Saturday, July 16, 2011

TLC Staffer Cheryl Carpenter in Marie Claire Magazine

Cheryl Carpenter, TLC 2000 and Staff Member, was quoted in the latest edition of Marie Claire magazine, in a story about teenagers who are placed on the sex offender registry. She specializes in this area of law and have been able to remove 6 men from the registry in the past month.

Here is Cheryl's quote:

Even kids under the age of 10 have been registered, says Cheryl Carpenter, a criminal-defense attorney in Michigan. She knows a 9-year-old boy who went on a private juvenile registry for playing doctor with a 6-year-old girl. The boy's name can now be removed from the registry, thanks to new state legislation spurred by activists. A similar case is currently unfolding in Wisconsin courts, where a 6-year-old boy is accused of sexually assaulting a 5-year-old girl; the children reportedly said they were playing doctor.

Carpenter, who has managed to free 11 teenagers (all convicted of sexual offenses involving minors) from the registry, now serves on a professional advisory board for the Coalition for a Useful Registry, a grassroots group launched by two Michigan mothers. She estimates that the group includes 150 mothers of sons on the registry for teenage sex. Some of the boys, she says, can now petition for removal from the registry under the state's new legislation.

We definitely recommend reading
the full article here.

$6.5 million verdict awarded in inmate's slaying

Case tried by Gary Richardson, TLC 2000

Family members of a Lawton private prison inmate who was strangled to death in his cell have been awarded a $6.5 million verdict in a wrongful-death lawsuit.

Lawton Correctional Facility inmate Ronald Sites was strangled in 2005 by cellmate Robert Cooper, said Tulsa attorney Gary Richardson, who represented Sites' son and two daughters in the wrongful death lawsuit. Cooper was later convicted of first-degree manslaughter and sentenced to life in prison.

Finish reading the article here!

Tuesday, July 12, 2011

Never Give Up

Summary written by Maren Chaloupka.

Case tried by Bob Dawson, TLC 2004 and Peter Brown, TLC 2005.

This is a story for anyone who has been on the receiving end of a civil defense strategy to overwhelm and smother and bury any little lawyer, and his or her little client. It is a story for anyone who has worried that the judge has lost sight of what the case is actually about, due to the relentless motion practice and reflexive discovery disputes. This story speaks to anyone who has survived all of that agony and won a just verdict, only to have the trial judge take the verdict away - - the despairing realization that the defense’s strategy won where it unfortunately counts the most.

From our brothers Bob Dawson and Peter Brown, we have a story to give us hope.

Bob and Peter represent a little girl who suffered horrific burns in an apartment fire. In violation of state law for rental properties, there was no smoke detector. When the little girl’s claim against the landlord was presented to the landlord’s insurer, Farmers Insurance, the adjuster assigned to the claim ignored it. Nor did Farmers tell its own insured (the landlord) that the little girl’s attorneys had brought, and were trying to settle, a claim against the landlord.

Three years after Bob filed suit, the landlord entered into a settlement agreement in which he agreed to pay $600,000 of his own funds, and stipulated to entry of judgment against him for $17 million in exchange for a covenant not to execute and an assignment of his bad faith claim against Farmers. Thereafter, Bob filed the bad faith case against Farmers to collect the $17 million for the little girl.

Needless to say, now Bob and Peter finally had Farmers’ attention. The insurer that couldn’t be bothered to communicate with Bob and Peter before they sued the landlord was now awake, alert, and offering its open checkbook to an army of file-churning insurance defense lawyers (and their junior associates, law clerks, interns and other minions). Farmers’ defense unleashed a smothering motion practice that included a breathtaking 1200 pleadings. The trial judge was never without multiple motions to decide, from the time Farmers answered the complaint. Farmers objected to the most basic discovery requests, forcing Bob and Peter to file motions to compel and defend motions for protective orders over and over again.

If the goal of that strategy were to sour the judge on the case by the time of trial, and to cause the judge to resent Bob and Peter for bringing this pain-in-the-ass case in the first place, then the defense succeeded gloriously. Trial lasted five weeks, and the jury returned a verdict in favor of the little girl for the full $17 million. But the judge was happy to grant the defense’s motion for JNOV, finding for the first time - - after 1200 pleadings, dozens of hearings and the five-week trial - - that the statute of limitations had expired two months before Bob and Peter filed suit against Farmers.

