By: MICHAEL PETERSON, KEENAN LAW FIRM

This month’s Reptile^© Superstar is Stuart Ratzan. Stuart Ratzan received his Bachelor’s degree from Amherst College, and his Juris Doctorate from the University Of Miami School Of Law. Stuart’s love for personal injury started in his law school’s tort class. It was there that he learned about two pillars of tort law. The first being the compensation theory of tort law, and the second being the behavior modification theory.

Stuart centered his personal injury career on the behavior modification theory of tort law. The behavior modification theory teaches that tort law exists to protect the community and to incentivize the community to make safe choices. He knew that by teaching the community to make safe choices he could make a meaningful difference in people’s lives. His career as a personal injury lawyer began at Stewart Tilghman Fox & Bianchi, P.A. in South Florida. Stuart Ratzan currently works at the Ratzan Law Group where his firm specializes in Med Mal, MVC, and Product Liability cases.

Outside of the law, Stuart Ratzan volunteers at the Crohn’s & Colitis foundation of America, where he helps to bring awareness and offers support to children who suffer from Crohn’s and colitis. Stuart Ratzan shares his life with his beautiful wife and two beautiful children.

Introduction to Reptile^©:

Stuart remembers having conversations, with Inner Circle member Larry Stewart, early in his career, about the theory of behavior modification and the importance of emphasizing public safety.  These conversations, in retrospect, resonated perfectly with the Reptile^©. As the years passed, Stuart began to notice the grip that the tort reform agenda had on the jury’s psyche. Stuart believed that Don Keenan’s “Reptile^©: The 2009 Manual of the Plaintiff’s Revolution” was the answer to the tort reform movement.

Stuart was eager to implement the Reptile^© in his cases. However, with each new case, Stuart realized that he was still far away from matching the purpose behind the Reptile^©. Stuart figured it was time for him to attend a Reptile^© seminar. During the two-day intro seminar, Stuart remembers speaking to Don about his experiences with the Reptile^©. His conversation with Don ignited his commitment to the Reptile^©. Stuart’s favorite Reptile^© tool is Spreading the Tentacles of Danger. He finds that spreading the tentacles of danger creates the fertile ground necessary to transform an event case into a systems case. Stuart finds this transformation to be the key to inspiring Bubba to care about your case.

Facts of the Case:                                                        

This case took place in the state of Florida. Stuart represented the family of a deceased wife and mother in a wrongful death lawsuit. His client’s wife noticed blood in her urine and went to the hospital. After confirming her symptoms, the hospital admitted her. After a three-day delay, the hospital’s internal medicine physicians consulted a hematologist. The hospital ran a number of tests that revealed that she had a bleeding disorder where her blood would not appropriately clot internally. The inability to clot can be life threatening and requires immediate workup.  The hospital pathologist, despite his finding that that test was abnormal and required further workup, did not document his finding and did not communicate his finding to the treating hematologist.

The hospital’s pathologist ordered additional blood testing. Instead of performing the testing within the hospital, or at a local lab, the hospital sent her blood tests to a lab in North Carolina (LabCorp). The hospital lacked any understanding of the turnaround times for the outside tests, did not order them STAT, and made no inquiry to determine how long the tests would take.  It took almost a full week for the additional test results to return.

In the meantime, while her blood samples were in or travelling to North Carolina, the hospital and its physicians believed that her issues were related to kidney stones. The hospital performed an invasive procedure to locate and potentially remove the kidney stones. No kidney stones ever existed. While she was already suffering from continuous internal bleeding, the procedure caused her to bleed profusely. The test results finally arrived, but were not received or reviewed until after her procedure. The test results revealed that the client’s factor 8 level was at 1%, when it should have been anywhere from 100% to 150%. It was clear that her bleeding disorder did not stem from kidney stones, and instead she was suffering from an urgent and life threatening condition. The hospital’s choice to perform surgery without the lab results was like throwing kerosene on an open fire. The hospital took her to the ICU and labeled her bleeding disorder a factor VIII inhibitor. His client’s wife bled to death in the ICU, on her 50^th Birthday, after spending 17 days in the hospital.

The defense contended that her bleeding disorder was a one in a million diagnosis. They argued that physicians are likely to go their entire career and never see this disorder. Furthermore, the defense contended that the hospital’s diagnosis of kidney stones was the more appropriate diagnosis because it was a more common diagnosis than factor VIII inhibitor.

Stuart viewed the hospital’s claims as excuses for their incompetence. Stuart found that the experts he brought from the University of Pennsylvania knew more about her disorder than her treating physicians did. Stuart argued three things. First, he argued that the turnaround times that the hospital allotted for outside testing did not comply with the hospital’s Joint Commission standards. Stuart believed that the hospital should have either done the testing on site, or sent her blood to the University of Miami, instead of LabCorp, in North Carolina, because of the university’s quicker turnaround time. Either way, the plaintiff needed the test results within hours, not days. Secondly, he argued that the hospital should have refrained from performing surgery on his client’s wife until the lab rendered their test results. Lastly, he argued that the hospital failed to follow their policies and procedures, which clearly outlines how to spot and treat a diagnosis of factor VII inhibitor. The hospital had a specific policy and procedure, which dealt directly with factor VIII inhibitor.

Pre Trial Reptile^©:

Focus Group:

Stuart conducted two focus groups before trial; his first being was a narrative focus group. According to Stuart, the Keenan Ball College had a heavy influence on the organization, presentation, and analysis of his focus groups. He does not believe that his focus groups would have been as impactful without the knowledge he acquired at the Keenan Ball College. The one on one feedback he received from his peers, the techniques he learned from his instructors, and the live interaction he had with the focus group participants solidified his preparation and analysis of his focus groups. During Stuart’s last day at the college, with the help of the attorneys in attendance, he developed his bumper sticker for this case. His bumper sticker went as follows, “If you remember one thing about this case, tests delayed are a life denied.”

Stuart’s narrative focus group consisted of 16 jurors. In an effort to expose the focus group’s negative attribution, Stuart presented his case from the defendant’s point of view. The focus group questioned why his client failed to demand answers from his wife’s physicians. They could not understand why the plaintiff would allow his wife to remain at a hospital that failed to follow their procedures in regards to his wife’s bleeding disorder. Stuart addressed their concerns by asking the participants about their expectations from loved ones. Then during his focus group analysis, Stuart compared their suggestions to the actions that his client took in an effort to cover as many of their suggestions as possible.

