Wednesday, February 29, 2012

Nicholas Rowley's great victory for Natasha!

Eric Fong - TLC '01 Grad. TLC List Serve - February 26, 2012

Yes, it is true, Nick (Nicholas Rowley - TLC '04 Grad)  just got an $800,000 verdict on a soft tissue case.  It may be over $1,000,000 when it is all said and done, as CA has a deal where if you set the case up procedurally, you are entitled to prejudgment interest and costs for the trial and verdict.

The first time Nick even heard of Natasha was when his old law school pal, study buddy and friend, called him up a couple weeks ago and asked him if he would try it.  Nick was at the AAJ deal so the fist time he even looked at the file was the weekend before the trial started.  Offer on the case was $1,400.

Basically, an elderly gentleman made a left turn in front of Natasha; a 24 yo mother of two, couldn’t avoid the crash and slammed into his car at 25 mph.  Nick tried the case in 3 hours; his witnesses were one treating doctor, Natasha’s boyfriend, and Natasha.  Now I am bummed that I didn't get to see the mini opening, voir dire, the opening or Nick's case, but I did get to see him prepare for closing, cross one of the defense experts, then rip and tear a closing argument that I will never forget.

So, let me try to break this down as best I can, as best as I understand it. Before Nick ever looked at a medical record, a deposition or a police report, Nick looked at Natasha.  He went straight to her house and hung out with her.  He shared who he is and he learned who she is.  He let her know he was there to help, and then he did some psychodrama.  He asked her to become the pain. He wondered, and asked about the 9-month delay in treatment.  He learned of her financial stress.  You see she lost her car, dealing with all the fall out of such an event, no way to pay for the medical treatment, she was afraid of bills stacking up.  Basically her families’ needs trumped her own physical needs to get healthy.  Had he not gone deep to learn this stuff, one of the most astonishing moments in the close never would have happened.  Nick was addressing the lack/gaps in treatment, and he says, "we have all lived with the fear of bills pilling up."   Nick has his hand raised while he says this, and half the jury raises their hand with him, but I’ll come back his closing.

Now I wish I could talk to you about his mini opening, VD, opening and his case, as I am supremely curious to see how he weaved all these together with what I saw, but alas I cannot.  My darling kids and I arrived on Saturday, having no idea he was even in the middle of a trial.  By then, all that was left was a defense doc and closing.  Given how relaxed he was, I never could have guessed he was in the middle of trial.  That day we hung out and had a blast.  Joey Lowe swung by (can you imagine a city so filled with talent?  Goddamn it was great to see him)!  My long lost love swung by, we shared tears at our loss, and got closure at the same time.  The next morning, my hero, friend and life changing influence, Joshua Karton swung by and blessed us with a leisurely Sunday morning chat.  Even in laze, but not surprisingly, windows opened to views only seen when you are in his presence.

Latter that night Nick and Pat, his visual presentation guy, started to prepare the closing argument.  Pat thinks in terms of presentation and is a producer of visuals.  All this adds another layer of communication so that more of the juror’s senses are engaged.  I was excited to see these two work together, an interloper back in the shadows, watching as they produce visual aids that coincide with Nicks closing oratory.  I watched as Nick went over his closing argument, then the two created visual concepts, illustrations and snapshot movie headlines of what the argument looks like.  Basically, Nick would go through his closing, and together they would create the visual.  Pat left and Nick continued to work.  I put my girls to bed around 9:30pm.  The next day, Sunday, Pat came over again and the two worked past my bed time.  When I woke up at 5:30 am, Nick was showered, dressed and putting the finishing touches on what he needed done for trial.

We drove about 60 miles to the courthouse in Rancho Cucamonga, and I was amazed at how relaxed he was.  I was determined that I would keep my mouth shut b/c I didn’t want to be a distraction to his task at hand.  I assumed he would be laser like focused on what he was about to undertake; the cross of the orthopedic doc, his closing, etc., but he was as relaxed as a child sitting on the beach with a basket full of goodies.  We discussed the case but once, when I asked him what was going on in his head.  He said he was nervous about crossing the doctor, as he had never met the guy. 

Now I’ve driven hundreds of miles with Nick so I knew what I was getting into, basically a 100+mph sprint to wherever we are going.  I have come to stop fearing for my life, and being more concerned for his driver’s license.  From my perspective, he takes unacceptable risks, not for safety, he is a great driver, but for law enforcement contact.   So once we pulled off the highway, I had to ask how he could just not give a shit, and his answer made perfect sense, something I understood, but I digress.  The point is this, Nick tries cases the same way he drives, to the limits of what most people fathom and perhaps never understand; he flat out pushes the limits.

