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A Trial Report

     Let me tell you the story about my jury trial last week. Usually, I don’t mention trial results because the bar, rightfully so; wants lawyers to always include disclaimers that each case is different and no result means a guarantee for another case. This result shows why each case is different.

     Kim Raab and I showed up to Richmond Circuit Court last week for a trial on a rear-end impact. Admittedly, it was a low impact case. In fact, the defense had blown up a picture of our car that was two-foot by three-foot big. Get the picture? The question was whether we could prove that our client’s upcoming back surgery resulted from this impact.

     The jury was instructed that the defendant was only responsible for the injuries (harms) that she had caused. An aggravation of a preexisting injury meant that the defendant could be responsible for only the aggravation.

     The first day of trial (Thursday), the judge kept going until about 8:45 p.m. The jury was escorted to their cars. I had packed up my things and was headed to my car. (I am about to digress!) When I got there… I had a flat tire. I said to myself, “Self, seriously?”. I looked around and realized that no one was in the garage. Plus, you had to basically drive a special way to get out of the lot. No AAA wrecker would be able to get to me.

     I know, you are wondering if I changed the tire myself. Well, I must be honest… No. My excuse is that it takes some kind of special tool. The reality is…well, you know the reality. So, I drove very slowly to a nearby hotel and got the tire changed. Now, back to the trial story! Isn’t that what they call “part and parcel”?

     After all the evidence was in. After all closings were done and jury instructions were read to the jury. They retired to deliberate and I went to sit down outside the courtroom, and wait.

     After about ninety minutes, I heard the buzzer and thought that we had a jury verdict. Then, the bailiff said that the jury had sent out questions and we were to go to the judge’s chambers. (office). The judge then read from a yellow piece of paper that the jury had sent out. The paper had a question that indicated that a juror had spoken to someone about the case that was not part of the jury. This, against the judge’s specific instructions.

     Since this is becoming an epistle, let me cut to the end. When the judge called the jury out to inquire about the question, he concluded that a juror had potentially not followed his instructions. The judge declared a mistrial. That means… we have to reset it for trial and try it all over again in front of a new jury. Mistrial… it is the second worst word that I could hear. Well, maybe the third. Those words? The word “defense” in front of verdict; and the word “Denied” on a judge’s ruling of importance.

     A trial report with nothing to report. No result. Only part… no parcel.

     Pic o’ day reminds that some things just don’t make sense:


Digital Media Reporting Verdicts

     The Center For Justice and Democracy has published a study on how the media reports on verdicts. It’s a long study/article so I’ll give the real condensed version and see what you think.

     The Center did an 80-day period study of online reporting and stories covering verdicts. In tracking the stories, they found that verdicts that were normaly reported as news, were 192 higher than the national average of all verdicts.

     The finding of the study was that the reporting skewed the public’s perception of civil cases. They believe that it creates the impression that all cases are sensational and that the public is given the false impression that plaintiff’s routinely win big verdicts for frivolous claims.

     The Center’s director, Joanne Doroshow, described it as “Digital news agrregators like Google and social media like Facebook and Twitter function by communicating only the briefest set of words and often just headlines”.  She also stated the the study found that a review of the articles  found coverage that reported six plaintiff’s verdicts for every one defense verdict, creating a false impression of the success of all claims.

     One critic of the study placed blame on plaintiff’s lawyers. Ted Frank of the Manhattan Institute of Policy Research, feels that the coverage is really a product of  “the lawyers behind the big-money verdicts, who have a vested interest in promoting success of their cases”.

     My personal opinion is that the glass can be seen half empty or half full.  First, for anyone to even want to read online news, there has to be some interest. Who wants to read about losing? Who wants to read about boring cases that involve facts that just are not interesting, no matter the outcome?

     Second, if verdicts seem large to the public, then maybe when they sit on the jury, they will lean more to a large verdict because of something read online.  Plus, if lawyers are the ones issuing the press releases and “tooting their own horns” then they shouldn’t be too surprised by the slant of the stories. It does show that online reporting and blogging is getting more attention!

     Now, here’s pic o’ day. Seems everyone is blogging and posting pictures online.


Empty Calories

     He looks her right in the eye. He knows that their relationship may be changed by the upcoming three months. The gate attendant says, “final boarding call to London”. She  wonders if he will meet someone else, while she spends this semester on foreign study. She takes a bangle bracelet off her wrist and puts it on his, “I want this to help you remember me”. He half-smiles and says, ” I don’t need anything to help  remember you”.

     If the above fictional couple did end up getting married, I’m sure that they would tell that story over and over to their kids and grandkids. My wife and I were just reminiscing about names we called/call our grandparents.

 Just saying the word “Pop Pop” brings a smile to my face because of the memories associated with that name. Whenever my “Grammy” would put a pie in the refrigerator, you knew you could have a piece, if there was also a knife sitting under the tin foil too. Aren’t memories a wonderful thing.

     Kodak built an empire on memories. First, just being able to take a photo of something, froze it in time. Then, adding the “moving pictures” created more method to remember the memories. Now, everyone is carrying a cell phone with the capability of capturing, without planning. Then, even emailing it to others.