Stuart used his second focus group to discuss the level of trust that Bubba has in doctors. He wanted to know who they thought were in the best position to eliminate the harm. As the focus group went on, Stuart learned that the focus group had concerns with liability. Many of the participants believed that the hospital should be relieved of liability if it was determined that the treating physicians were independent contractors. A big feature was the hospital’s consent form that identified the doctors as independent contractors.  Stuart dealt with this issue by asking the focus group whether they believed that the consent form was designed to protect the hospital or the patient. The focus group unanimously determined that the hospital designs these forms in order to protect the hospital not the patient, and they did not like that. Stuart then showed the group the standard Florida jury instructions, which say that hospitals are responsible for independent contractors under most circumstances. It was clear towards the end of the discussion that the focus group believed that no matter the relationship, the doctor and hospital’s duties are to the patient, and if in doing their duties they harm the patient, then they are responsible for the harm.

The last issue in the case was his client’s criminal history. Stuart’s client had a background littered with criminal activity and felony convictions. Stuart knew that the jury would struggle to sympathize with his patient. In order to address this issue during the focus group, Stuart had his focus group participants discuss what they would expect from family members if they were in the hospital. Stuart took all information they discussed, and then introduced his client actions to the group. He asked them how they would feel if they heard that his client was by her bedside every day, continually seeking updates from the doctors, as well as taking care of the family chores and duties while she was in the hospital. Focus group responded well to the actions of his client. This exercise took his client “off code”, and opened the door for the focus group to begin to value his client’s harms and losses.

Witness Preparation:

Stuart’s client was an immigrant. He arrived in North America in the 1980s during the second wave of Cuban immigration. When he arrived in America, he continued to have difficulties holding a steady job. Furthermore, he possessed a significant criminal history, of which included two felony grand theft convictions. His client’s mug shot was all over the internet. He was married to his wife for 12 years, and helped to raise her two children from another marriage. They lived in section VIII housing, and neither of her children had a job.

Stuart’s client felt responsible for his wife’s death. He wanted to save his wife’s life, but he felt as though he failed. He explained to Stuart that he trusted the doctors, but he was concerned about the hospital’s decision to send his wife’s blood to North Carolina. He felt guilty for asking his wife to trust her doctors. The mother’s eldest daughter had recently delivered her child at the same hospital where her mother died. The daughter, against the wishes of her father, urged her mom to go to that hospital. The mother’s eldest daughter and Stuart’s client felt guilty for suggesting and acquiescing to that decision.

Stuart and his client had multiple witness prep sessions. Stuart challenged his client during the second day of witness prep. He asked his client, “Aren’t you supposed to trust the doctors?” His client nodded his head. Next Stuart asked him, “What did you do to cause her to die?” He responded by saying, “Nothing.” By the end of witness prep, Stuart’s client, with tears dropping from his eyes, realized that he was not at fault for his wife’s death. He understood that it was the duty of her physicians to follow the safety rules, and that their choice to ignore them led to the harm that befell his wife. The defense did not provide an offer prior trial.

Reptiling^© the case:

Voir dire:

Stuart started his Voir Dire by asking the jury about their passions. He wanted to keep the mood light, and so he asked the jury whether they had ever heard jokes about trial lawyers. One of the jurors raised their hand, and said, “I heard that a good lawyer is a dead lawyer.” The jury laughed. Stuart found these two exercises to be effective at earning the jury’s trust, fostering discussion, and instituting the rat-killing machine.

Stuart also took the opportunity to address his client’s criminal past. Stuart divulged his client’s rap sheet to the jury, to which a juror asked Stuart if his client had ever physically harmed someone. Stuart informed the jury that none of his client’s convictions involved the infliction of physical harm upon another person. Stuart learned through his focus groups that it was wise to be upfront about his client’s criminal past, as it would invite the jury to be upfront about their biases in the case.

Opening: System Failures, Betrayal, Witness Prep:

Stuart told the facts of the case from the defendant’s perspective, and introduced his safety rules to the jury. The source of Stuart’s rules came from the hospital’s Joint Commission standards. Stuart’s Reptile^© rules went as follows:

1.  A hospital must have a system in place for diagnosing and treating life threatening conditions, to prevent harm and death to everyone.

2.  When a hospital runs tests on a patient, it must do so in a timely and accurate manner to prevent harm and death to everyone.

3.  Doctors and hospitals must use urgency to diagnose and treat the patient’s life threatening condition to prevent harm and death to everyone.

Stuart found it difficult to convey the harms and losses of his client in the face of his client’s criminal past in his opening. Stuart wanted to show the jury that the family’s harms and losses did not reside in a sympathy vote or in the character of his client, or the family’s socioeconomic status, but in the loss of a meaningful person in their life.

Before trial, Stuart laid out three components to his case. He determined that his case centered on the system failure, witness prep, and betrayal. Stuart had the hospital’s safety expert testify about the system failure. Stuart desired to use his safety expert to prove the standard of care, outline the system failure, and test his safety rules. Through focus groups, Stuart learned that Bubba expects the hospital to know the turnaround times for lab test, to quickly review them once they receive them, and to make adjustments in testing depending on the needs of the patient.

The defense hospital administration expert happened to be a CEO owner of a billion dollar health company. The expert’s background fit in nicely with the defendant hospital that was owned by Tenet, which is another billion-dollar company.  The defense expert argued on direct that we are still in a recession, and that perhaps the hospital was trying to save money by deciding to test their patients’ blood in NC rather than the University of Miami. On cross, Stuart and his associate quickly researched some facts about Tenet (the multitude of hospitals around the country, one of the largest hospital companies in the world, annual gross revenue) and easily countered the expert’s arguments. Using the revenue of the expert’s health company, and of Tenet as an example, Stuart argued that the hospital could well afford to send her blood test to the University of Miami. Despite the expert’s stance on the cost of the test, the expert did agree with Stuart’s assertion that a hospital must have timely test results.

Through the expert testimony, Stuart was able to show the jury that the hospital refused to follow their policies and procedures. Stuart laid the foundation for his system failure by impressing upon the jury that the hospital, either through a lack of training or incompetence, chose to ignore the policy and procedures that keep patients safe in hospitals.

Stuart used an airplane analogy to drive the point home. He told the jury to imagine a pilot with an engine light, who decided to fly an airplane without going through the safety protocols necessary to get the engine fixed. Likewise, a doctor with the understanding that the patient has a bleeding disorder should not conduct surgery until they have referenced the Hospital’s Joint Commission Standards on the proper diagnoses. The safety expert agreed with Stuart’s analogy.

