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Currently Viewing Posts Tagged Verdict

The Pricing and Anchoring Effect

Why can’t we just negotiate with real numbers. Why do car sales cause us to feel like we have to be pumped up before we go into the dealership to buy a car. What does the car sticker price mean to us. Or some deep energetic voice on a car commercial who is screaming at us that the price is LOWER THAN THE MANUFACTURER’S PRICE. HURRY IN!

The principal of price anchoring was proven in a 2005 study by psychologists at MIT. (Inc.com) Or as the psychologists proved, “Your first perception lingers in your mind, affecting later perceptions and decisions”.

Attachment-1

Here is what that means based on their experiment:

The researchers were selling a wide range of items that included French wine, chocolate truffles and even a cordless keyboard. It was an auction that came with a twist for the MIT students that were bidding on the items.

Before the students could bid, they were asked to write down the last two digits of their social security numbers. Then, they were asked to base their auction bidding on whether they were willing to pay more or less than that unrelated two digits. For instance, if their last two digits was 38, they had to decide whether they would pay $38 for the keyboard or bottle of wine. Finally, the students were then asked to write down the maximum amount (like an eBay auction) that they were willing to pay for that item.

In reality, those two digit social security numbers should have had no relevance on the amount that the students were willing to pay for an item. However, the researchers determined that on average, students with higher numbers were willing to pay 3% more for the items because of those meaningless social security numbers. A totally unrelated price anchor.

The psychologists determined that meaningless anchor numbers can have a strong impact on financial decisions. Despite an item being priced too high, when the inevitable discount is offered, the frontal cortex of our brains are convinced of the bargain.

Now imagine how that applies to jury verdicts. It makes it difficult as a lawyer to know the amount to ask for in a jury trial. As a lawyer, I may be asking the jury for an amount that is truly the amount that my client is seeking. However, our brains are conditioned to be anchored by an amount… and then expect a discount.

And for our pic o’ day… here’s an amazing deal right here:

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The Win/Loss Column

A while back I had a client ask me if I had ever lost a case. I guess it’s no surprise that no one advertises the cases that had a bad result. It sometimes is difficult to categorize a win or loss because the verdict might be more than the offer from the insurance company, but less than the demand for settlement. To me, that’s a loss too.

Unfortunately, I have had worse results than that. During my second year of practice, I represented a man who had got beaten up by another man. So, I filed a lawsuit for damages because of my client’s injuries… from being punched.

The defendant denied everything and claimed that my client had started the fight. Of course, there was that small matter of the obvious. The defendant was about 250 pounds and my client weighed about 90 pounds, if he was soaking wet and full of bananas. I suppose that the saying, “it’s not the size of the dog in the fight, it’s the size of the fight in the dog”, could have been argued.

The trial only took a couple of hours. The jury came back with a verdict. The piece of paper was handed to the bailiff, who handed it to the Judge. I was looking closely at the Judge’s face for any clue about the verdict.

The Judge began to read the verdict. “We the jury find for the plaintiff”. The Judge paused. Then he continued, “and award damages in the amount of… $1”.

My client was gratified that the jury believed him. He wasn’t happy that the verdict was only 1 dollar. And it didn’t matter to him that I did not charge my fee of 1/3 of the recovery… 33 cents.

I recall an attorney once telling me that losses make us better lawyers. I prefer a different method of improvement.

And for pic o’ day, this is one that you might have to think about a little bit:

dell

 

Three Views of the Jury System

     A description of our jury system from three viewpoints:

     President John Adams recognized a juror’s duty as, “It is not only the juror’s right, but his duty… to find the verdict according to his own best understanding, judgment and conscience, though in direct opposition to the direction of the court”.      

     Humorist Dave Barry described our judicial system as, “we operate under a jury system in this country, and as much as we complain about it, we have to admit that we know of no better system, except possibly flipping a coin”.

     With that backdrop, I then read the tweet of a football player who attacked the jury system, after its finding in the Zimmerman trial:

     “All them jurors should go home tonight and kill themselves for letting a grown man get away with killing a kid”. Atlanta Falcons wide receiver, Roddy White,  sent after George Zimmmerman was found not guilty in the death of Trayvon Martin.

