Tuesday, July 12, 2011

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!

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