Friday, April 13, 2012

For Former Military Lawyer Colby Vokey, the Defense Never Rests

For anyone in need of a little inspiration going into the weekend, here is a link to a great story about one of our own in Grad II, Colby Vokey.

This group is full of so many brave and courageous Warriors with such generous spirits.  I am so grateful for the opportunity to draw knowledge, inspiration, and energy from this group.  You guys are terrific.

Maren Chaloupka - TLC Faculty & '99 Grad

For Former Military Lawyer Colby Vokey, the Defense Never Rests

Once an outspoken judge advocate, Dallas' Colby Vokey was chased from the Marines, but he's still defending troops -- and still speaking his mind.

Sara Kerens
Colby Vokey emerges from behind his wooden desk and crouches into a shallow squat, his broad shoulders eating up the space in front of the panoramic windows that overlook downtown Dallas. He bends at the knees and stretches his hands behind him, his crisp, dark suit crumpling unnaturally.
Vokey's work has taken him to Afghanistan and Pakistan, where he posed with members of the local police force.
Courtesy of Colby Vokey
Vokey's work has taken him to Afghanistan and Pakistan, where he posed with members of the local police force.
Vokey, a retired lieutenant colonel, says he discovered his interest in the law serving on a jury in Dallas.
Courtesy of Colby Vokey
Vokey, a retired lieutenant colonel, says he discovered his interest in the law serving on a jury in Dallas.

"The purpose is to create stress on your joints," Vokey says. His office walls skim the highlights of his life — college and law school diplomas, a Dallas Morning News story about his retirement from the Marines, a Wall Street Journal story about a teenage detainee whom Vokey defended at Guantanamo Bay. Vokey retired from the military in 2008 as a lieutenant colonel, but he still spends most of his time defending the accused in high-profile military cases — including one of the soldiers charged with manslaughter in the recent suicide of Chinese-American Army Private Danny Chen.
It creates incredible pain, Vokey goes on, still crouching. He's attempting to capture, as best he can from the comfort of an Uptown office tower, how that teenage detainee in theJournal story was shackled to the floor with his hands and feet chained together. Omar Khadr was 15 when he threw a grenade that killed an American soldier in Afghanistan, and he was among the youngest to be sentenced to Guantanamo. Shackled to the ground in prison, he eventually tipped over, Vokey says. The guards yanked him by his hair back into position. After a while, Vokey says, the boy urinated on himself. The guards squirted the ground with disinfectant and used Khadr as a human mop, swirling him in his own mess.

Sunday, April 1, 2012

Jury Verdict in Santa Clara County - 150,000 pain and suffering

Ben Dupre, TLC ’11 7Step Grad. TLC Alumni List Serve, March 30, 2012.

Dear Listmates,

A week or so ago, we obtained a jury verdict in Santa Clara County of $150,000 in pain and suffering with a finding of fraud against a non-dentist who owns a dental company, Hi-Tech Dental, in San Jose.   I just wanted to share this for those that are fighting for pain and suffering as part of their case.   
Mr. Bui's Story

In 2008, 68 year old Mr. Bui responded to a radio ad he heard on the Vietnamese radio station for mini-implants, which are metal screws screwed into your jaw bone used to support a denture  The ad was made and presented by the owner of the dental clinic Hi-Tech Dental), Kim Trang, a non-dentist (but a Registered Dental Assistant with Extended Functions).    At Mr. Bui's first appointment, he was seen by Kim Trang, the non-dentist/owner.  Trang examined his teeth and told him he qualified for the mini-implants.  She indicated they would remove the 3 remaining teeth in his upper jaw, replace his partial upper denture with a full upper denture, and insert 4 mini-implants.  Mr. Bui was very excited that he was a candidate and agreed.

Mr. Bui was then scheduled for an appointment to see Kim Trang.  She proceeded to make impressions for the anticipated new upper denture.   Then, Mr. Bui was scheduled for another appointment with Dentist #1, who extracted Mr. Bui's 3 teeth.   Following that appointment, Mr. Bui saw dentist #2, who inserted the 4 mini-implants.    Following that appointment, Mr. Bui saw Kim Trang who attempted to insert the denture, something only a licensed dentist should do.   Trang inserted the denture, but got it stuck.  She neglected to observe that the denture did not contain a part called housings, which would prevent a denture from getting stuck.   In attempting to remove the denture, she used a dental pick and a dental drill.  She picked and cut the dentures out.  The process took approximately 45 minutes.  Mr. Bui was in pain and in great fear, not knowing that Kim Trang was not licensed to perform these acts.

Upon getting the denture out, she then had to repair it because it had been damaged.   She then gave it back to Mr. Bui to wear temporarily while they made a new denture for him.   The damaged denture looked horrible.  It had crud in the teeth, and clearly showed it had been damaged.  I thought of it as something you would see in a Halloween store.