I, like many people (and Gerry Spence himself), have been the unfortunate recipient of a JNOV. There is such a feeling of despair - - it’s confirmation of your worst fears that the judge was in collusion with the defense. It feels like the judge and the defense knew all along that they’d never let you win. You wonder if on the golf course or over cigars at some country club, the judge and defense counsel are chortling, “Dance, silly plaintiff’s lawyer! Dance around for us!” You just want to give up this whole draining business of fighting for people because it feels like their defenses are impenetrable.

Bob and Peter surely had that feeling - - especially with the accusation that they had missed the statute of limitations - - but they didn’t quit. They kept telling their client’s story. They told the story of the arrogant insurer to the Washington Court of Appeals. And this week, the Washington Court of Appeals issued an opinion that translates into, “we hear you - - and we get it.” The appellate court reversed the JNOV and reinstated the jury’s verdict for $17 million. And, on the strength of Bob and Peter’s telling of the story, the appellate court produced some great decisional guidance that calls bullshit on common insurance bad faith defenses: “We can give no credence to Farmers’ assertion that it did not have to respond until 2004 because no settlement offer or demand was made or suit filed until then. Farmers’ argument conveniently ignores that in October 2002, when Moratti’s counsel inquired as to whether Farmers would reconsider its position if he sent the demand letter, he was told that Farmers’ decision was final. Relying on Farmers’ stated position, Moratti’s counsel did not undertake the expense of submitting a futile demand letter to Farmers. Nor was he required to do so as the law does not require someone to do a useless act. Since it was Farmers’ own representation that prevented a formal demand letter, it cannot now argue that failure to make the demand bars Moratti’s claim.”

(And, the court noted at the end of the opinion that Farmers will be paying Bob and Peter’s attorneys’ fees for the appeal and at the trial court level as well. Maybe that will cause Farmers to rethink filing 1200 pleadings to which the plaintiff’s counsel has to respond?)

Bob says that the best part of this result was calling the clients and hearing their reaction to this stupendous development. The little girl has, by now, undergone more than 100 surgeries. The family is suffering financially and emotionally. The news to them was so unreal that the little girl’s mother was crying and laughing at the same time. They had never given up hope; and their lawyers never gave up fighting for them. Farmers may appeal this decision to the Washington Supreme Court, so there may be more fighting to come - - but this is a team of lawyers and clients that will not give up.

I can’t finish this beautiful story without one more plug for Grad Course II. Bob and Peter have both attended Grad Course II numerous times. A few years ago, we had a great “discovering the story” session in the Johnson Barn about this case, as Bob and Peter demonstrated how much drama and meaning there is even in a story where the “action” is just an adjuster shuffling files in her cubicle (as opposed to an action-packed truck wreck or a murder). Bob and Peter invited the group to assist them after hours in building further on the case. Their five-week trial bore witness to the fruits of this collaborative and creative effort by the Grad II group. I am so glad that both Bob and Peter will be at Grad II again this year (maybe we can persuade them to lead a breakout session on what they’ve learned about how to wield TLC methods in bad faith cases) - - and with only about two spots still open, maybe readers of this e-mail will be inspired to register as well.

Congratulations and blessings to Bob and Peter and their clients.

Congratulations to...

Leslie Feldman-Rumpler, TLC 2000, named one of Massachusetts 2010 Lawyers of the Year.
Dean Nassar, TLC 2003, named 2011 South Dakota Trial Lawyer of the Year.

Mold-n-Musty, Told-n-Trusty!

Case tried by Michael Moore, TLC July 2010

After 3.5 years this case had grown some mold. Wait, this case is about mold! I was approached by another San Diego attorney 1 week before his trial call to help try a mold case.

A 50 year old gay man and his mother lived in a condo. One day, they discover mushrooms growing the carpet. They discover a leak under the kitchen sink. Property manager is called, who then calls plumber. Plumber arrives next day, opens a hole in the wall exposing mold and a nasty stench. Next morning man has respiratory attack, mother is fine. He freaks out so badly from the respitatory attack, he flees the condo and drives to a local airport - to be in an open area. He doesn’t think about his mother until a couple hours later, then he calls and finds out she is fine. They move out of condo that day.

Man does not go to hospital for about a month. During the next two years, he starts complaining of all kinds of ailments from memory loss, gastrointestinal issues, skin rashes, aching joints, respiratory issues, and many other ailments. Man is one pack a day smoker. Man also saw psychologist who never took history but diagnosed man with PTSD FEATURES, but would not commit to PTSD diagnosis. Total in past medical bills is about $30k plus $8k for psych.

