Food Lion’s strategy was to never pay (at that time), we went to trial in Norfolk Federal Court.

Magistrate William Prince (a former defense lawyer before he went on the federal bench) did not think much of my claim, and dismissed it at the end of the two day trial. He did not let the jury return a verdict after sitting for the entire case. As an energetic crazy young lawyer, I was truly ticked off with the dismissal of the case… and appealed to the 4th Circuit.

At the conclusion of the appellate argument, it was clear from the questions of the panel that the justices were going to rule for my client, and all indications seemed to point to a return of the case back to the trial level, solely on the issue of damages.

One of my great memories from of all my years of trial work includes this case. That’s because, on the way out of the appellate court room that day, the defense attorney turned to me and said, “This is one case that Food Lion should have settled long ago“.

Soon thereafter, I received a call from that lawyer that led to a very satisfying settlement for my client. We caused a change in corporate policy… at least for that day!

 

And finally, in the introduction I promised something about exercise. This counts… right?

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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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Rod Tidwell’s Brain Injury

First, a bit of work strategy to get us started!

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The movie Jerry Maguire is filled with classic moments. Like the kid (character: Ray Boyd) who randomly asks Jerry Maguire, “Did you know the human head weighs 8 pounds?”. Or when Jerry Maguire asks Rod Tidwell, “Do you want this jacket? I don’t need it. I’m cloaked in failure.” because he had lost representation of the number one pick, the night before the NFL draft.

And anyone that has seen the movie or ever heard anything about it probably remembers the two quotes that became classics. “Show me the money” and “You had me at ‘hello’“.

But the real lesson from this movie is the mindset about brain injury, and thankfully how much awareness has changed since that movie. So let me summarize to make the point.

Near the end of the movie, Cuba Gooding Jr’s character (Rob Tidwell) suffers a horrible injury at the end of the “big game”. Gooding is unconscious for several minutes, while his  distraught wife watches in horror.

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Then miraculously, he wakes up and celebrates. No longer a worry that he died in the endzone. Instead, he is breakdancing in the end zone. I am not a doctor, but that just seems like the worst possible move, after an apparent serious head-and-neck injury, just mere seconds earlier.

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The point of that is how far we have come. In the early 2000’s, I was in the middle of a brain injury jury trial in Greenville County. The defense expert testified that my client’s concussion was merely like having “your bell rung on the football field”. I believe that doctor knew better than to minimize the concussion suffered by my client.

Now thankfully, we all have been more educated on how serious a concussion and brain injury really is. Not even Hollywood would have Rod Tidwell breakdancing off a stretcher.

 

And finally, this pic o’ day cracks me up!

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Life Expectancy Table Thought

Injury cases that I take to trial, typically include a claim for a permanent injury. In those claims, I introduce a life expectancy table from the code; so the jury can consider how long my client is expected to live and the length of effect of the permanent injury.

If you really stop and think about a life expectancy table, it’s not in the positive thinking department. Unless you think, “No worries… I am going to outlive that!”.

But the reality of a life expectancy table is that it really could also be named a death expectancy table. How do we really deal with that thought.

Several years ago I saw a story that I saved, that deals with a man who was dealing with the fear of death.

A sick man turned to his doctor as he was preparing to leave the examination room and said, “Doctor, I am afraid to die.  Tell me what lies on the other side.”

Very quietly, the doctor said, “I don’t know”.

The man replied, “You don’t know?  You’re, a Christian man, and don’t know what’s on the other side?”

The doctor was holding the handle of the door. On the other side came a sound of scratching and whining. As he opened the door, a dog sprang into the room and leaped on him with an eager show of gladness.

Turning to the patient, the doctor said, “Did you notice my dog?  He’s never been in this room before. He didn’t know what was inside.  He knew nothing except that his master was here. But, when the door opened, he sprang into the room without fear.

I know little of what is on the other side of death,  but I do know one thing… I know my Master is there and that is enough.”

I love that thought.. even though it does make me wonder why a dog is wandering around a doctor’s office. 🙂

The story reminds me of this saying of comfort:

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On the light side, our pic o’ day is about time. For me, it has such a familiar ring to it!

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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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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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A Mind Made Up!

I call it the Firefighter Fact Experiment (research paper here) I am a nut for psychological research studies. (which probably explains why I sometimes write about them in Our Blog) Plus, I hearken back to my political science college days, because that was always such a moving target of information anyway. (Notice how I just rambled on there about nothingness?)

So back to my Firefighter Fact Experiment and how it relates to kneeling during the National Anthem. Do I have your attention or are you so bored of hearing about the kneel down, that you are almost about to stop reading the blog. Wait… that’s exactly what the research says!

Two groups were given a story about firefighters, and then a questionnaire to answer about the fact pattern. The study was done by Anderson, Lepper and Ross in 1980. (attached above).

One group was given information that proved that successful firefighters are also risk-takers. The second research group was given information that supported the idea that firefighters are not risk-takers at all, and that’s the very reason they are successful. Complete opposite fact-patterns. The participants then filled out their questionnaires.

After that portion was completed, the research facilitator then announced that the information that they had just read “was completely fictitious. I made it up. There is no evidence one way or another“.

In a follow-up study after this announcement, the participants were then asked what they believed about firefighters, and why. In each study, the participants still believed the original information that they had received. The announcement that it had all been made up did not change their opinion. They couldn’t give reasons why they believed the different views on firefighters and risk-taking. They simply had formed that opinion and it was not changed by the announcement.

In jury trials, we call that the trial story. Once jurors make up their minds, it is typically difficult to get them to change their minds.

I think it’s the same way with political issues. Specifically, I have noticed that about opinions on kneeling during the National Anthem. Once an opinion is set, people don’t usually change their opinion. In fact, they just get stronger about their opinion. And I suspect you would also say to me right now.. “And they are not afraid to just keep repeating their opinion”. It’s the psychological effect of believing what I believe… because I believe it! And it keeps Facebook with many postings!

 

And for pic o’ day, sometimes it’s crazy what strikes my funny bone!

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