A few weeks passed and Mr. Bui returned to Hi-Tech Dental to get his new denture.  Following that visit, the mini-implants began to become loose requiring Mr. Bui to return to Hi-Tech Dental.   He returned a total of three times.  On two of the occasions, the same dentist to put the implants in saw Mr. Bui and tried to resolve the problem by removing implants and putting new ones in.   On the 3rd visit, Mr. Bui was not able to see the dentist, but instead saw Kim Trang.  Mr. Bui complained that he only had 2 implants left.  She examined his mouth and told him he still had two implants left.   Mr. Bui said but he paid for four.  Kim Trang said, two are better than none.   She then left him with this damaged denture.   She never followed up or tried to fix the problem. 

Mr. Bui then tried to pick up his medical records only to be met with Resistance each time.  On the two occasions he called, he was told he first had to talk to Kim Trang.  He then sent a letter and got no response.  He then had to go with an assistant to pick up the records.   He would discover that the medical records showed a dentist that Mr. Bui claimed never performed services and failed to mention the event where Kim Trang got the denture stuck and used a drill and pick to remove.

Mr. Bui then went to his family dentist who told him your insurance would not cover another denture for a few years.  Mr. Bui did not have the few thousand dollars to pay for another denture.   Thus, Mr. Bui had to wear this damaged denture for months.  He was embarrassed, humiliated, and ashamed.   He covered his smile.  He avoided the break rooms at work.  He could not eat hard foods and for a while had to resort to eating just soup.   He missed no work, had no medical expenses, had no loss of sleep or psychiatric care supporting emotional distress. 

After wearing the damaged denture for over a year, two of the teeth fell out.  Mr. Bui returned to his family dentist who agreed to give him a new denture and put Mr. Bui on a financial payment plan. 

Mr. Bui Sues Kim Trang et al

In 2010, Mr. Bui, represented by other counsel sued Kim Trang, Hi-Tech, and three dentists .   This would lead to two years of long, protracted litigation.  Two dentists were ultimately dismissed from the case and the third settled.   The remaining defendants were Kim Trang and Hi-Tech Dental.  Neither one had offered any money to settle the case all the way up to trial.

Mr. Bui's Trial

Myself and a friend (Mary Dumont) came into the case as trial counsel.   We spent many full days with Mr. Bui to get to know Mr. Bui and understand what happened.   Mr. Bui is from South Vietnam and was in the South Vietnamese Army for 16 years.  He was then imprisoned in a reeducation camp for almost 6 years.   He immigrated to US, raised 8 children (all educated), and has worked for the same company for the last 16 years.   He is one that does not share pain, embarrassment, humiliation.   He did not share his pain re what happened at Hi-Tech Dental with anyone.  Only his wife could see some of his physical limitations re his inability to eat solid foods.    But as far as communicating the emotional side of that, it lacked.   Thus, to tell Mr. Bui's story, we had just Mr. Bui and the dentists and Kim Trang.   Katlin Larimore came out and helped a great deal (I cannot emphasize that enough) with Mr. Bui and framing our case.   Reminding me it is not about Mr. Bui, but about the defendant's predatory practices.

Telling Mr. Bui's Story

Essentially, this was a he-said, 'they' said case where defendants also waived up and down medical records that supported defendants.  We put the medical records on the stand in opening, through all witnesses, essentially showing that these medical records could not be believed and were part of a cover up.   

We put the star defendant Kim Trang on as our first witness and proceeded down the line of adverse witnesses. Mr. Bui was one of our last witnesses and told his story honestly and consistently.   As far as Mr. Bui's damages, there were no 3rd party witnesses.  No medical costs.  No lossed time from work.

We had an expert forensic handwriting witness opine that she thought signatures that were purportedly made by a dentist were not, but made by Kim Trang. She also testified to erasures in the medical records. In rebuttal, defendant put on the dentist with the questioned signatures and had her sign her name 5 times and showed separate medical records where she signed her name like the way signed in Mr. Bui's chart. I felt that our expert's opinion had been dealt a severe blow and was scared that the jurors would start distrusting our case. As for the erasures, defendant pointed out (by admission of our expert) that one of the erasures said something innocuous like 'don't bill" which had been erased. His point was all the penciled items were erased b/c they related to insurance and not to treatment, thus innocent.

We had a dental expert examine the denture and testify that it appeared to be cut out with a drilling device consistent with Mr. Bui's story.   Defense got expert to admit that it is possible the damage could have been caused by something else.  At the time, I thought this was ridiculous and a weak question, the truth was clear at this point, and did no redirect on it.


I used David Ball's template from Damages 3 and found it very helpful.   I felt I really had the jurors on the edge of their seat for most of my opening.  Then, I took a risk and did a action scene with the drill day.  Mr. Bui in the chair, gripping the arms, praying out loud to G-D to overcome this problem, squinting, shaking the head, and doing the drill sound.   I noticed jurors pushed back.  I saw I had lost them.  I felt rejected.  I felt horrible.  I had regret.  I had to keep going on, thankfully only 10 more minutes.   Also, I noticed one juror, front row very unhappy to be there was giving me the coldest looks, hard to block out.  Made me feel like I needed to back off.   Made eye contact quite a bit with many of the jurors.