Clients have condo tested a few weeks after exposure. Test results show elevated levels of mold (defense argues that’s because mold had time to grow/spread during that time) and no one should live there until problem is remediated. They left their personal property there when they moved and demand owner clean the property. Owner hires company to clean and move property - well the property is moved but never properly cleaned. So there is claim for loss of property of $38k.

Cased worked up by prominent San Diego firm, who dumps case and clients after plaintiffs’ designated medical expert testifies in video deposition that plaintiffs claimed ailments are NOT the result of mold exposure - this is on video and is shown during opening statement. All defense experts say the same thing. And defense psych found plaintiff to be histrionic and a malingerer.

Our treating doctor said that the rhinitis was related to mold exposure and most of the other stuff is psychosomatic. And plaintiff tested positive on intra-dermal test for mold allergy. All doctors, including plaintiff’s testify Plaintiff (man) is histrionic.

Property managers are sued as well as the owner. But client (man) is also property manager by profession. Trial got continued for 3 months, so we were able to use TLC techniques to discover the story and do a focus group. We discovered mother didn’t get sick because she was on sporanox because of a previous mold exposure at her work. We discovered plaintiffs expert that was testifying against us, had actually been business partners with defendants mold expert. Also discovered many wonderful things about plaintiffs and what great humans they are - this helped me so much. Did reenactments in preping for trial and did one in opening.

Had client coming down to well to do reenactment during his direct, but was hesitant and judge asked is this really going to help you testify and he said, well I could probably do it sitting as well. So judge directed him back to stand. Voir dire: I start off talking about my biggest fear - the plaintiffs’ expert video tape depo. I say some stuff then ask a question. No one says anything. Next I say, I’m really nervous now because none of you are responding. Still no response. Then I ask, “can someone please help me” and BAM they start talking. It was fricking amazing that my call for help was answered. The person who started talking first became our foreperson.

Offer before trial was 8k. Verdict was for $232k - plus we beat plaintiffs’ 998 so we’ll get costs including expert fees. Male client cried during reading of the verdict - he was so happy.

Wore my medicine bag everyday, its a little discolored after this trial, maybe from my sweat! 2 for 2 since graduating from TLC 2010; on cases dumped by the original plaintiff attorneys. TLC has changed my life and helped me find justice for those who had been abandoned.

F Warriors to the Rescue!

By Gloria Danielson, TLC 2008

Late in March of this year a colleague confided he had recently been diagnosed with
a serious illness and required surgery as soon as possible. Then came this: “I have a
case going to trial next month – federal court. I need you to try it.”

A thousand doubts flooded my mind: I’ve never heard of this case; how can I be ready
to try it in a month? I haven’t been in front of a jury in 5 years; every trial since the
Ranch in 2008 has been a bench trial. I’ve never been in federal court; not only do I
have to learn the story and the law, but the rules of federal court as well. I’ve never had
a trucking case; my area is medmal. What if I screw up????

But, the client did not want a continuance…and so the work began.

The previous case work-up was non-TLC method. The difference is like night and
day. No exhibits had been identified; no damages worked up; no demonstratives or
illustrations; no witnesses had been interviewed (no known addresses for 2 of the listed
witnesses). More importantly, no one really knew the client, other than “he’s a nice

Looking through the files, I quickly discovered the defense strategy: my client was a
liar, a cheat and a fraud. In deposition after deposition defense counsel skillfully built
her theme.

I went to my (new) client’s home that weekend and began to work, TLC fashion.

The next week, two TLC grads, Betsy Greene and Dennis Wegner, joined me and some
other local attorneys who are interested in the TLC method and, with Betsy’s expert
direction, we worked on discovering the story. After the client left, the group also helped
me with voir dire, opening and closing. Working with the client with the group really
set the stage for the next several meetings with Steve and his family and friends in his
home. He knew the process and was able to "show me" from there on out. He did an
amazing job revealing himself (a really nice young man) to the jury.
Facts: Steve was helping (as a good deed) his brother (a tow truck operator) recover
a slide off on one of our interstates. A speeding semi lost control and hit - something
- no one knows for sure what the semi hit, but in any event, Steve ended up with two
broken legs. He now walks with a limp - but the severity of the limp was in dispute as
the surveillance video didn’t show much of a limp. The IME (our expert) gave him a
34% PPI, and stuck to it, even after admitting that the limp in his office was "worse" than
on the surveillance video. Medical liens totaled $113,000.00. Here is but one important
fact previous counsel missed: Steve had been ranked 7th in the nation in BMX racing
about 10 years prior to the crash. He had been, as one lay witness put it, “an incredible
athlete.” While he no longer raced, he still enjoyed participating in extreme sports.
Being physically fit was very important to him.
The case was worked up to include future wage loss because of the limp. However,
no physician had given Steve any work restrictions. Further, Steve was fired from his