So we get to court and the defense doc takes the stand.  As he testifies I find myself thinking Nick is in trouble.  Now I had seen nothing of the trial up to this point, so I couldn’t put his testimony into context, but the doc was slick, the doc was persuasive, and the doc was believable.  He kept repeating Natasha was dealt a bad genetic hand.  Some people have bad eyes, some people have bad backs, blah, blah, blah.  By the time the direct was done, it was 11:15, and the doc had a surgery to perform at 1.  There was great discussion about what to do, but Nick assured the judge he and the redirect would be done by noon.  Now I was wondering how this would be possible, but clearly there was no wonder in Nick’s mind.  While doubtful, the judge said, “I’ll leave it to the attorneys,” and Nick started his cross.

As I sat in the gallery, I was pissed off at the doc, b/c it was the same old shit we see time after time.  I was angry, for the life of me I don’t know how these guys can live with themselves.  When I cross such a doc, I usually start off slow, and work myself up to indignation once I think the jury is with me.  What surprised me was the emotion and incredulity Nick launched into from the gate, you could hear it in his voice.  The first thing he did was to skewer the doc on how he has testifies for this “defense lawyer,” and her firm 10 times in the past year alone.  He skewered the doc about how over the past 20 years he has testified, 99% of the time for the defense, and this “defense lawyer.”

Nick then asked him to describe Natasha, “what does she look like?”  He couldn’t answer.  Nick pressed him, “Is she skinny, is she over weight, do you even know?”   The doc said she is “chubby.” She is as skinny as a rail.  He went on down a line of questioning that leads to only one inference; he is a hired gun.  From there, Nick controlled him with anatomical facts that tell the story of how serious a “soft tissue” injury can be.  The doc could only agree to every question Nick asked.  When he tried to disagree, Nick yanked him back into line by establishing the doc was incorrect.

Next, and last of all Nick established that the defense lawyer didn’t give him all the records.  For whatever reason, the defense lawyer did not give the doc the first doctor visit right after the crash. In this record, there are complaints of left sided numbness.  Obviously, this is a serious complaint, for which the doc’s whole opinion was based on a lack of such complaints.  You see the MRI showed signs of degeneration at L4/5, and his whole deal is that this is natural and if she were as hurt as she says she is, you would have complaints of radiating pain or numbness.

Nick framed this as the defense lawyer playing games and not providing the experts everything they need to form an opinion.  To be quite frank, the defense lawyer was in way over her head. She did not have a command of the medical records, she didn’t have a command of the medicine, and she made it worse by making stuff up.  She went into this trial the way most defense lawyers do, unprepared, never expecting it to get before a jury, and if it does, she will win b/c all she has to do is show up.

In any event, Nick got the doc to admit that he had no reason to think Natasha is dishonest.  He didn’t deny that she was hurt, only that it was preexisting, she was dealt a bad hand.  But Nick got him to admit that he believed her, and if she said she was hurt, he would believe her.  He got the doc to say this b/c by the end of the cross, the doc had been corrected and exposed so many times by Nick, by the end of the cross, the doc was just agreeing with whatever Nick asked.  In all this time, I never saw Nick prepare for this cross, he didn’t hold a piece of paper as he did it, it was all from his head.  The structure and sequencing of it was perfect; short, concise and to the point, maybe all of 20 minutes.

On redirect the defense lawyers main point was that Natasha was chubby because she had just given birth.  This whole chubby and being pregnant thing was an extremely offensive aspect of the defense that no doubt hurt their case.  The doctor openly joked with the judge about how his wife is 115 pounds and she thinks she is chubby, but he would never say that about her.  In closing, the defense argued that the back pain was from being pregnant, a fatal argument that Nick exposed on rebuttal.

So we go to lunch and Nick looks exhausted.  In between entertaining my family and me, he is scurrying to get up to speed on this case, other things are going on at his office that required his attention; I know he didn’t sleep a lot.  We ate some food, we chatted a little, I gave him some thoughts about what I saw, and he closed his eyes for a few minutes.

When he gets up in front of the jury, the first thing he says is something like this; “You know over lunch I was exhausted, I closed my eyes for a little, but I’m getting my energy back just by looking at you, b/c you have the power to decide what a human life is worth.  And like Bob Dylan says, you don’t need a weatherman to know which way the wind blows.”

He then launches into the defense doctors to expose the defense tactics.  That if someone gets hurt in this community, they are paid to come into court to say that the person isn’t hurt.  He asked them, “Did you expect the defense experts to say anything else?”  “Do you think if someone is hurt, they’d show up and testify for the defense?  You bet they will!  Defense experts have this power to come into court to say someone is not hurt.  Don’t give them that power, don’t validate that tactic, please don’t give them that power.”  He described them and their role for the defense as “damage control” witnesses that are used to chisel down everything.

Nick then explained about how in the 70 and 80’s, university trained experts came into court and testified that cigarettes don’t cause cancer, that arsenic in water isn’t bad, and he asked “can you leave room for the possibility that experts are paid to say certain things?”  Then he compared and contrasted their testimony with the treating doc’s testimony.