I used Carl's template in his 12 heroes book, very helpful.  I also reviewed a closing transcript from Luke Wallace and saw that he emphasized about 98% of closing on defendant's conduct and only like 2% on damages, only 2%.   I did about 85%, 15%.  Mr. Bui said he almost cried during my closing.  That makes me almost cry as I write this. 

Defense's Story

Defense continued to argue that Mr. Bui's allegations were false, examining 2 dentists to disprove Mr. Bui, multiple rebuttal witnesses, and of course the medical records that disputed Mr. Bui.  Defense argued that Mr. Bui came in with deplorable teeth and he left with deplorable teeth.  We took that theme and used it against them.  We essentially challenged their practice of doing this to folks, then denying it, then covering it up, and then arguing that nobody will value a old man with deplorable teeth.   And, they are betting you jurors won't either.

Our trial was 14 days, two being 1/2 days total, and about 9 days of trial.   In almost granting non-suit motions for defendant, the judge mentioned that our evidence pain and suffering was painfully thin.  The jury came back with 12-0 verdict for 150k (50K against the individual defendant and 100K against the company b/c the individual was acting w/n the scope of employment)   The also came back 9-3 against finding defendant acted with malice, fraud, oppression, thus triggering a punitive damage day of trial.   This was very disappointing.

Talking with the Jurors

I have had the opp to talk with 3 jurors.   I was greatly surprised by the fact that they did not find a battery (one of our claims) b/c a camp of 4 jurors just felt there was not enough evidence to prove she got the denture stuck and drilled.  I was so surprised.  Our client was honest and people knew it.  The defendant was not and people knew it.  The engineer in the group said, since they both are disputing each other, you discount them and look at other evidence.  But, we had the damaged denture and pictures.  We had a dental expert.  The juror said that they did not want to buy the expert b/c he admitted that it could have been caused by something else, despite his opinion that it was caused by the drill.   I felt like they are not being honest with themselves, why else award such money and a conclusive finding on another claim?   But, I also struggle with what I did wrong that caused that to happen.  During closing, I particularly made a point to go over sufficiently drill day and the evidence, but not beat it to a dead horse.  i failed to go over the Burden of Proof.  But, in talking with the juror, she seemed to imply that in discussing the drill day she mentioned to the camp that they were applying a higher standard. 

Post Trial

We are in the process of trying to obtain an injunction prescribing that Hi-Tech maker certain disclosures, in part, on their advertisements that this owner, Kim Trang is not a dentist.  Also, defendant is filing motion for new trial bc the verdict is inconsistent, ambiguous.  He says how can you have 50k for pain and suffering against the individual and then assign 100k against the company for the same pain and suffering.   So, a month from now, we will be fighting over that. 


So many to list.   For the most part, this was my first jury trial doing opening, closing and exams.   I admire those that have done trial after trial, this stuff is brutal.  I needed and still need time to recover from the emotions and exhaustion.  During the course of trial, I made a list of lessons to learn from, one of them is jury instructions.  Man, do I wish the vicarious liability thing was not there.  It seems to now make the whole house that was recently built have to be demolished.   I am of mixed feelings about the drill day, do I continue to do action scenes?  The answer is yes.  Do I think long and hard about them and try to find ways to reach those that would otherwise reject, yes.   Long trials like this require co-counsel, bottom line.  Could not have come close to doing this alone without Mary.   Pick solvent and collectible defendants, we will likely not obtain a penny.   Prepare closings way way in advance, even if I revise it substantially, it still will make the revisions deep with feeling and power.  Don't try to interrupt a defendant's exam to call impeachment witnesses, save that for another day.  This blew up in our face giving the defendant the names of all of our impeachment witnesses (5) so he could dig dirt out and simply prepare. 

Thanks to TLC

Man, words can't really put it right.  I e-mailed multiple times regarding questions and fears I had about this case.  I always got gifts from you all.  Reading other posts and seeing how incredibly hard you work and how skilled you all are is so powerful and inspiring.  It is fuel to fight for righteous causes and for the hard working folks that otherwise would not have a voice.  You all are so gifted, skilled, and caring.  I remember day of opening, I got a few e-mails and it was so uplifting for me, as I started to feel fear about my presentation.  I wear my pouch daily to remind me of my tribe of warriors and that I am part of that tribe, and with it comes great responsibility.  A huge and special thanks to Gerry for making TLC possible for me and writing 'Win Your Case', which calmed me during trial, as it is easy to pick it up and get some gifts right away.  A special thanks to Balam Letona, who sat right there with a chart and helped me pick my jury and gave me amazing gifts re my opening and closing.  A special thanks to Ron Wilcox who woke up at 4:30 a.m. to write a motion so he could be there at my opening, gave me some gifts, and was there giving great help during voire dire, and there to support me at closing.  A special thanks to John Shepardson who helped squash the fear and demons on asking for a lot of money and was there for closing. A special thanks to Luke Wallace for sharing wisdom right before my closing, give the jurors a reason to care.  That is what I put my soul into doing.   I love TLC and am so blessed to be a part of you all. 

Ben Dupre
Santa Clara, CA