job four weeks before the wreck. During a deposition of the human resources (HR)
manager, defense counsel built a case of insubordination, poor work performance and
absenteeism. It was upon this foundation the defense economic experts based their
opinions of zero wage loss.

Defense intended to call the HR manager at trial, so I considered calling him in my case
in chief. With a lot of suggestions and advice from the TLC listserv, that’s what I did. At
trial, I established that Steve had been promoted to the top of his pay scale even after
being written up for insubordination, had only been absent 3 ½ days in the two years
he had worked for the company, had never been tardy, never taken a vacation day, and
could always be counted on to work overtime. He was fired at the end of 2008 because
he clocked out to go to the emergency room when his blood sugar had dropped to 31
(extremely low) and a supervisor could not be found. One juror’s question during trial:
since we now know what a hard worker Steve is, how will he be able to adjust to a desk

The judge allowed 30 minutes for voir dire, and actually cut off a juror who was talking.
I brought out the firing and the fact that part of the claim was earnings capacity. I
also brought out my biggest concern: Steve stated under oath (and told the IME) that
he couldn’t mow his grass and there was surveillance video showing him mowing
the grass. Again, the TLC listserv was a huge help. I asked, and received, many
thoughtful suggestions on how to bring this out to the jury. I also inched out from behind
the podium (and the mandatory “stay behind the podium” directive that apparently is
required in federal court) and was fully vulnerable when I brought up the “lie.” After
trial, the jury said that was really the only way I could have brought out this fact – and
that they would have dinged my client if they had heard about the lie from defense.
However, I made a huge mistake during voir dire in that I did not talk to everyone in the
first two rows of the venire. In the lively discussions regarding the lawn mowing lie and
the firing, I simply overlooked the fact that there were three people in the first two rows
that had not said a word.

I inherited numerous other problems. Defense counsel had skillfully built a story, from
selected medical records, that Steve was a drug-seeker. At trial, I brought out that
Steve had been to the emergency room three days in a row (part of the “drug-seeker”
pattern) because he had an infection in the knee joint that required hospitalization
and six weeks of IV antibiotics. The pain he was experiencing was a result of the
undiagnosed knee infection. I then had the doctor explain to the jury how being labeled
a “drug-seeker” – especially when it was not true – could harm Steve further and hinder
future efforts to obtain medical treatment.

In pre-trial depositions defense counsel, again using select medical records, implied that
Steve was not credible because he did not finish all of his antibiotic therapy. At trial, I
established, with other medical records, that Steve had, indeed, completed his course of
IV therapy and that his reports to the IME that he completed the IV therapy were honest.
Right before trial defense counsel took the family physician’s deposition. Again, she
built the story of lie, cheat and fraud. Surprise! Using TLC’s soft cross, the family doc

ended up saying that Steve was “very honest” in his reporting even negative facts, how
important it is for patients to be honest and that it would be “unfair” to imply that Steve
was anything but diligent and concerned in his participation in his medical treatment.

The surgeon flat-out would not schedule a trial deposition - the judge had the marshals
on stand-by to go get him for trial - so I decided to use a depo summary of the
deposition that defense counsel took. Which is something I won't do again if it can be
helped - the jury HATED it. Too long, too boring.

I lived in terror the first three days of trial. Finally, on day four, the day of closing, I
pushed myself out of my way, got in the moment, and really connected. I should have
done this on day one, but...didn't. In closing, defense counsel had no thunder. She
floundered to fill 45 minutes and sat down early. What was there to say? Her whole
case was “lie, cheat, fraud” and we dealt with each issue up front.