Stuart also used the plaintiff’s expert to spread the tentacles of danger. He had the expert describe for the jury the types of harms and complications that might occur when doctors and hospitals fail to follow the rules. The expert’s testimony revealed the seriousness of the hospitals actions. The jury saw the hospital’s actions to be purposeful and harmful. They recognized that as a potential patient in this community, they too were at risk of falling victim to the hospital’s incompetence. Stuart empowered the jury during his closing to eliminate the risk of harm in their community by returning a verdict in client’s favor.

The second issue of the case centered on the harms and losses of his client. During Voir Dire, Stuart made it clear to the jury that his client was not an upstanding citizen in the community. His client’s stepdaughters did not have jobs, and due to their socioeconomic status, the jury might consider them as a burden on the community. Stuart knew that the glue that held this family together was his client’s deceased wife. Stuart wanted to show the jury the impact that her loss had on a family, as well as their resilience in the face of sorrow.

Stuart placed his client on the stand. Stuart’s client did not possess a likable demeanor. He was an immigrant, with a criminal past, and had plenty of tattoos. He was far from welcoming on the stand. Stuart knew he was going to have his work cut out for him. During direct, Stuart worked hard to eliminate his client’s guilt. His client talked about the decisions he made at the hospital in an honest and sincere manner. By end of his client’s direct, Stuart could see that the jury connected with his client’s loss, and believed his actions to be reasonable given the circumstances of the case.

Stuart’s client kept a cool demeanor during his direct; however, he could not make it through his cross-examination without losing his temper. The defense aimed to denigrate the relationship that he had with his wife and family. They argued that his criminal lifestyle preceded his love for his family. They questioned his commitment and loyalty to his wife during her days in the hospital. Stuart’s client could not restrain the anger in his answers, and ended up losing his temper on the stand. However, this did not hurt him in the eyes of the jury. The jury witnessed his passion. They knew he was not faking the emotions he was feeling. The jury embraced the authenticity behind his reaction, and his willingness to fight for his family.

Stuart also had his client’s two stepdaughters take the stand. Their sweet demeanor was a good contrast to the client’s more emotional testimony. They expressed the love their mother showed and the sacrifices she made for them. Her children described her as a loving friend, who worked hard, and shouldered the burdens of the family. Stuart also had the stepchildren speak on the character of their stepfather. They spoke to the fact the Stuart’s client, after their mother had passed, locked himself in his bedroom for several weeks mourning the loss of his wife and to write poetry. The stepchildren’s testimony allowed the jury to identify with his clients suffocating misery and interminable love.

The last issue of the case concerned the hospital’s betrayal. A great majority of the hospital’s betrayal was evident through the actions of the hospital’s pathologist and hematologist.

The hospital’s expert pathologist had never testified in a trial. Stuart had an opportunity to depose the pathologist prior to trial; but believed it was a better strategy to spring his safety rules on her while she was on the stand. The pathologist was unprepared to answer Stuart’s questions on safety rules, which caused him to agree with all of them.

Stuart asked the hospital’s expert pathologist why he was defending the hospital’s pathology department.   The hospital’s expert pathologist stated that the pathology department was not qualified to diagnose for factor VIII inhibitor, that they were only a community hospital and should not be expected to know everything. Stuart followed up by asking why she did not seek out the hospital’s policies and procedures that explain how to diagnosis for factor VIII inhibitor. Stuart finished his cross by asking whether the expert was aware that the hospital’s pathologist, whose actions were at issue in this case, was the one who wrote the policy?! The expert stated that she was unaware of who wrote the policy.

When the hospital pathologist was on the stand, Stuart pointed out that his client trusted the pathology department to follow the hospital policies and procedures, and at the very least, notify the hematologist of any differential diagnoses. Stuart expressed to the jury, that his client would have removed his wife from the hospital if he knew the pathologist was uncomfortable with the procedure, he would have ensured the report got into the hands of the hematologist; he would have refused the unnecessary surgery, if only the pathologist had been honest with them. The jury saw no excuse for the hospital to fail to properly diagnose his wife’s bleeding disorder. However, the more egregious act was encouraging his client to believe they were qualified to do so. The hematology expert was the next person to take the stand. Stuart found the hematologist liable for giving a diagnosis and clearing his client’s wife for surgery without requesting the wife’s blood tests from the pathologist and without securing the final results from the outside lab. It was clear that without the wife’s blood tests, the hematologist’s couldn’t properly diagnose the patient. The hematologist used his testimony to justify the fact that he didn’t receive the report, on the basis that the illness was rare, and the diagnosis for kidney stones was more common. Stuart asserted that it was imperative that he see the report. It would have told him not to clear her for surgery and to wait for the outside tests in order to diagnose the rare disorder.

When Stuart cross examined the hospital’s expert hematologist about his knowledge regarding factor 8 inhibitor, the hematologist expert proclaimed that he was not an expert on factor 8 inhibitor. Stuart and the jury were shocked by his response. He asked the expert hematologist how he felt qualified to give his opinion on factor VII inhibitor he admits to not being an expert on the illness. Stuart stated, “The jury has been here for over two weeks trying to get to the truth in this case, and now you say to them that you’re not an expert.” The jury was disgusted with the defense. They saw their defense tactics as disingenuous. The expert hematologist testimony impressed on the jury that the safety of their families and their community were at risk if they did not use their verdict to make a change in the way the hospital practices.  

Closing:

Stuart started his closing by reminding the jury of his safety rules. He argued that the hospital set-up the hematologist and pathologist for failure. He explained to the jury how the hospital failed to train, failed to supervise, and lacked the resources necessary to diagnosis the patient. Stuart went on to explain how the hospital did not inadvertently cause the harm, but made a conscious decision to inflict harm on the patient. Despite the patient having a rare disease, the hospital had a written policy that showed their physicians how to spot and treat the disorder. However, at the same time, the hospital required their doctors to send tests out of state, causing confusion and delays and preventing accurate and timely diagnoses.  Stuart made it clear that there was no excuse for the hospital to disregard their policies and procedures.

Stuart spread the tentacles of danger by informing the jury that the hospital’s corporate owner has over 80 hospital locations around the country, with the same protocols and expectations as the hospital in this case. He explained to the jury that by making a difference in this case they would be making a difference in every state in the nation. Stuart wrapped up his closing by stating, “The simple truth is, conduct rewarded is conduct repeated, and we don’t want that here or anywhere.” The jury returned with a verdict of $2 million.