     For “Did you Know” I go to one of those mathematical amazements. Take your age; multiply it by 7; then multiply it by 1443. It will equal your age… repeated 3 times. Yep… that’s a puzzler.

     Finally, a pic 0′ day that I will just describe as “having your cake and eating it too”:

wedding cake

Battle of the Trial Experts

     In yesterday’s blog, I wrote about expert testimony in trial.  Last week, Kim Raab and I tried a case in Richmond Circuit Court, where the experts provided different opinion testimony. It was up to the jury to decide the truth.

     Our client’s car was rear-ended, when she was sitting still on Hull Street. The insurance company’s lawyer told the jury that they accepted liability for the cause of the crash… just not the cause of our client’s injuries. So, the case went to the jury on the claim for injuries.

     In these cases, it really comes down to what harms were caused. That includes how long the injuries last. That’s where the experts went different directions.

     My client was treated by an orthopedic doctor, who gave her an injection in her back; but also said that she had a permanent injury. Her chiropractor had tried to treat her conservatively, because her MRI showed a bulging disc at two low-back levels.

     Both the orthopedic doctor and the chiropractor testified that there was really nothing else that they could do for her. She doesn’t feel pain everyday, but the disc bulging can be aggravated by simple activities like sitting or standing for long periods; driving on trips; or trying to do certain exercises or doing too much activity that involves her low back.

     The defense hired a doctor for the sole purpose of coming to court to testify. He did not see or talk to my client and he did not talk to any of the treating doctors. Instead, he did a “record review”. By his own testimony, that placed him in a better position to evaluate the injuries.

     The doctor hired by the defense told the jury that our client had suffered some injury in the car accident, but that all injuries had resolved. He testified that she did not have any permanent injury and certainly did not need any additional medical treatment.

     When I cross-examined this defense doctor, I knew that it would not be smart to attack him on medicine. He was firm in his opinion. The defense had already brought out that he had been hired and paid by them. The defense attorney just tried to make it sound like an independent evaluation.

     I went back to the fact that the doctor had only read the medical records. I hear it often from defense experts, but I still never get their testimony that they are in a better position to give an opinion because they have not seen the client. Something like no emotional tie.

     As in this case, I always then ask the doctor, “Doctor, do you personally have any patients that you have not seen or spoken to, whom you are currently treating?”. Of course, the doctor answered “No” with a smirk. In closing, it again went back to the reality of the double standard of treatment, versus the defense doctor being paid for testimony in trial. It’s one of those moments when you are hoping that the jury is also shining a light on that defense testimony.

light

     When it comes time for the jury to decide its verdict,  they have to decide who is telling the truth. Kim had asked the client during her testimony, to discuss what “permanent” meant in her everyday life. The client discussed issues that included what she could do at work. She also talked about how she has a hard time wearing high heels and now basically only wears flat shoes; or physically pays for it the next day when she wears heels.

Hope

     When I am waiting for the jury to hit the courtroom buzzer to indicate that they have reached a verdict; I am just hoping that they don’t believe the defense doctor.

     I usually don’t talk about the trial result and then I get emails that asked, “So what happened”. The jury came back with a verdict that was more than 10x the settlement offer. That defense doctor was apparently not influential. The jury believed our client.

     For pic o’ day, this is about presentation. Also, this one is for my Mom!

Facebook presentation

Cornwell Verdict Plus A Coffee

     This is a follow-up blog on the Patricia Cornwell trial. Plus, I am throwing in a story about the most expensive drink at Starbucks. The only thing they have in common is… well, I’m not sure there really is anything. But, I guess “Big” could be the one common factor. First, let’s look at the verdict.

     Previously, I wrote a blog on the lawsuit and trial of Patricia Cornwell, where she had sued her financial “gurus” for the mismanagement of her money. (previous blog) Well, after a six week trial the jury has spoken. A 51 Million Dollar Verdict!