I don't know if the client is happy with the result – which was a bit over a million dollars
- because he was led to expect much, much more from the previous attorney. And that
was probably my final mistake. I blackboarded way, way too much - in an attempt to
bring in the amount that was "expected." On the other hand, it was a number (a range,
actually - thanks, Betsy) that I believed in, so maybe it wasn't too much. I don't know.
Damages – how much is enough/too much/not enough? – is one of the areas this horse
needs to work on.

Thanks, F*Warriors!

Result in Rwandan Genocide trial

Summary written by Maren Chaloupka.
Case tried by Kurt Kerns, TLC 99.

A few weeks ago, some of you may have read the New York Times' coverage of a very unusual trial taking place in the federal court of Wichita, Kansas. DOJ had charged Lazare Kobagaya, age 84, with various offenses arising out of the 1994 genocide in Rwanda. The allegation was that Mr. Kobagaya was personally involved with the massacre of Tutsi, including burning a Tutsi village, torturing and murdering Tutsi, and forcing Hutu to brutalize and murder Tutsi on pain of death.
The testimony was floridly graphic. Most of the 50 witnesses were African. For six weeks, the jury heard stories of women being beaten to death, of boys being hacked to death with machetes, and of other brutalizations committed allegedly on Mr. Kobagaya's orders. DOJ had framed the case as an immigration violation, with two charges: lying to immigration officials about his whereabounts between 1993-95, and the far more explosive, charge of lying to immigration officials about he had ever persecuted anyone or committed a crime for which he was not arrested. Proof of the latter charge required DOJ to show that Mr. Kobagaya had committed genocide.
This was the first criminal prosecution in the United States that involved proof of African genocide. DOJ spared no expense, flying in dozens of its witnesses from around the world. It was an end run around war crimes tribunal procedures.
Our brother Kurt Kerns (TLC '99) was the lead defense lawyer. In the last 18 months, Kurt has spent a great deal of time in Africa, traveling through conflict areas that remain very dangerous today in order to see the scenes described by witnesses, prepare for cross-exam of DOJ's witnesses and identify witnesses for the defense. In that work, Kurt discovered and developed the true story of these badly traumatized DOJ witnesses, as he learned that the Rwandan government encouraged and pressured its own political prisoners to implicate others such as Mr. Kobagaya, in cooperation with the American government. These witnesses' will and self-confidence were devastated by the horror of what they had lived through, making them specially vulnerable to pressure from their own corrupt government acting in concert with USDOJ.
Kurt also presented the story of a confusing immigration application presented to an elderly man whose English was shaky, and who completed his application through translation by his son.
This was not a trial in which jurors were falling asleep or dreaming of their grocery lists. The jury was riveted by the sensational and horrific testimony, adjusting to the unusual accents of the witnesses and demonstrating close attention throughout the six weeks of trial. And in the end, the jury's decision showed that Kurt had indeed developed and presented a truly connective story that jurors could understand.
The jury convicted Mr. Kobagaya on the lesser charge of lying to immigration officials about his whereabouts in 1993-1995. But, the jury hung on the greater charge of whether he had lied in stating that he had never persecuted anyone or committed a crime for which he was not convicted. The conviction on the lesser charge is not enough to even get Mr. Kobagaya deported - - meaning that Kurt has saved his client from a certainty of torture and death in Rwanda if the jury had convicted on the greater charge.
For Kurt to obtain this result, he had to not only commit his characteristic strong work ethic and creativity, but had to undertake literal risk of life and limb by his travels to Congo and Rwanda. He had to find the right way to tell the story, through cross-examination, of witnesses who had lived through unbelievable horrors. This case required all of Kurt's natural talents and smarts, and Kurt delivered. What a singular result, from a true Warrior.

Friday, July 1, 2011

CORRECTION: Harris County to pay mother of mentally ill man $3 million

CORRECTION: A previous posting incorrectly listed TLC staffers associated with this case. The case was tried by: Kent Spence, Rafe Foreman, Susan Hutchinson and Grant Lawson.

HOUSTON -- Harris County will pay $3 million to a woman whose schizophrenic son died while he was in the custody of deputies.

Shirley Nagel sued the county after her son died in 2005.

Precinct One deputies were serving a mental health warrant and said Joel Don Casey resisted. Deputies Tasered him 18 times and his hands and feet were bound.

The medical examiner said Casey died from psychotic delirium and heart disease that was impacted during the restraint.

Nagel won her suit in 2009 and the county appealed, but an appeals court upheld the ruling Tuesday.

Read the article here.