He then throws their theme back at them saying, “The bad hand Natasha was dealt was when Johnny crashed into her.  The bad hand Natasha was dealt was running into this defense lawyer, and this tactic that would rather pay doctors to come into court to testify, than be responsible for what they did.”

Nick then systematically went over the law.  This is something that I have learned is crucial.  You see in civil cases, jurors don’t necessarily like the law, and if you want them to follow it, you have to make sure you educate them on it.  It isn’t like a criminal case where jurors love the Constitution and support those ideologies.  Here you have great suspicion about a civil system gone a muck over frivolous lawsuits.  Nick spent a lot of time doing this.  He pointed out that the law requires them to award money for every loss, and he gave examples galore for each loss, i.e. a mother that hurts when she picks up her baby, avoids the zoo because walking causes pain etc.

He then says, “The time for a discount, the time for settlement has past.  The time now is 100%.  If I represent someone at trial, ….. all the things we needed to do for trial, to get here, the time is for 100%.”

In explaining the law and no bias or prejudice or sympathy, he said things like “If you say I’m against big verdicts, that is prejudice.”  “

"You can’t be afraid if others say ‘were you a part of that big verdict in Rancho Cucamonga?'  You cannot be worried about what others will think.”

“If there is someone back there that wants to let them off on the cheap for a few hundred thousand dollars, ask them 'is it more probable than not, ask them who is more believable, the treating doc or the hired expert who isn’t responsible to anyone?'”

From here, Nick went into why he is asking for $5,000,000.  He basically asked for $1,250,000 for past pain and suffering.  $500k-$1,250,000 for future medical, and $2,750,000-$3750,000 for future non-economic damages.  He didn’t really break it down, he didn’t really explain it, what he spent a lot of time on is that there a lot of ways to look at $5mil.  I asked him about the brackets as opposed to a fixed number, he said it depends on the case, I'm sorry I didn't ask for an elaboration.

He frames this as ET$V or equal trade dollar value.  His explanation of this is as follows.  "If I break this computer, I have to fix or replace it.  The human body is the same thing, it isn’t 30% of what the computer is worth, it is 100%.  Think of it this way, if a man in a black limousine, wearing a black suit came up to Natasha just before this crash, and he opens suit cases full of money, and he tells Natasha, I’m going to give you all this money, $5million, but I want equal trade dollar value in return, and this is what it is …….  As you get older you back hurts worse and worse …..  all she went through …… fill in the blank ….. will you take the money?  Of course she wouldn’t.  So $5mil is what I think she is worth, you can give more, you can give less.”

He talked about her life expectancy and went back 53 years and showed a stamp was 3 cents, gas was a quarter, Elvis was signing, the price of a car etc.  He talked about how if the defense doc can make $5,000,000 in three years, which what the first doc made by testifying for the defense, then shouldn’t Natasha get that for a lifetime of pain.  So, he explained, in 53 years from now do you really think $5million will be a lot?

Now keep in mind, all of the above was in conjunction with a visual presentation that was impressive in its own right.  I’m not able to explain it, so all I can say is that it definitely is a huge part of what he did.

The defense lawyer now takes the podium and reads her closing, I’m not joking.  It was almost as if she took a sedative over lunch, her body language was that of a defeated person.  But as she read, I thought to myself, she is actually making points.  She talked of the gaps in treatment, she talked about how Natasha was pregnant and only then did she seek treatment.  She talked about how this wasn’t a big impact.  She talked about how $5mil is outrageous.  She did the math and suggested something like $20,000.  She talked about how the lawyers sent Natasha for treatment.  I remember thinking, “this is why our job is so hard.  The defense lawyer can suck, but still prey on assumptions.  This is why plaintiffs lawyers are so much better, they have to be to win a case.”

So she gets done and Nick gets up.  Again, Nick surprised me because I would have unloaded at some point in the rebuttal, I would have blown a gasket.  But Nick never did, in fact it was less anger/emotion than when he crossed the doc.  Nick calmly, says, “what this defense lawyer did, ever so nicely, is to call Natasha a liar.  Ever so nicely the defense lawyer says all this pain, if it is there, is from being pregnant.  She just made this up.  There wasn’t’ a single dr that testified to this.  There isn’t a shred of evidence that this is the case, so please don’t validate what that defense lawyer did.  He went on, “what makes me sad is having to sugar coat what they are doing to Natasha.”  His rebuttal was very short, there was no visual component to it and the last thing he said was “Please, deliver justice!”

Once his last words were spoken we had to rocket out of there b/c of a teaching engagement for CAALA in downtown Los Angeles.  This in and of itself was an almost surreal experience. Basically, within 30 minutes of working with these lawyers, two of them were so moved, they shed tears.  He brought that room to life much the way he did the courtroom, and at the end, none of the students wanted to leave.