     She had sued CPA firm Anchin, Block & Anchin for mismanaging her money on real estate, vehicles and a helicopter. Plus, she said that her tax returns were filed in such a way that triggered audits and caused the FBI to investigate her campaign contributions. As previously discussed, the CPA firm defended the lawsuit by saying that her losses were based on her lavish choices in lifestyle. 

     In the jungle the mighty jungle the lion sleeps tonight. Maybe not the CPA’s  who tried to pass the blame.

     And in connection to a BIG verdict, this coffee story caught my attention.  

starbucks20n-1-web

 

     Beau  Chevassus decided to give himself a special birthday gift… the most expensive Starbucks drink ever. He sauntered into his local Starbucks and ordered Forty-eight shots of espresso, some protein powder, two bananas, a few caramel drizzle Frappuccino chips, some vanilla bean and some soy. Soon, he had the above coffee bill totaling $47.30.

     The real question, “did he drink it”?”. He reports only taking a few sips in the store. Then, he drank about half of it over the course of the next few days.

     See, I couldn’t figure out how to work that in a legal blog. It works if it’s combined with a big verdict. Well, maybe a little!

     Pic o’ day is a bit of hiding:

Hide

Death Certificate Story

     A death certificate is required for insurance proceeds. It may also hold the key to criminal prosecution. It is a document that states the location, date and cause of death.

     Ancestry.com tells the story of “Causes of Death You Won’t Want on Your Death Certificate”.  I have attached the article because it has several stories about death certificates that I can’t cover quickly in the blog. However, when I read the title of the article, I considered the thought that maybe no one really cares what is on their death certificate… but I digress. 

     For the purposes of the article, it tells the stories of some unusual causes of death. In 1880, J. Nash from Colorado reportedly died from sore eyes. I know, maybe that gives meaning to the saying, “you are a sight for sore eyes”.

     Ohio politician and lawyer, Clement Vallandigham, was in court to demonstrate that a murder suspect was not guilty and that the victim could have shot himself. The lawyer grabbed the gun to demonstrate his theory. Unknown to him, the gun was loaded. Hence, his death certificate of June 21, 1871, lets us know that he argued too effectively for his client.  

     Jack Daniel (yes, that Jack Daniel), was a victim of his own frustration and temper. He got angry that he could not open his own safe, causing him to kick it. The kick caused injury to his toe which got infected. As listed on his death certificate, he died from blood infection. I guess death by safe would have been a bit of a reach but the safe is on display in the Jack Daniel’s distillery in Lynchburg.

     Ancestry.com advertises and prides itself on helping people research their family history. Part of that history includes the documents that record the causes of death. The documents may also remind us to keep our temper or wear glasses to avoid eye strain.

     For pic o’ day, I went with something a little different. The document of a Toddler’s rules of possession:

Fault versus Responsibility

Major league baseball pitcher, Bartolo Colon, was just suspended (ESPN article) for 50 games, after testing positive  for a performance-enhancing substance.  Baseball decided a couple of years ago that it was no longer going to turn a blind eye to steroids, human-growth hormone and other drugs.

When it was announced that Colon had tested positive for a banned substance, he or his agent released the following statement on his behalf, ” I apologize to the fans, to my teammates and to the Oakland A’s” (his team)

When I saw this story and the statement, I wondered why he was apologizing. For the last couple of years, there were rumors about him unfairly competing. Now, baseball has confirmed those rumors. Is he sorry that he took banned drugs/substances or is he sorry that he got caught? Was he sorry the day before he got caught.

For every lawsuit that I file, I receive an answer to the suit.  Almost always, the answer is filed by the defense attorney that has been hired by the insurance company. In that answer, they deny everything except that there was an accident. Then, on the day of trial or a couple of days before, I usually am told by the defense that  “they are admitting liability”.

Although they admit liability, they then attack my client about injuries and treatment. Recently, I asked a defendant if he was at fault for the crash. Like clockwork, he said that he accepted responsibility for his actions. I then followed up with, “So you accept responsibility for the injuries that you caused my client?”  He hesitated, looked over at his attorney at counsel table and then blurted out, “oh no, that’s not what I meant”.