Conclusion:

Stuart was impressed with how the Reptile^© prepared him for trial. From witness prep, to focus groups, to jury selection, the Reptile^© was the key to unlocking the potential in his case. Stuart’s case was not an easy one. He had an unsympathetic client, who had major guilt and emotional concerns. In addition, his client’s wife had a rare and complex blood disorder that some doctors have gone their whole career and never seen. The Reptile^© equipped Stuart to overcome those issues. It encouraged Stuart to simplify his case by constructing his safety rules, taking his client off code, the exposing the hospital’s betrayal.

Stuart found the Keenan Ball College to be a key reason why he was able to receive this verdict. According to Stuart, he owes a lot of thanks to his instructors, peers, and laypersons at the Rules and Case Selection College. Stuart attributes this verdict to the one-on-one session during the Rules and Case Selection College, the critique and feedback he received there, to his hours and hours of study while viewing the Witness Prep DVD and Voir Dire DVD, listening to the Focus Group audio CD, and to the unending brainstorming with fellow Reptile^© lawyers. Stuart would like to encourage all of those that are interested in implementing the Reptile^© in their cases, to come out to the Keenan Ball College to instantly strengthen their case for trial.

NOTE FROM PAPA DON:

I regret to announce the passage of one of my strong mentors particularly in the Irish community both in Atlanta and New York.  Don Keough was born, ironically, in the same neighborhood in Nebraska as Warren Buffett and they have been lifelong friends.  While we know and revere Buffett’s business ability, Don’s was equal.  He rose through the ranks to become president of Coca-Cola and then chairman of its board for many, many years.  He was a man of great personal strength and integrity who could create more power in one word than an entire speech by another.  The fact that he had even a minute for me speaks of his character and legacy.  He’s done more for Irish Americans than any single person in history.  Just Google his name and you’ll discover that he subscribed to the former president and chairman of the board of Coca-Cola Robert Woodruff when he said “It’s amazing what you can get done when you’re willing to give credit to others.”  Don never took credit ever.

I do have to say that part of me always felt sorry for Don because every time I went to lunch or dinner with him he would be barraged, and I do mean barraged, with lines of people wanting to talk to him about his donating money to either their business or charity.  I could go on, but I think the lesson for you is that one cannot continue to succeed in this world without mentors; I’ve lost a big one in my life.

NOTES from DON:

 1.  This week I got 8 requests for codes and fortunately I had them all, for all requests. Remember a) do not guess and b) you cannot find the codes yourself. We certainly invite you to ask for codes but if we do not reply, it is because we don’t have the code.

2.  We continue to get requests for referrals to lawyers in other States versed in The Reptile. We got 11 case referrals this week. There’s no charge for this service so if you need an out of State lawyer for one of your cases, just ask. There’s no charge for this service

By Don Keenan

Bet ya prior to the Reptile^© you were like me and really made no connection between “systems” and our work as trial lawyers.  There have been many tipping points along our Reptile^© journey, but none greater than the tipping points related to systems.

So let me talk clear and simply about the first systems tipping point that relates to our new 180 degree different pov (point of vision) on how we handle our cases.

EVENT VERSUS THE SYSTEM FAILURE

From the day I started practicing as a puppy lawyer, I was told that the sole focus of my case was “what happened,” i.e. the car crash, the elevator malfunction, the misdiagnosis, etc.  It was all about the event that produced the injury or death.  When we realize that Bubba don’t care about our client and, likewise, doesn’t care about “what happened,” then we have to search for a different focus.  Bubba don’t care about what happened because there’s no danger, “it happened.”  That’s far different than believing that the “what happened” can happen again and usually with greater frequency and greater force.

So even the Black Hats recognized that we plaintiffs’ attorneys lose our case by concentrating on the event and not creating an atmosphere of continued danger.  If you don’t take my word for it just see the last 90 days of Black Hat PowerPoint journal articles, lectures, and other blithering.

It’s ironic that as David and I were recognizing the system failure phenomenon so was the field of medicine.  In 2003, the great institutions John Hopkins, Mayo Clinic, Cleveland Clinic, etc. got together to study this phenomenon – how can the greatest medical institutions in the world that have the ability to attract the best people and have unlimited thoughts to deliver care continue to kill and injure patients?  Well after nearly 5 years of peer review, they reached the undeniable conclusion that medical malpractice is never just an event.  It’s the result of a system failure that was set in motion weeks, months and even years before the event.  They further recognized that if they did not identify and correct the root cause of the system failure, then similar events would occur more frequently and with greater intensity.  This same phenomenon was identified in the workplace by human factor experts.

I didn’t realize until my Reptile^© system birth that there exists a whole field of professionals dedicated to system failure analysis.  What went wrong and how can it be corrected.  The system failure analysis exists in most engineering schools and many academic institutions at both a master’s and Ph.D. level.

So my newfound friend is a professor of system failure analysis at Georgia Tech.  That’s all he does and he has brought me great insight and instilled in me a true awareness that at the core of a trial lawyer is in fact a system failure analyst.  That’s what we do.  We begin with the outcome of the bad injury or death.  We work backwards to figure out what caused it, when it was preventable, and then frame it in an understandable flow of information so as to convince the jury.  It’s just that simple.

So understand that the first major tipping point of the Reptile^© was an identification that our case, in order to invoke the Reptile^©,must be grounded on a system failure.  It’s been 5 years in the making, but this is the first time I have publicly written these words so don’t think that they are a simple afterthought.  They’re the engine that drives the Reptile^© verdict.

Before I leave this issue, I know that there are some who look at a rear-end collision, throw their hands up and are convinced that it’s an exception to the system failure rule.  Not so says the great whiplash trial lawyer Don Cheney, who begins his case in opening statement with the statistic that “in our county ladies and gentlemen, 70 percent of all car crashes are due to drivers following too close, not following a safe distance behind forward traffic.”

With those simple words Don creates a picture of an epidemic disaster occurring every day and perhaps every hour.  Now my friends, that is sure enough a system failure even though the case is a simple fender bender.  He creates the appearance of ongoing danger.

If this is the first time you’ve heard of using a statistic in opening statement hold on.  I’ll be writing about that soon.

A SYSTEMS APPROACH TO SYSTEMS FAILURE

The Reptile^© template and technique is a system.