So what are my observations?  First off, and above all else, I leave with a profound sense of appreciation for how hard Nick works, a work ethic that you rarely see.  Honestly, if you want to know how he does it, he works his ass off. Now it isn't always in the traditional mode we think off, but his mind is always churning, he is always putting the pen to the paper with thoughts, and he works his cases up like you would not believe.  Everyone always wants to know how successful lawyers do it?  From best I can tell, they all put in the time to prepare, contemplate and strategize.  Now this is not to say that we can all do what Nick does, if we just work at it.  I don't think we all can, but I do know Nick wouldn't be able to do what he does if he wasn't so driven.

Nick, while only 34, he has tried over 70 cases to verdict.  For those 70 cases, I bet there are some 100-200 other cases that he worked up to trial, but settled at the last minute.  It is in this perpetual state of trial mode that Nick lives.  This case comes off the heels of 2 other trials in just the last month or so.  I'm pretty sure the total verdicts of these 3 trials exceed $9,000,000. Between now and May he is slated to try another 3 cases.   So it is that he is constantly immersed in thoughts of how he can do it better.  He tries some things, abandons others.  He constantly evolves his approach.  He continually studies other lawyers and consultants; he owns all their books and uses their wisdom unabashedly, all the while giving credit where credit is due.  It is obvious his work is greatly influenced by his hero, Gerry Spence, as well as Friedman and Ball.

It is through this experience that Nick can pick up a case such as Natasha's and try it in a moments notice.  It is because he has done it so many times that he can break it down, organize it, and throw it together in a matter of hours ~ such that it is like a professionally produced presentation (actually it is, with his partner in crime Pat).  If you think I'm exaggerating, you need to see how he uses technology and shows his concepts to the jury.

Nick can do this because he understands the medicine.  I've said this before, and I'll say it again, Nick understands the medicine as well as the experts.  Nick has a scary sharp mind, and he uses it to memorize the lingo, the anatomy, the tests, the medical devices, the “you name it” when it comes to medicine. How is it that he knows the medicine and science behind it?  He is curious, he consults with experts, and he reads, studies and memorizes the medical literature.  With this knowledge, his trial ability and experience, it really isn’t a fair match.  Just watch him cross an expert.  He leads them down the path and then lets them jump off the cliff.

Nick has always told me he likes to entertain jurors, now I know what he means. There is never a dull moment when Nick is talking to a witness or the jury.  One of the great moments for me is when Nick is talking to the jury and addressing the defense argument that the lawyers are calling the shots, setting up medical appointments, yackity yack.  Nick tells the jury, the only reason why Natasha has a lawyer is because they wouldn’t even admit that they caused the crash.  Defense objects, and right on cue Nick looks at the jury and says firmly, “it is true!”  Keep in mind, in this case there were only 3 hours of testimony, and 3 hours of Rowley talking to the jury.

So what fuels his drive?  I’m not sure, but I have asked this question to three of the greatest lawyers, not just of our time, but perhaps of all time, and they all gave me a different answer as to what motivates them; one said "anger," another said "insanity," and another said "passion."  If I had to guess, Nick has two, if not three of these bases covered in spades.

Monday, February 27, 2012

The offer was $15,000 and the verdict was $50,000.

Betsy Greene – 05’ TLC Grad – TLC Alumni List Serve – January 30, 2012:

I have Ron’s fire lit.  Please throw another log on the fire for Deb Walcott.  We will go to jury tomorrow. 

I have to give a shout out to my local group.  We had our first regular group meeting in Indianapolis Friday.  We had 6 TLC grads in attendance.   Gwen Truesdell, our newest Region 7 representative, joined us from Ohio.  It was so wonderful and I wish I could give you more details but I am in trial mode.  More details tomorrow.

I want to share what TLC has done for Debra Walcott. This was my law partner’s case.  Several months ago, we convened a group to work on the case.  We discovered the story by doing dramas.  We didn’t decide until a month ago that I would try the case with my partner, Fred. (Thanks Rafe)

I did a classic TLC Jack & Jill cross of the defense doctor.  We will see tomorrow if the jury gives me permission before I killed him.  He HATED the storybook cross. (Thanks Maren).

I worked on voir dire with the Indianapolis group.  What a gift!  I was able to try many different ways to “show them mine”.  (Some work on the horse snuck in there, too.) Fred and I spent the day at our client’s house preparing for direct.  I reversed roles with each juror before the trial.  (Thank you, Jude).

I felt great talking to the jury. Opening was like telling a story to friends.  Deb was wonderful on direct. I have already prepared my closing.  It actually prepared itself.  I knew Deb’s story inside and out. Deb doesn’t want a million dollars.  She will be ecstatic if, at the end of the day, her bills are paid.  She is a great person and went through three and half years of pain before a shoulder surgery finally gave her relief.  If this jury want to deny her, there is evidence that they could hang their hats on.  Because of TLC, Deb knows that we care and that we stood up and fought for her.  Phil posted something Joey wrote a few weeks ago and it resonated with me.  To paraphrase, when we take the time to know our clients and we believe in the fight, it isn’t what we say- it oozes out of us.  I have to believe that it counts.