Whether it’s the real world, baseball or from a car accident, getting caught doesn’t usaully mean “I’m sorry and I’m responsible”.  I suppose that will never change.

For pic o’ day, this pup just realized that Vet doesn’t mean what he thought they were saying:

The Facekini Jury

 

I know that this is going to be one of those blogs where you say, “Joel, where are you going with this?” I started to blog on shadow juries and then I saw a story and picture on this amazing clothing accessory that is sweeping China.

If you think about it, this really is quite the sun protection. That’s why they call it the “Facekini”. In China, tans are frowned upon; although that seems contrary to this picture. It looks like there is a lot of tanning going on in the background… but I digress.

Somehow, this story distracted me from a discussion of shadow juries,  because it’s kinda like being in the shadows on the beach, isn’t it? OK, maybe not so much. I just wanted to post that picture for the blog. It’s just fascinating to me.

As to shadow juries, the “Virginia Lawyers Weekly’  just reported on a medical negligence case that took place in Pennsylvania. After the jury had been picked, 12 others who had similar characteristics to the 12 jurors already seated, filed into the same courtroom to listen to the same evidence.

The twelve “spectators” listened just like the real jury. They even took breaks at the same time. They did not know who had hired them to sit in the trial. At the end of each day, a jury consultant would discuss what they had observed during trial that day. Based on the feedback, the plaintiff’s lawyer would refocus questioning the next day, and create graphics to better highlight specific evidence.

The lawyer also wanted some input on whether he should be considering settlement offers from the defense. As the trial progressed, he became more convinced of how the real jury was perceiving the evidence. When the verdict was finally returned at the conclusion of the trial, the jury came back with an amount of $78.5 million.

Before that verdict was returned, the shadow jury had also deliberated. They awarded more than the actual jury. The plaintiff’s lawyer had no real explanation for that;  except to conclude that ultimately, the shadow jury knew that they were not truly returning a verdict. As he said, “maybe they felt that they were playing with monopoly money”.

For pic 0′ day, just like my desire to post “Facekini”, I’ve been wanting to post “Velcro Cat”. I never have really understood the whole thing of someone putting on a Velcro suit and jumping into a wall. But Velcro Cat… now that just makes me laugh!

 

 

The Kroger Slip and Fall Video

What happens when the defense attorney stands up and basically tells the Court, “Judge, we can’t find the tape”. We learn what happens in the Georgia case of Walters v Kroger Co. Watergate meets slip-and-fall. (The following case description is based on an article from AAJ’s “Trial” magazine)

Craig Walters was shopping in a Kroger supermarket, when he slipped on a piece of banana. As a result of his fall, he suffered a spinal cord compression that required surgery.  He had multiple rods and screws inserted to stabilize his spine.

His past medical expenses totaled $135,000. He will have continuing issues including permanent disability. He will never again be able to work as a commercial landscaper, where he had a yearly average income of about $50,000.

When Walters sued the store, he claimed that they had failed to take the necessary steps to inspect and remove the fruit from the floor.

During discovery, it was determined that the store had a surveillance video system in operation, where Walters had fallen. So, a discovery request was sent for a copy of the store’s surveillance recording of the fall. The Kroger manager responded that they had not kept the video, because it did not capture the fall. Instead, the store produced a photograph with the claim that this was the only image that they had; a wide view of the general area of the incident.

When Walters’ attorney took the deposition of the store manager, he asked the manager to demonstrate  how the surveillance system operated.  The demonstration showed that the surveillance camera was centered on the spot where Walters had fallen, not on the location of that other image that had previously been produced.

The plaintiff filed a motion, seeking sanctions and claiming that Kroger had deliberately erased footage of the fall. The Court made a determination that the store had deliberately destroyed evidence. The Judge ordered a sanction; the store would not be allowed to present any defenses to being at fault for the fall.

The case proceeded to the jury on damages only. The jury returned a verdict of $2.3 million. Kroger has now filed an appeal, based on the Court’s sanction.

Sometimes, a Judge may just give an instruction on the destruction of evidence and that it should be presumed that the evidence that was destroyed, would have been favorable to the opposing party. In this instance, this Judge brought the hammer down.  It will be determined on appeal if the Judge’s ruling will now stand.