This is the second tipping point – the Reptile^© is a system.  In my near 40 years of practice I’ve seen new techniques come and go.  They’re always about just one aspect of our case.  Somebody comes up with a new way to do an opening and several years later somebody comes up with a new mousetrap on how to do a deposition, then along the way, somebody else has a twist on how to handle causation.  During my 40 years it’s been a one‑shot Harry approach but never an entire beginning-to-end approach as is the Reptile^© which is clearly a system.

Now the system has been revealed to you beginning in 2009, but not in totality, because as we learn, we evolve and new systems have been introduced to you. So, in the year 2015, the Reptile^© has become a beginning-to-end system approach to our cases.  Let’s just take a moment to examine where we are.

Step No. 1: Case Selection Criteria System

We often say that this is the most important chapter in the 2009 Reptile^© book. It is also the shortest chapter – four pages, because it only contains three sections that have very easy questions each.  We promise that if you fully understand this step and you fill-out the criteria outline correctly, then you understand the Reptile^©.  For further information go back to Edge 1, Chapter 7, and Edge 2, Chapter 9, for articles going into more detail than here.

Suffice it to say that the criteria forces a lawyer to identify the Reptile^© issues or buttons in the case.

The title is a little deceiving in that it begins upon the first phone call from the client and continues to evolve and mature throughout the case up to and including trial.  Literally the last thing I look at before closing argument is the Case Selection Criteria.

Case Intake Reptilian Buttons (Keenan Law Firm):

1. The Defendant’s Conduct/How it could impact random victims:

a.

b.

c.

d.

e.

2. Community Survival Issues/Why should the community care

about the outcome of the case?

a.

b.

c.

d.

e.

3. Systems Failures on a Reptilian Level/What happened that can

happen again?

a.

b.

c.

d.

e.

Step 2: Keenan Method of Witness Preparation Template

By far, this is the biggest surprise to most lawyers and it comes on the heels of my proclamation that if you follow the seven part template your client will always be your best witness in the case.  Always.

Now in addition to writing on the core of Reptile^© witness preparation.  We also have a 9 ½ hour DVD series which covers five different clients in five different types of cases.  We have attempted to lay out, in that long DVD series, the Reptile^© preparation essentially needed in all cases.

We continue to receive outstanding reviews and testaments from lawyers new and old embracing the seven part template.

See recent blog postings for more information:

1. Black Hat Rat Hole No. 1: Your Client (posted 7 November 2014)

2. Black Hat Rat Hole No. 1: Your Client’s Guilt (posted 21 November 2014)

3. Black Hat Rat Hole No. 1: Your Client’ Major Truths (posted 5 December 2014)

4. Client’s Accepting Responsibility (posted 19 December 2014)

Step 3: Depo System

Gone are the days when a trial lawyer can get by simply by showing up for an adverse or fact deposition with an eye toward simply discovering the facts or discovering the opinions of the expert.  Our second most popular seminar Reptile^© Depositions shows a completely new approach to taking the depositions in which the bottom line is getting the defendant witnesses and experts to prove your case via a well-constructed HIT LIST.  The ultimate swift boat.  And the process is multifaceted.

Step 4: Reptile^© Demonstrative Evidence

Sometime within 2015, there will be published a book that’s been in the works for three years and it’s a game changer on how demonstrative evidence is constructed and used.

The book which will be clearly visual, is narrated and written by me and the prestigious company High Impact. They are supplying the cutting edge illustrations and animations which will be contained in the book.  It’s new and exciting.

Step 5: Voir Dire Pie/System

This subject has been evolving virtually every month since the Reptile^© book has been published and it now is a nine hour DVD with actual voir dire vignettes as well as a one day seminar and a separate course at the Keenan Ball College.

Once again, Voir Dire follows a system template of 12 different subject matters, and equally important, five different ways to ask the same question.

Step 6: The Ball Opening Statement Template

The opening statement template has been evolving about as fast as the Voir Dire and it has five separate parts. It has been bullet proof tested in focused groups and many, many trials.  It works.

As with all things Reptile^© there have been some changes which we’ve been slow to make and only after there has been a clear track record of success.

Step 7: Order of Proof System

The entire focus of the order of proof in a Reptile^© case is completely changed from that of a traditional my client/event case.  This will be one of the areas of teaching, mentoring and examination and clearly a target at the Keenan Ball College.

Step 8: Rules System

Clearly, my friends, Rick Friedman and Pat Malone, fellow Inner Circle members, deserve credit for birthing the concept of Rules.  The Reptile^© has provided the implementation system for a Depo Hit List, embedding in Voir Dire and throughout the trial.

After several years of constant failure by most in drafting rules, I took a page from a system failure analysis.  Fold, I devised a failsafe system to correct the failure rate with “The Keenan 7 Simple Rules for Safety Rules.”

Step 9: Embedding the Code System

All Reptiles^© know full well the importance of codes and are cognizant that codes are one of the three-legs on the basic Reptile^© stool along with rules and spreading the tentacles of danger.  And as with any three-legged stool, if you don’t have one leg, the stool falls.  The embedding of the codes is not new with lawyers with deep Reptile^© experience, but is new to those that are unfamiliar with the concept.  The only place you can get this subject matter is the Keenan Ball College that devotes a full two-day college course due the practicality of how codes are embedded.

Step 10: Cross-Examination Template

Once again, this is a new area for the Reptile^© and we have already designed a template, a checklist and we will soon be teaching this in a two-day Keenan Ball College course.

Step 11: In Trial System

For over five years, we have had a separate Reptile^© in Trial two-day seminar that takes up all issues except Voir Dire and opening, which of course is taught separately.  We are presently planning on incorporating a trial class within the Keenan Ball College that will be two days long.

Step 13: The Keenan Mediation ADR Template

While I have written several blogs about it, there has not been a DVD series nor seminar on this subject.  That’s the bad news.  The good news is after having worked on this subject matter for several years, under the umbrella of the Reptile^© it is now taught at Keenan Ball College in a two-day course which is powered by a template and a checklist.

Many predict the Keenan Method will change the face of mediation throughout the U.S.

Step 13: Damages Template

The whole focus of damages in a Reptile^© case has changed 180 degrees.  As such, we needed time to develop a perfect template.  That was completed back in the summer of 2014, and is now a two-day seminar as well as a two-day Keenan Ball College course.  Once again it’s a system.

Frankly, in the beginning when we launched the book in 2009 neither David nor myself ever envisioned more than a seminar or two, never thought of DVDs, and the idea of a full-fledged college would have been ridiculous.  However, necessity if the mother of invention and here we are.  But we have more work to do.