We’ll find out tomorrow.

I love being a Warrior.  Betsy

Update - February 1, 2012:

We won.

The offer was $15,000 and the verdict was $50,000.  It was a tough case (causation, intervening injuries, soft tissue, little visible car damage) and we would not have won had we not done the work necessary to believe in Deb. My TLC group was a big part of this. I should feel better about this result.  We will be able to negotiate Deb's bills. She is much better off for fighting.  In talking with the jury (and focus group), it is discouraging to hear the deep rooted skepticism in these kind of cases.  Still, with all of the issues, I feel it wasn't fair and I know -because we talked to the jury-they brought a lot of stuff to deliberations that they shouldn't have (how much was she offered? Is she trying to get more?).  The people who were on our side did not stand up.  Somehow, I need to do this better.

Every minute I spent working on this case was well spent.  The method absolutely works. Since I have used the TLC methods, I have had consistently better results at trial. TLC work is essential.  Usually, I am trying the muddy cases and settling the good ones.  These are the cases that must be won to keep the insurance companies honest.  I will keep striving to fight better.

I neglected to mention in my previous e-mail that Cheryl Caenter shared Nelson Tyrone's focus group information with me.  She shared her adaptations as well.  It was great stuff. I wanted to try something completely new and different so I did. It was inexpensive, revealing, and forced me to break the case down to its essential elements.  Thanks Cheryl and Nelson.

Thanks to all of you for the fires.  It really means a lot.   

Love, Betsy

Monday, February 20, 2012

Persistence, Loyalty and Commitment to a Client

Bernie Cantorna - TLC 94 Grad.  Disclaimer: One addition to the story is the insurance company pulled the defense six months prior to trial because the defendant would not consent to settle. The doctor represented himself and Eileen had to face her accuser directly in court.  The congratulations go to her, not me.  

Maren Chaloupka - TLC '99 Grad, TLC Alumni List Serve - February 16, 2012

I am in a phase of life where it feels kind of uncomfortable to praise people for obtaining sizeable money verdicts.  I worry about contributing to any sense that a Warrior's worth to our community is measured by how much money he or she makes (whether by verdicts or by settlements).  I worry that the verdicts can be reported in a way that bolsters the lawyer's ego by the size of the verdict.  And yet I don't have any hesitation in reporting the verdict that a State College, Pennsylvania jury today returned in favor of Bernie Cantorna's client Eileen.

Let me explain.

Bernie is not one of our community's "big money" guys.  He has a general litigation practice that includes everything from personal injury to criminal defense to domestic relations work.  What has always impressed me about Bernie is his focus on service - - really listening to the client and really trying to provide what the client wants and needs, whether it is a modification to a custody agreement or compensation for a wrongful death.  His decision to maintain a service-centered practice has led Bernie into some interesting scenarios that can be more emotionally rewarding than they are financially rewarding.  (The Grad II 2011 class learned of Bernie's encounter with the Amish community, in which he settled a case for the wrongful death of a baby with a coterie of Old Order Amish, no insurers in sight, in a manner that brought healing to his client while in an amount adequate to show respect for her loss.)

In 2008, a woman named Eileen told Bernie a horrific story of emotional and physical torture perpetrated by her psychologist, Dr. Julian Metter.  She had come to Dr. Metter for counseling, as a patient with a complicated history and some serious psychologic diagnoses.  Rather than treat her, Dr. Metter used her as a guinea pig for an ongoing study (performed only by himself, not affiliated with any university or college) that involved gassing the patient with carbon dioxide until she was in an altered state of consciousness, and then implanting false "memories" of abuse in her mind that would stay with her when she returned to normal consciousness. 

Eileen consented to the CO2 treatments (a fact the defense liked), even as her autonomic reaction was to struggle and fight physically against Dr. Metter while he held her down and gassed her.  Dr. Metter videotaped the treatments - - hours and hours and hours of video footage that would give any viewer a seriously crawly, disgusted feeling.  She returned to Dr. Metter for years, while the "memories" Dr. Metter "drew out" from her (by implanting them in her mind) grew increasingly bizarre and fantasiacal.  Dr. Metter convinced Eileen that she had been sexually assaulted in a satanic cult that murdered babies.  He convinced her that her family of origin had abused and tortured her (which was false), so that she would sever her relationship with her parents and siblings.  Dr. Metter enlisted Eileen's husband in these "treatments," allowing him to run the video camera while Dr. Metter held Eileen down as she struggled to escape the gas.

