Mike was 24 when he was hit from behind while waiting at a light to let a fire truck clear the intersection. The light had turned green but he did not go because of the fire truck. He had a L-1 burst fracture which required a fusion. He has had a strong recovery. He can walk for miles but cannot run. Reaching up is no problem but reaching down us painful. He can lay on his back with no pain, side with some pain, and cannot lay face down at all. It hurts to lift his child.
He has a long list of misdemeanor convictions, 12 of which came into evidence. The worst were the 4 violations of DV protective orders. The case was on a calendar in November, and we planned on saying he had not been in trouble in a long time. The case was continued, and he was arrested... Twice. Stealing construction supplies the first time and then a domestic incident that led to some nasty charges.
He also got fired by his pain doctor for running out of pain pills too early on 3 occasions. By contrast, the person who hit him was an attractive, pleasant young woman working on her masters in Christian counseling.
A buddy of mine who is "TLC curious" had this case. He wanted to see how some of this worked and I saw it as a great chance to try a case with a big problem.
The client is not as bad as he sounds, though we could only do prep at the jail through a thick glass and he was getting way too much advice from jailhouse lawyers. It took a lot of convincing to get him to let us tell the jury he was in jail, and to keep him from arguing about what "really happened" when it came to his convictions.
To kick off a discovering the story session, I told him we were in our little cubby at the jail talking through the glass (which we were) but I was his son (now a toddler) as a young man in jail, and he was himself coming to visit me at jail. That we were on opposite sides of the glass. This required a smaller leap of imagination for him than setting up a different scene, and really got the ball rolling. Eventually had him reenacting cooking (something he loves), revealing what causes pain, what doesn't, etc.
TLC elements of trial:
Voir dire: within the first 30 seconds I told them about the criminal trouble, pain doctor trouble, and significant marijuana use. I also read them the entire convictions list and told them everything bad i could think of about him. "you're going to hear a lot of bad stuff about Michael Cook in this trial and most of it is going to be true. I wish it wasn't, but it is." I was a bit disappointed with my ability to get them talking. Part of this was because I followed up a bit with people who spoke up instead of soliciting comment from the group and circling back later. However, it worked about like it did one morning in Sacagewea. The first juror said he couldn't give mike money. Then others reacted and said his problems had nothing to do with it. Then the first guy actually backed off his initial comment. By the time it was over almost every juror had said that stuff didn't matter, without me ever having to say it. It is harder when a lot of the panel is picked and you are down to a few jurors or even one. Not sure how to deal with this yet.
Mike and his Dad testified well and were very honest. His Dad really took to describing with all senses and painting a picture of events, including the horrible scene at the hospital and mikes pain trying to lift his child.
Cross of Defendant: pure soft, storytelling cross. Perfect for her given the contrast between her and Mike. Story began with her not having eaten, buying chicken fingers, smelling them as she drives down the road, and her intent to drive 30 minutes without touching them. I don't think any juror believed those chicken fingers remained unmolested in the passenger seat 30 minutes. Soft cross also effective to deal with her denial that she was on the phone(fireman saw her in phone as accident occurred) and her inability to accept the harm she had caused.
Closing: co-counsel opened and gave first closing. Very heavy on Rules of the road and David Ball 3. All good stuff that I could tie back in with. He is a very relatable guy who was a person talking to people. I gave final closing. There were 3 first person elements. It was clear the defense wanted them to deny Mike because of who he is. I likened the trial to Bugs bunny with the angel on one shoulder and devil on the other. Then I spoke as each.
One of our biggest problems was a subsequent accident which caused a hairline fracture near the site of the fusion. I asked the jury to imagine that we were here in the case of the fender bender at the Golden Corral, and asked what they would expect from defense counsel in that trial. I did first person as him in that trial accepting responsibility and saying all Mikes pain was not due to this horrible accident with surgery, but due to the fender bender at the golden corral. That of course was absurd, and then I was him again talking about the frivolity of blaming pain on the minor injury and not the major one.
Cross of Defendant: pure soft, storytelling cross. Perfect for her given the contrast between her and Mike. Story began with her not having eaten, buying chicken fingers, smelling them as she drives down the road, and her intent to drive 30 minutes without touching them. I don't think any juror believed those chicken fingers remained unmolested in the passenger seat 30 minutes. Soft cross also effective to deal with her denial that she was on the phone(fireman saw her in phone as accident occurred) and her inability to accept the harm she had caused.
Closing: co-counsel opened and gave first closing. Very heavy on Rules of the road and David Ball 3. All good stuff that I could tie back in with. He is a very relatable guy who was a person talking to people. I gave final closing. There were 3 first person elements. It was clear the defense wanted them to deny Mike because of who he is. I likened the trial to Bugs bunny with the angel on one shoulder and devil on the other. Then I spoke as each.
One of our biggest problems was a subsequent accident which caused a hairline fracture near the site of the fusion. I asked the jury to imagine that we were here in the case of the fender bender at the Golden Corral, and asked what they would expect from defense counsel in that trial. I did first person as him in that trial accepting responsibility and saying all Mikes pain was not due to this horrible accident with surgery, but due to the fender bender at the golden corral. That of course was absurd, and then I was him again talking about the frivolity of blaming pain on the minor injury and not the major one.
Finally, on damages, I did the mysterious man in the dark sedan presenting mike with a brief case, but saying how his life would change of be took it. The number they write down should be one that would make the brief case a square deal. I got this from a Nick Rowley closing.
