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.