And yet, she returned ... again and again, for years, until she finally broke free, and met Bernie.  By that time, Eileen was tremendously damaged.  To say she had trust issues is akin to saying that Cordova, Alaska had snow issues this winter.  She scarcely trusted Bernie enough to let him try to help her.

Thus began 3 1/2 years of extremely careful, extremely sensitive work by Bernie.  There was a contrib defense, which was ugly and had to be dealt with.  There was a damages defense - - i.e., "she was already effed up to begin with, so how can you say she's any worse?"  Even hearing of these defenses was devastating to Eileen, who blamed herself to begin with.

Eileen felt utterly, grindingly worthless in a way that very few of us can ever understand.  She didn't think this case had any hope of a good outcome.  She was terrified of ever seeing Dr. Metter again, much less spending a week in the same courtroom with him.  She was ashamed that she hadn't broken away from Dr. Metter earlier.  She didn't trust that Bernie could get her through this.

And Dr. Metter knew this, and took advantage of the broken creature he had created throughout the litigation.  The defense filed motions that were personal attacks on Eileen, including a counterclaim for defamation.  Each report of a new motion by Bernie was a knife in Eileen's gut.  She wanted to give up again and again, out of fear and shame and humiliation and the sense that a jury would just find that she was worthless anyway.

Eileen had many days when she would have given up.  Her fragility and emotionality made settlement negotiations impracticable (as did Dr. Metter's insanity).  Many times over 3 1/2 years, Bernie had to assure Eileen that she deserved to tell her story; and that her history did not make her such "damaged goods" that she was worthless.  He had to assure Eileen that he would protect her from Dr. Metter.

The case finally came to trial this week.  Bernie tried it solo.  For most of the trial, he didn't even have Eileen at his side - - he obtained an order from the court excusing Eileen except when she testified, so that she would not have to be subjected to and intimidated by Dr. Metter's presence.  Bernie kept Eileen together through her direct examination, gave her the confidence to survive cross-examination and, on the days when she didn't come to trial, he talked her off of the emotional ledge and encouraged her to stick it out to the end ... which was today.

I am not as good of a person as Bernie is.  I tend to cringe when a prospective client says that he wants to go to trial "on principle."  Usually "on principle" means that I put a load of time and money into a loser case to satisfy some personality disorder on the client's part.

But Eileen was not the one who wanted to try this case on principle.  It was Bernie - - who saw how completely Dr. Metter had destroyed a fragile woman who had come to him for help.  It was Bernie who saw a principle worth fighting for, in exposing Dr. Metter for the monster that he is.  It was Bernie who saw a principle worth fighting for, to show his client Eileen that she did have worth as a human being, that her life was not disposable and that she was not just a guinea pig for a mad scientist to torture.

Bernie fought for those principles and, today, had the incomparable privilege of telling Eileen that the jury affirmed that she did have worth ... $16.5 million of worth.

Who knows if this verdict will be collectable - - Dr. Metter had insurance, but not $16.5 million worth, and he was so irascible that his insurer may refuse to pay even what coverage he had.

But a big payday wasn't the reason Bernie tried this case.  Bernie isn't a money-motivated guy (he drives a minivan).  Nor is Bernie an ego-motivated guy - - he knows who he is, regardless of what one jury or another may say in one trial or another.

What Bernie is, is service-motivated.  He was motivated to serve this despairing, damaged client by restoring her ability to trust; by showing her that she mattered; and by giving her a jury's affirmation that she deserved healing and peace.

That's what the verdict means.  Not a fancy car or a Rolex, and not ego-stroking, but evidence of Bernie's persistence, loyalty and commitment to a client who thought she didn't deserve it. 

Saturday, February 18, 2012

Non-verbal communication during Voir Dire

Phil Stackhouse. July '10 Grad. TLC Alumni List Server. January 26, 2012

Belief in your client?  Why?

Back in November 2011, Maren Chaloupka forwarded an email from Joey Low who was describing a overwhelming victory by Johnny Zelbst in a civil case.  Joey wrote a paragraph that I found very thought provoking - especially as it is applied to criminal law.  He wrote:

“That until I get past my hope or my wish about my case, and well into fighting and defending my BELIEF in my client’s cause, (defending it to the death), then the jury will not begin to defend it either.  This is what is possible when we are so committed to our cause that the non verbal communication, that can only come from our commitment to our beliefs, is what does the majority of the persuading.  Not the mouth moving, not the words formed, but the emotional connection to the client, to the cause, to the jury and to ourselves that oozes out of our pores and onto the floor.”

I struggled with this during a trial last week. That’s a tough position to be in during a criminal trial and when your client must testify to have a chance for success. You have to find something to believe in and it must fit with what you are trying to communicate to the jury: I think.