We scaled our damages like a bar graph. If Mike just had these bills and was totally healed, 250. If mike had not recovered as well as he had, 1M or more. But we are more in the middle. This was adopted from something once suggested by Hoyt Tessener(TLC 1990-something). We gave them a range in the middle and they took the top.
Lots of emails and phone calls with TLCers went into this one. Thanks again.
Sam
We scaled our damages like a bar graph. If Mike just had these bills and was totally healed, 250. If mike had not recovered as well as he had, 1M or more. But we are more in the middle. This was adopted from something once suggested by Hoyt Tessener(TLC 1990-something). We gave them a range in the middle and they took the top.
Lots of emails and phone calls with TLCers went into this one. Thanks again.
Sam
Update:
When I think of your job to write down a number for Michael Cook, I think about him pulling into that intersection of 36th and The Plaza. He pulls up to the light on his motorcycle. But he is strangely alone. There is no traffic on the road. Alicia Hendrix is not beside him. Ms. Turlington is not bearing down on him from behind. The bus stop is empty. No fire truck is blazing into the intersection.
Then a long, dark sedan pulls under the light in front of Michael. A man steps out. Dark suit, white shirt, dark tie. Buzz cut. Shoes shined to a high polish. (By now I have buttoned my coat – which I never do – and taken position on the part of the floor I want to be this man).
Hello there Michael Cook. I’ve got something for you. It’s a brief case. It has something in it. It has money in it. And it’s yours. You can have it. You can take it today and no one will ever ask you any questions about it. But you’ll never see me again. You can never come back and ask for more.
But things are going to change for you, Michael Cook. In an instant, things are going to be different. You’ll find yourself laying in the middle of this intersection Michael Cook, and you won’t know what hit you. You’ll be screaming in pain and you will not know why. You won’t know if you’ll ever see your children again. You won’t know if you will ever walk again. You won’t know if you will live or die. You will be out there on that hot asphalt under the sun, in agony, trying to rip off your helmet because you think you are suffocating. And when you pull it off you still won’t be able to breathe.
The ambulance will creep slowly toward the hospital. You will cry out, asking why they cannot drive faster. But they will not. Because they know that if they drive fast they could do you more harm.
When they wheel you in the hospital you will see the pain and fear in your father’s eyes. In your mother’s eyes. As they wonder whether they will lose you forever.
One of your vertebra will be crushed down to half its normal size. They will drive screws and plates into your spine above and below the crush. They will create a metal cage around your broken spine, where the bone will grow and fuse together into a mass of inflexible bone and steel. And that part of your spine will never bend again. Because that is what I am going to take from you, Michael Cook.
And you will not be able to escape me. As you struggle to learn to walk again, I will be there. I will be there for days as you fight just to swivel your legs to put your feet on the floor. I will be there as you take steps first to the door, then later down the hall, then later to your mother’s mailbox. I will be there when you strap that armor, that plastic brace around your body so that you cannot sleep and you cannot turn over.
Oh, you’ll get better. Five years down the road, you’ll be able to walk for miles without pain, but not run. You’ll be able to lie on your back just fine, but rarely on your side, and never on your back. You’ll be able to reach up, but not down. And every time you reach in the refrigerator and reach down for a pot or pan, you will feel pain and you will think of me. Every time you try lift your children, you will feel pain, and your back will falter, and you will think of me. Every time you bend and feel that hardware pop in your back, you will grimace and close your eyes and see my face.
So take it, Michael Cook. Take the money. You will never see me again. But you will never forget me. And you will never escape me.
(Out of character, moved to new spot on the floor). Writing down a number is a difficult job. I wish I could tell you there was some mathematical formula that could assist you. But there isn’t. When you write down a number, make it a number that if you put it in that brief case, it would make it a square deal for Michael Cook.
When they wheel you in the hospital you will see the pain and fear in your father’s eyes. In your mother’s eyes. As they wonder whether they will lose you forever.
One of your vertebra will be crushed down to half its normal size. They will drive screws and plates into your spine above and below the crush. They will create a metal cage around your broken spine, where the bone will grow and fuse together into a mass of inflexible bone and steel. And that part of your spine will never bend again. Because that is what I am going to take from you, Michael Cook.
And you will not be able to escape me. As you struggle to learn to walk again, I will be there. I will be there for days as you fight just to swivel your legs to put your feet on the floor. I will be there as you take steps first to the door, then later down the hall, then later to your mother’s mailbox. I will be there when you strap that armor, that plastic brace around your body so that you cannot sleep and you cannot turn over.
Oh, you’ll get better. Five years down the road, you’ll be able to walk for miles without pain, but not run. You’ll be able to lie on your back just fine, but rarely on your side, and never on your back. You’ll be able to reach up, but not down. And every time you reach in the refrigerator and reach down for a pot or pan, you will feel pain and you will think of me. Every time you try lift your children, you will feel pain, and your back will falter, and you will think of me. Every time you bend and feel that hardware pop in your back, you will grimace and close your eyes and see my face.
So take it, Michael Cook. Take the money. You will never see me again. But you will never forget me. And you will never escape me.
(Out of character, moved to new spot on the floor). Writing down a number is a difficult job. I wish I could tell you there was some mathematical formula that could assist you. But there isn’t. When you write down a number, make it a number that if you put it in that brief case, it would make it a square deal for Michael Cook.
UPDATE:
I got the idea from Nick. As it turns out, Nick first got it from Jude, who apparently originated it. Like any such idea, it plants a seed for more good ideas or different versions of the original idea. Makes me feel awful lucky to be a part of this group.
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