For pic o’ day, here’s another bad idea:

A Gary Homsey Life Lesson

When I showed up for my first day of law school, I walked into the lobby and looked directly to a room to the right. Above it hung a sign that said “Homsey Computer Center”. I soon learned that Gary Homsey was a local personal injury lawyer who had made a significant donation to the law school’s libray. I filed that name away, because the law school would not allow full time first year students, to also work.

The second year rolled around. Time to clerk part time. I called the Homsey law center and tried to apply for a job, but was told that he was not hiring. I did know a 3rd year student who worked for Mr Homsey and he got me in to see one of the associates. While there, I was able to speak with Mr Homsey. He confirmed that they weren’t hiring.

I’ll cut to the chase. I left that day with a job. BUT, I didn’t have an office and I was being paid less than minimum wage. It probably wasn’t really even considered a law job, but I felt that I had my foot in the door, even if I couldn’t afford shoes for the foot.

I was assigned to attorney Randy Robinson. I also did personal errands for Gary Homsey that included picking up dry cleaning and collecting rent from tenants at a rundown shopping center that he owned.

During the first week of my employment, I moved some things out of a file room. The office manager even helped me find a desk to put in there. I didn’t walk into “my office”. I basically jumped in it. I even had a little tape recorder. Of course, I referred to it as my dictation machine.

I can still remember dictating my first letter. It was only about three sentences long. I kept re-reading it. I couldn’t believe that I was being paid to “do law” despite being in a closet/file room without windows, where I hung my jacket on a filing cabinet handle.

During the second semester, I had worked into a position where Mr Homsey was personally giving me work to do… on cases. The case that made the most impact on me involved an exploding tire that caused the client to lose his leg. Those cases are always very difficult to prove because it requires proving a defective tire; and knowledge or failures of the manufacturer.

The day before trial, I picked up our Kentucky-based expert tire witness from the airport. As a side, I worked with him on a case many years later. When I reminded him of the time that I had picked him up in my little red truck, he smiled and remembered. In those days, I had not heard of Sam Walton picking up people in his beat-up truck and traveling to a Walmart store with his dog Roy; but, I suspect it had a little bit of that kind of impact.

The afternoon before trial, I picked up the tires that were evidence in the case, and took them to the courtroom for the trial the next day. I also had sat in on the preparation of the client.

Because of school, I could only be present for portions of the trial. I would bring things back and forth from the office, to the courtroom. I knew that right before trial, Mr Homsey had turned down $400,000 to settle the case. Since I was making minimum wage (I had received a raise since hiring) and was on a budget that included 19 cent pizzas from the grocery store; turning down 400K made me swallow hard.

Well, I’ve set up the story. Now, here’s what happened and the lesson. (As always, I’ve typed too long).

The trial lasted 4 days. I kept calling the office from school. The jury was still out. The last time that I went to the pay phone, the receptionist gave the bad news… defense verdict. I was crushed. Then, I was sad for the client, and then I was worried for Mr. Homsey.

The next day, I got to the office after my two early morning classes but didn’t expect to see Gary in his office. Surprisingly, he was there. So, I made a beeline to his office. There he sat at his desk, working like a normal day.

I know that we talked about the case, but I don’t really remember that. I just couldn’t get over that he was there in the office, after that terrible result. I asked him about being there.

He told me that he was terribly disappointed for the client. There had been multiple reasons why they had not accepted the highest offer. But, Mr Homsey reminded me that you just have to pick yourself up from defeats and keep moving forward. Then, the conversation was over because he was working on the file in front of him; another case soon going to trial.

I’ve heard that same advice from many, but that time it really stuck with me. Recently, I saw that my law school just presented him with an honorary doctorate in humane letters. I’m sure that there has been a lot of “water under that bridge” since that tire case. But, it doesn’t surprise me to hear that they honored him. Gary Homsey was a great example to pick yourself back up and keep moving forward.

For pic o’ day, it’s completely off topic but I never get tired of seeing this funny picture on friendship:

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