CLIENT is a 50 year old woman in the Army who married HUSBAND in 1985. She lived with HUSBAND as husband and wife until about 1989.  After that, they met several times, there was some financial support and career guidance, and there were a few visits to CLIENT’s family together, but that's about it. CLIENT claims she has been estranged (my word not hers) since around 1990. An investigation began in 2010 when her marital status came into question due to a relationship she was in with another soldier.  During the investigation, divorce paperwork was discovered in California that showed CLIENT waived her appearance by signature and HUSBAND effected a divorce as of 1991. CLIENT was charged with larceny of housing funds to the tune of about $25,000 given to her over the last 5 years.  This was as far back as the prosecutor could go given the statute of limitations. Of course the amount is much greater if you don't believe CLIENT: around $80,000.

"Ex" husband made a statement to investigators saying CLIENT knew they were divorced because HUSBAND told CLIENT; CLIENT signed the court paperwork; and, HUSBAND got remarried and divorced since then and CLIENT AND HUSBAND discussed it. HUSBAND then did not comply with subpoena he was issued for trial and the US Marshal Service couldn't find him - so their communications didn't come into evidence.

The case was prosecuted, for the most part, on paper.  The prosecutors introduced pay records showing the housing payments were made; the divorce decree to prove the divorce; business records with CLIENT’s signature so the jury could compare; and, they introduced other circumstantial evidence, e.g. tax records showing single filing status and head of household status to prove knowledge.

I had a difficult time wrapping my arms around the fact that CLIENT did not know she was divorced - not because it doesn't fit within the mold of what society recognizes as a marriage. I mean a marriage and a family could only be as follows: Husband, Wife, 2 1/2 kids and 1 dog & 1 cat right?  The difficulty I had was that CLIENT was very very smart and savvy.  I just had a hard time believing she would suffer some fool for 20 years, except love makes you do crazy things. 

CLIENT testified that her parents were married for over 50 years and that she believes that once you get married, you stay married.  While she dated over the last 20 years - CLIENT never took anyone back to meet her parents, because she felt that they would be mad that she was "cheating" on her husband.  CLIENT never “re”married, tried to “re”marry, or ever talked to a "boyfriend" about getting “re”married. CLIENT had no financial requirements that would lead her to "need" the extra few hundreds a month she received. However, how do you not live with your wife or husband for twenty years; not see them sometimes for years at a stretch; only have sporadic phone calls; and, NOT know something is up. 

In a way, I let all of that get in my way of believing my matter how much I care for her and love her...which I do...but I let it get in my way however slightly.  I think it's like being slightly pregnant.

Pretrial negotiations were limited. Prosecutors wanted at least 1 year of jail and Dishonorable Discharge equivalent, which would result in loss of retirement pay amounting to several hundred thousand dollars, plus she would have to admit to larceny.

Voir Dire - we were not allowed to get the members in a discussion with one another, but did get to do some Q&A in group.  We elicited agreement and disagreements and had them explain why. We got an objection toward the end - that my type of Questions were better saved for individual voir dire. My response to judge was that I felt the juror would like to have his answer heard by the court. The juror’s head nodded and judge allowed him to answer. Didn't get to talk to the jury to see if that was appreciated or not. I think it was.

Opening for me felt lame. We didn't know if the US Marshals were going to arrest the "ex" - because the prosectors were telling the judge they were "hot on his trail."  Since we weren't sure what would happen, I didn't want to over commit - I think not "committing" was a mistake.  I think I could have don't a much more compelling 1st person opening from my clients perspective and done it emotionally. We weren't 100% committed to client testifying, but in my gut - I knew she was going to testify and, in fact, had to testify in order to have any chance for success.  Essentially, I second guessed my gut.  A mistake.

Because the governments case was paper - we didn't have much cross examination for the government witnesses.  Essentially we elicited that there was a lot of speculation, they sought to include vs. exclude CLIENT of misconduct, and there was animosity between her co-workers and client.  Quite a bit of the government's case was the submission of records under self authenticating seal/attestation.

Our evidence focused on good character, character for truthfulness, testimony of witnesses who testified CLIENT has always held herself out to be a married woman. CLIENT testified for about 2 1/2 hours.

The jury convicted.

NOW BACK TO THE belief in your case.  In my soul I did not believe she deserved to go to jail  She was a good person, a force in her community, and had served in the Army for a long, long time.

The sentencing argument became passionate in a different way than the lame openings and the meticulous closing where we cut the governments case slice by slice. 

At the college - I believe Joshua Karton posts a quote in his magnificent production and stage setting - that says "if you are arguing reasonable doubt, you're losing" or something like that.  I’ve heard Gerry say the same thing.  I felt like my closing was how jacked up the governments case was, where they failed to prove anything in the face of the case we presented.  The betrayal that her "ex" committed upon her and that prosecuting her was a mistake - she should have just been required to pay back the money, not prosecuted.