The Reptile^© is a system. The first thing we need to accomplish is teaching lawyers that the Reptile^© is a fixed system.  I believe we have shaken the lawyers looking for a quick fix or a trick or some form of manipulation.  However, there are still lawyers that want to pick and choose what they like of the Reptile^©.  Coincidentally, those mostly choose the easy stuff and then convince themselves that the harder things can be side-stepped and replaced by the traditional stuff they’ve been doing for years.

Let me be very clear.  The Reptile^© does not co-mingle.  If you fully understand the Reptile^© is about system failure, then you cannot approach your case as an event.  If you do, you’ve just confused the jury and will be destined for a low or no verdict.  When the jury is confused, they’re never going to do the right thing.

The final thing you should remember, as outlined early in this blog, is that all things Reptile^©have been put in a laboratory and vetted through endless focus groups and subsequent trials.  There hasn’t been a single system technique template that has been released that has not been tested and tested hard, with proven results.

So you can imagine why David and I lift off like a nuclear rocket when somebody decides to change the template, change the system, and change the checklist.  Every time they have done so none of it has been tested.  It’s just some cutesy “I am better than Papa Don and David and therefore I will just invent something new; look at me ain’t I great.”  Well David, because of his advanced years, is quite ornery and repulses against folk tinkering with the system.  I, on the other hand, just revert to my Irish roots and want to go kick some ass, smash some teeth.

Please understand we are not dogmatic and dictatorial out of ego.  It is simply because if we proved it has worked, why change it.  Particularly when you ain’t just with it.

Remember all systems depend upon uniformity.  How long do you think a conveyor belt would function if two or three of the folk on the line decide simply to do it their way?  Systems never work with “I think I’ll do it my way approach”.  So as hard as it is try to resist it, stay on focus.

Step 14:  The Focus Group System

No discussion of Reptile^© systems would be complete without acknowledging the tremendous effect of Focus Groups in the hands of trial lawyers.  Gone are the days of the 25K focus groups.  The evolution of the Reptile^© began with a four hour webinar.  We advanced to a two day seminar and now a full course at the Keenan Ball College.  The evolution would not be possible without focus groups, the key that literally unlocks the Reptile^©.

Bottom line: Recognize that there are two tipping points with the Reptile^©.  First is a recognition that all cases are about a system failure on some level.  When you find it, then you found the Reptile^© case and you’ve created danger that continues.  Second, know that delivering the full force and magnitude of the Reptile^© is in fact by virtue of a system and don’t change it.

NOTES from DON:

 1. This week I got 8 requests for codes and fortunately I had them all, for all requests. Remember a) do not guess and b) you cannot find the codes yourself. We certainly invite you to ask for codes but if we do not reply, it is because we don’t have the code.

2. We continue to get requests for referrals to lawyers in other States versed in The Reptile. We got 14 case referrals this week. There’s no charge for this service so if you need an out of State lawyer for one of your cases, just ask. There’s no charge for this service

By Don Keenan

As a puppy lawyer, I tried a ton of medical malpractice cases.  First, no experienced lawyers wanted to touch a malpractice case because it was near impossible to win in front of the jury, and secondly, I needed the trial experience.

Predictably, I wandered in the desert of defense verdicts for longer than I care to imagine until I decided the old adage that insanity is the repeating the same thing in the face of failure.  Now my persistence in continuing to try malpractice in the wrong way actually originated in law school when I had the proverbial lying dog wingtip, bow tie, Brooks Brothers, Roman numeral behind his name trial advocacy professor who had never tried a case.  This trial lawyer wannabe nonchalantly stated that personal injury cases were easy because all you had to do is establish liability, causation, and damages and then step back because the slot machine of justice would pour out hundreds of thousands of dollars in the verdict.  I didn’t know any better, so I continued to try the case from liability first, then causation, and then damages.

Having gotten a chance to speak to a boatload of defense jurors, they all kept getting hung up on liability.  They either didn’t know what the standard of care constituted, or medical language, or they didn’t know the proper way of looking at the informed consent risks.  Doesn’t matter what the liability hang-up, the failure rested on my shoulders and I tried everything imaginable to un‑confuse the liability picture.  Then after multiple defeats, I simply decided to give up and try something different.

Looking for a new way, I asked myself what would happen if I tried causation first, then liability, then damages.  I went in this order mainly because trying damages first didn’t make much sense, but causation might yield better results. I thought this because if you can prove that healthcare providers’ acts or omissions caused the injury, then hopefully, that would minimize the obstacles in the liability portion of the case.

So about 14 years ago in a very bad venue in South Carolina, against the backdrop of a no-offer case and ten straight focus group losses, I decided to try causation first in a case where the liability was quite complicated.

Well to say that trying causation first works is a massive understatement.  The county had never produced a 7‑figure verdict and the jury brought home, in my case, a $13,750,000.00 verdict.  The closing argument in this case is contained in the first volume of my “Closing Arguments in Wrongful Death and Child Injury Cases, Volume I,” page 137.

In order to outline the particulars of the case, I decided instead of me writing, I’d simply to put the headline article from Lawyers Weekly. Here’s the article.

29 May 2000

TRYING CAUSATION BEFORE LIABILITY IS KEY TO LARGEST MED MAL VERDICT IN SOUTH CAROLINA HISTORY

BY KRISTA ZEVITAS

Don Keenan used an unusual trial strategy to win the largest medical malpractice verdict in South Carolina history.

Trying causation before liability enabled Keenan to win $13.5 Million for a girl who suffered serious brain damage because her doctor misdiagnosed the severity of her jaundice when she was an infant.

VERDICT SPOTLIGHT

Keenan always employs this strategy in medical malpractice cases because he believes that when lawyers start with liability, the trial quickly bogs down in a battle of experts over the standard of care. And warring experts tend to confuse jurors and make defense verdicts more likely, Keenan notes.

“The jury doesn’t understand the importance of the violations of the standard of care unless they understand causation first. In trying causation first also simplifies the case, making it easier for the jury to follow. It’s a good idea, especially since 90 percent of med-mal verdicts are for the defense” says Keenan, whose Atlanta firm boasts a record of more than 127 verdicts or settlements in excess of $1 Million.

“So rather than focusing on all the mistakes that doctors made first, we prove when [the plaintiff] was injured and what caused the injury. Then we work backwards and prove how the doctors could have  prevented it.”