     There are companies now who focus their business on storing memories. They run commercials of the “what if” type, to scare you.  What would happen if you lost those memories?

     I am redundantly emphasizing the importance of memories because, in my practice, I see clients who suffer head injuries and experience short term and long term memory loss. Then, family members report that the person they knew, no longer exists. As a result, the effects of a brain injury lead to divorce in a majority of couples, where one spouse has suffered a head injury.

     Defense attorneys and insurance companies don’t want to accept responsibility for head injuries. In fact, at a recent Defense seminar on how to defend against a brain injury, the panel emphasized specific defenses and attacks to lessen the financial exposure of a brain injury claim.

     I was interested in these emphasized defenses of that panel. That panel consisted of a doctor, who is regularly hired by the defense and I have seen him repeatedly; There was also a defense attorney who has defended against several claims, brought by my clients who suffer the effects of brain injury. Finally, there was an insurance adjuster who has been assigned to many of my claims, when her employer/insurance company is the carrier providing insurance coverage for the claim.

     In their own words, the panel had specific advice for those defending brain injury claims. Get prior records of the education and work history and show that they were not exceptional students or workers before the crash. Get their medication history to show that any effects of the medicine could actually be cause of the problem and not the crash. Finally, establish that the person is “just depressed” from everyday life, rather than suffering the effects of brain injury.

     An article was published in the Virginia Lawyers Weekly, that set forth these defenses and recommendations of that panel. Since I see these defenses repeatedly, it was no surprise, except to see it in print.

     I wonder why accepting responsibility for harms caused, is so difficult? Why does a person that gets hurt, face attacks and blame? Why would a doctor specialize in helping defense attorneys defend against brain injury claims?

      I guess a defense attorney feels that they are just doing their job. However, even when my client gets a significant settlement or recovery, it never feels like winning. I don’t look at a jury verdict as an award.  

The only satisfaction to the client is what that verdict or settlement can do. It helps to afford treatment that includes testing, therapy, counseling, medication and coping mechanisms.   Those seminar tips, that those attendees were gobbling up, to equip in reducing a recovery, may seem very filling as an argument to a jury. To me, I think that a jury sees them as nothing but empty calories, in that defense blame game.

Year End Negotiations

Louis "Satchmo" Armstrong used to tell the story about a scare that he had in his dressing room, one night. "This big hood crashed into my dressing room in Chicago and instructs me that I will open in such and such a club in New York, the next night. I tell him I got this Chicago engagement and don't plan traveling. I turn my back on him to show that I'm cool and I hear SNAP! CLICK!"

Armstrong continued, "I turn around and he has pulled this big revolver on me and cocked it. It looks like a cannon. I look down at it and it looks like death. Then I say, 'maybe I do open in New York tomorrow.'"  In describing that story in the "Secrets of Power Negotiating", the author links it with a quotation from Al Capone. "You can get much farther with a kind word and a gun than you can with a kind word alone."

Yesterday, my wife Jackey was baking cookies. I became the official taster. I would run down during the football games and grab another. This morning, I weighed myself and had lost some weight over the weekend. So, I negotiated with myself and ate a few more cookies at work. I think I won that negotiation. It also shows that life is about a negotiation. Obviously, it doesn't have to be about violence, but there are pressure points in every negotiation and the year end can have some of that.

Recently, an adjuster remarked that she was taking some time off that day, to take her daughter shopping. I had to bite my tongue because sometimes I wonder if these adjusters have a human side to them. Just as I probably get biased against insurance companies and their methods, I see adjusters who have become so feisty, that they lose sight of the human loss. It seems, to me, as though it's just another file. Especially when they joke about the injuries.

My email "in box" is filled with cases that are in litigation. Some resolve through settlement. Drug Company Schering-Plough agreed to settled a claim that was brought by the State of California, that the drug company deliberately inflated its wholesale price for the drug Albuterol, causing Medicaid to overpay millions in in pharmacy reimbursements.(Bloomberg) . A gun didn't cause the settlement but, I'm sure, possible prosecution may have had leverage.

Teddy Roosevelt said, "Speak softly and carry a big stick". In the world of law, about the only thing that is a threat is a possible verdict that exposes that defendant/insured to personal asset responsibility, that would be above the coverage amount. In South Carolina, if the verdict is well in excess of the offer, the presumption is on the insurance company to prove that they evaluated and negotiated in good faith. In Virginia, there is very little threat of that. In addition, politicians have been reticent to enact any kind of meaningful bad faith laws. They just remind that Virginia was picked 1st in business by Forbes Magazine.

For now, some companies do want to settle claims to close them out in this year end push. Others are seemingly avoiding any attempt at settlement. As one adjuster put it after offering 14K on a 13K medical bill/clear liability case, "it's just what I think it's worth". When I pushed her on why she thought it was only worth one thousand above medical bills on a crash that totaled the vehicles, she had no answer. It was obvious that our negotiations had come to an end. And so it is, year end negotiations. I'm still looking for Teddy Roosevelt's big stick.   

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