At sentencing - it was much more why the appropriate sentence of repayment of the money through a fine was the right thing to do --- not why the government was fucked up --- but why we are right.  It was a much stronger position from which to argue.

The self analysis continues ...  but at the end of the day, while they did convict CLIENT --- she was able to go home with her family and friends, i.e. no jail time; she was able to stay in the Army, which means she will be able to retire with honor and a sizable retirement check --- and most importantly...she hugged us on the way out.


Friday, February 17, 2012

Acquittal in Bremer County

James P. Moriarty - TLC 97' Grad, Rainbow Warrior. TLC Alumni List Server - January 24, 2012. 


Several people have asked for details on the acquittal I got on January 13 in Bremer County, IA

My client Mindy had bought a house that had been built on spec from a builder/contractor she had known for a long time, but unfortunately had no idea of his shoddy work history.  She had wanted a house with a floor plan that was more convenient for her daughter who had been seriously injured in a lawn mower accident some time back and was having a lot of trouble navigating the house they were in due to the stairs. Because they had a house, they weren’t able to get a standard mortgage, so they went for a real estate purchase contract, which would not, of Course, build equity or pass title.  The house had numerous serious defects which posed health hazards to the family, and the builder would not Repair them, and accordingly she had withheld and escrowed the monthly contract payments.   She had purchased the appliances on the house separately from the real estate contract.  After about a year of frustration and being given the run around from the builder, she gave up and let the house go, with about $50,000.00 into it (down payment and monthly payments), moving back to her prior house and taking the appliances with her. When it became apparent to the builder that he was going to be sued civilly for the defects and fraud in the house, he went to the prosecutor and said that she’s stolen the appliances.  My position was that this was completely false and he was only seeking to pre-empt Mindy from suing him civilly.

She was arrested, and she was on parole, but had really gotten her act together.  The stress of the situation was tearing her family apart, but fortunately that’s getting much better. 

I told the jury up front about her history, as it was going to come in under impeachment anyway.  I also set that this was a case of theft indeed, but it was not theft by Mindy, but from Mindy.  Pretty good panel, stressed importance of home ownership and community that it built.

The prosecutor tried to completely keep any information regarding why Mindy had done anything that she had done as irrelevant, objecting on that again and again and getting sustained, but I got to the point where he would ask a question, get a harmful answer, and on quick re-direct ask a specific question of why and he’d object, and after this kept happening again and again, the jury got to wondering what he was trying to hide, and why.

He’d offered to reduce the D Felony to an Aggravated Misdemeanor and agree to suspended sentence, but Mindy refused.  I told him months ago he should dismiss this bogus criminal charge and let a civil action sort it out.  I also told him that he did not want to try this case against me on these facts, and that the jury would not like the builder when I was through with him.

Crossing the builder was fun.  He tried to show himself as a great guy and community leader on direct, and I soft crossed him to show what a vulture he was.   The contracts were terrible, and I got the CIVIL instructions regarding basic contract interpretation rules – everyone remembers them, ambiguous contracts are construed against the drafter – and this really annoyed the prosecutor. 

They were out for two hours, came back NG.  When I turned and put my hand across the aisle, as I do with every verdict I’ve heard over the last thirty years, win or lose, there was no one standing there.  I turned to see his back going out the back door.

Anyway, now I have to move to have the appliances returned.  Wish me luck.  The good thoughts and support of all of you was everything to us.


James P. Moriarty. Proud Rainbow Warrior from the the Class of 1997.

TLC techniques help knocked it out of the park!

Carlin J. Phillips. TLC Alumni List Serve - February 1, 2012:

     Have to report on my fellow Massachusetts TLCRs victory last week. Chris and I practice in neighboring towns and confront some real tough juries as our offices are near a dying fishing industry and a dying (already dead) mill industry. Chris is a true warrior and I admire his courage going the distance over and over again with some difficult odds. Chris went into nearby RI to try an auto case where D offered only $30K or so before trial and upped the ante some at trial. Chris did a great job and obtained a verdict of $400,000, stunning defense counsel.  
     What is interesting to me is Chris’s use of voir dire in RI, as we all in MA never get voir dire. Chris was able to use his TLC voir dire techniques in real life probably for one of the first times and, by the result, they worked. Chris reports how after the first day of voir dire, the judge advised him to seek the help of some RI lawyers who know how to do voir dire. In typical TLC fashion, Chris modified the look of his approach to satisfy the judge but still proceeded with TLC type voir dire. Also interesting is that Chris was able to ask for a number from the jury, something else we do not get to do in MA. So Chris was wallowing in procedural bliss over there in RI experimenting with TLC techniques and knocked it out of the park (defense counsel told the jury in closing not even to award medical bills, a gift Chris received graciously and turned it on the defense in his closing). Chris probably won’t report anything out of modesty plus he is a bit swamped as he is currently caught up in an interlocutory appeal on another thorny case and has not had the time to even review his mail.