For example, in the $13.5 Million case, Keenan set out to prove the injury happened shortly after the girl had seen the doctor.

“If I did this, then it wouldn’t take a lawyer to explain to the jury how the injury could have been prevented” he says. “The failure of the doctor to prevent [the brain damage] would be common sense.”

Defense attorney Robert H. Hood, Sr. of Charleston, South Carolina, declined to comment on the case.

THE VISIT

Sally Bartholomew was born healthy on December 19, 1994. Ten days later, she had her first pediatric visit with Dr. Jo Zurbrugg of Hilton Head, South Carolina. During that visit, Sally’s mother, Carol Bartholomew, complained to Zurbrugg that her baby was having feeding problems and that she was mildly jaundiced. The doctor, however, assessed Sally as a healthy infant with good development.

The following, week, Dr. Zurbrugg saw Sally two more times and determined that she had slow weight gain, feeding difficulties and mild jaundice.

On January 14, 1995, Dr. Eric Zurbrugg (Jo Zurbrugg’s husband) diagnosed Sally with bronchitis, pneumonia, conjunctivitis and an upper respiratory infection.

Two days later, the husband-and-wife team saw Sally together. They noted that the infant had lost even more weight, that she seemed less alert and that her color was gray. Then they instructed Carol to drive her to Memorial Medical Center in Savannah, Georgia, to have her examined further because of her gray color.

About 15 miles en route to the hospital, Carol noticed that Sally was blue and wasn’t breathing.  She grabbed Sally and gave her mouth-to-mouth resuscitation while driving at 60 miles per hour. She revived her, then pulled over to call 911 on the car phone.

Twenty minutes later an EMT ambulance arrived to transport Sally to the Savannah Hospital.

Doctors at the hospital diagnosed Sally with a respiratory virus. They took MRIs and determined that Sally had suffered brain damage due to a lack of oxygen.

Sally’s parents sued the doctors, alleging that they were responsible for her injury. They contended that Sally wouldn’t have stopped breathing or suffered brain damage had the doctors:

• Stabilized Sally in their office with their oxygen tanks after noting that she was gray in color; and

• Properly transported Sally to the medical center (via ambulance or airlift).

The defense contended that whatever happened en route to the hospital didn’t cause her injury. They argued that Sally was born with a congenital defect or that her brain was damaged in utero.

CAUSATION FIRST

Keenan says that his trial strategy can be applied to virtually any med-mal case.

“There are hundreds of labor and delivery cases every year  in which the plaintiffs  are trying to prove that the doctor acted inappropriately during delivery and brain-injured the child,” says Keenan. “And causation facts are often very, very powerful for the plaintiff and appeal to the common sense of the jury.”

In one common scenario, a doctor fails to perform a Cesarean section on the mother and the plaintiff claims that this is the cause of the baby’s brain damage. The ultimate goal is to prove that the baby was brain-damaged during labor or delivery. So Keenan doesn’t start with liability issues because “having experts talk about what the fetal heart strip shows and why the doctor should have performed a C-section after [reading] the fetal heart strip is medical book technical talk that can lose [the jury].”

Instead, Keenan, in his opening statement tells a gripping story that grabs the jury’s attention.

“I start with, ‘At the very moment John came out of his mom, he was blue. He was gasping for air and his PH level – which indicates whether he received proper oxygen – was way low. And all this indicates that he did not get enough oxygen within moments or hours before birth,” says Keenan. “So then the jury’s already thinking, ‘Well, damn, why didn’t he receive enough oxygen? Why wasn’t he taken out sooner?’ And you get to say it’s because the doctor made mistakes.”

After he’s finished giving opening statements and examining his experts, Keenan says the defense is left without much ammunition for their cross-examination.

“If the jury’s convinced by their common sense that the doctor could have prevented something, then the defense is done before they get a chance to get up,” he says.  “They run the risk of making the jury mad by trying to suggest alternative causation and usually can’t score points during cross.”

Once he’s established causation, Keenan shows how the defendant breached the standard of care and is therefore responsible for causing the plaintiff s injuries.

“The jury pays much more attention to the [standard of care issues] once they’re convinced about the cause,” says Keenan, “When they work ‘backwards’, it becomes an easy case.”

BARTHOLOMEW TRIAL

It was particularly important to work “backwards” in the Bartholomew case because the jury wouldn’t be as familiar with its unique facts as it would be with those in a botched-birth case, Keenan notes.

“We could have started the case by talking about the respiratory virus Sally contracted and about the signs and symptoms of that virus,” he says. “We could have put on some experts who would have said, ‘These are the signs and symptoms of that virus and these are the proper tests that should have been run.’ But it would have been a very difficult case for us that way, because they would have produced experts to say just the opposite.”

So Keenan began the story of Carol Bartholomew on the highway.

“I told the jury that she was all by her lonesome and that she looked over and saw her baby dying in front of her,” says Keenan, “I talked about her literally holding the steering wheel in one hand while she held her daughter in the other and breathed life into her. At this point, the jury [believed] that this child was dying on the highway and they were all sitting there wondering how the doctor let this happen. So the doctor was already sunk – there’s no way he could have explained his way out of responsibility.”

After opening statements, Keenan examined Carol Bartholomew, the paramedic team that rushed Sally Bartholomew to the hospital and an EMT expert witness.

“The mom described her horrific ride and the EMT team testified what Sally looked like when they got there,” says Keenan, “And the expert testified that no trained paramedic would have advised Carol to go on the highway alone. He also testified that if the doctors had called the EMTs, they would have gone to the doctor’s office, seen Sally and characterized her as critical. They would have started her on oxygen, hung fluids to [hydrate her] and hooked her up to cardiac and pulmonary monitors to consistently [keep track of] the status of her body.

“Without getting into hyper-technical lawyer and medical mumble, this testimony proved that Sally was severely damaged on the highway.”

Keenan then described the defense’s causation arguments and showed why they weren’t valid. He did this through the testimony of four medical experts.

For example, the defense claimed that Sally’s birthmarks -brown marks on her face known as “cafe au lait” –  signaled that Sally likely suffered brain damage in utero.  A geneticist, however, testified that there was no link between the birthmarks and brain damage.

“The [birthmark] theory was a rabbit trail -as were all the defenses -and our expert said it wasn’t even worthy of discussion.  But we had them go through each defense anyway so that the jury could see how they were almost laughable,” says Keenan.

Keenan says he used first-rate medical experts.

“We had a neonatologist who wrote the first textbook on neonatal transfers, a geneticist who had a 30-year history [as a professor] at a leading medical institution and a pediatric neuro­ radiologist who was a former president of the World Society of Pediatric Neuro-Radiology.”

After trying causation, Keenan went on to show how the doctors breached the standard of care by not preparing for the worst.

“They testified that Sally had good respiration and a good pulse [on January  16],” says Keenan, “But my argument was that they noted she was ‘gray’ and therefore should have planned for the worst -the worst being that she could have stopped breathing on the way to the hospital.  And they admitted they hadn’t.”

KEEPING IT SIMPLE

Keenan notes that he simplified the liability phase by only presenting the most egregious violations of the standard of care the doctors had made.

“We chose not to talk about more marginal [violations] and chose the four most important ones,” says Keenan.  “If we had argued [that] the doctors should have done morejaundice testing early on, the defense would have sounded credible arguing that they didn’t believe the testing was necessary at the time.  And we didn’t want to lose credibility.”

Another key trial strategy, notes Keenan, was simplifying the medical terms so the jury could better understand them.

“For example, if a doctor said, ’The differential diagnosis should have been this,’ I would ask him, ‘Wait a minute, doctor, what is a differential diagnosis?  Would it be okay to just use the term ‘process of elimination’ and forget about the medical term?’” Keenan says’ “And the doctor would answer ‘yes’ and I’d use the [lay] term when I was examining experts.”

To ensure the jury could follow with even greater ease, Keenan decided not to use the power point presentation he’d put together.

“I’m a big believer in cutting-edge demonstrative evidence and we had a $15,000.00 presentation with 300 slides that could do anything but make you coffee in the morning,” says Keenan; “But we had several jurors who were over 60 years old and I didn’t think any of them had even used power point at work before . I felt I could capture their attention better with the old method of demonstrative evidence – so I opted for butcher paper and magic markers.”

Keenan adds that the defense’s allegations hurt their case.

“If the defendants claimed Sally was damaged in utero, they should have noted some abnormality,” he says, “And they didn’t, which made them seem even more negligent.”

THE VERDICT

After a three-week trial, the jury deliberated just three hours on liability and damages before returning a $13.75 Million verdict for the plaintiffs.

The previous record for med-mal verdicts in the state was $5 Million, notes Keenan.  He says that a life care planner estimated Sally’s future medical care expenses at $5 Million.

“She has a vocabulary of about 20 words and will always be in diapers,” he adds. “And she’s at the stage now where she recognizes that she is different from other children and she’s going to need psychiatric care [because of this].”

During trial, the plaintiffs offered to settle for $4 Million, but the defense declined the offer and made no counter offers.

The defense has filed a motion for a new trial.

—————————————————————–

Over the last 14 years I can’t tell you that all of my malpractice cases have been causation first, but I can say the vast majority have been.  For example, I had a case dealing with a childbirth in which the trauma of the process caused the blood of the child to shunt away from the vital organs, in this case the kidneys, such that the client had kidney failure that will require renal transplants every 5 years and the child will have stunted growth to the point where he falls in the dwarf category.

The birth occurred in a university resident training hospital and the records clearly indicated that the use of the vacuum extractor was excessively used above the acceptable norm.  Thus, the jury didn’t have any problem conceding that it was the suction of the vacuum extractor that shunted the baby’s blood to the top of the skull and away from the organs thereby causing renal failure.

Just as soon as I proved the causation, the liability was almost strict liability.  In other words this could only happen with a doctor in violation of the safety code, too many pop offs.

The final example of trying causation first with great success is pure Reptilian^© and finds its home in the medical attitudes research we did very early between 2003 and 2009. We discovered that the code for physician is “you don’t care about me” and the elements being (1) doctors don’t spend time, (2) doctors don’t listen, (3) doctors don’t properly test, (4) patient records are riddled with error, (5) consult doctors do not speak to the attending physicians.  So once two or more of the medical attitude elements are proven, then once again strict liability attaches.  If the doctor didn’t spend the time and didn’t listen, then that’s obviously the reason for the damage, so say Bubba.

Bottom – line.  Not in every case, but clearly many cases, trying causation first in a medical malpractice case will provide the keys to recovery.  Focus groups would be the key to discovering which cases are most appropriate.

NOTES from DON:

1.   This week I got 7 requests for codes and fortunately I had them all, for all requests. Remember a) do not guess and b) you cannot find the codes yourself. We certainly invite you to ask for codes but if we do not reply, it is because we don’t have the code.

2.  We continue to get requests for referrals to lawyers in other States versed in The Reptile. We got 5 case referrals this week. There’s no charge for this service so if you need an out of State lawyer for one of your cases, just ask. There’s no charge for this service.

By Don Keenan

By now, if you are not, you will be, familiar with the employment stool. Understand that all employment stools have three independent legs:

Stool created by David Hoey 

MAJOR TRUTH

Please understand the power of the word independent. There are three legs because each is separate and distinct and stands on its own. Each leg is interconnected with one another because of the phenomena that we all know; a missing leg on a three-legged stool causes the stool to fall.

There are 4 powers of the employment stool:

FIRST POWER OF THE EMPLOYMENT STOOL: SIMPLICITY

The stool is mind numbing simple. The Reptile^© loves simple explanations and visuals.

SECOND POWER OF THE EMPLOYMENT STOOL: BUBBA KNOWS IT

Every single Bubba or Bubbette on the planet has experienced the three-legged stool. Don’t matter if you’re slinging burgers at McDonald’s or doing some top secret job at a nuclear power plant, everyone had to go through some form of qualification process, followed by a training program, and then be subject to supervision of someone else.

Don’t get tripped up on the last leg being supervision and think it doesn’t apply to everyone. It does. Bob Dylan sang years ago one of my favorites, “Everybody serves somebody,” and in it he sings: (I love this so much y’all getting all the verses):

“Gotta Serve Somebody”

Bob Dylan

You may be an ambassador to England or France
You may like to gamble, you might like to dance
You may be the heavyweight champion of the world
You may be a socialite with a long string of pearls.

But you’re gonna have to serve somebody, yes indeed
You’re gonna have to serve somebody,
It may be the devil or it may be the Lord
But you’re gonna have to serve somebody.

Might be a rock’n’ roll addict prancing on the stage
Might have money and drugs at your commands, women in a cage
You may be a business man or some high degree thief
They may call you Doctor or they may call you Chief.

But you’re gonna have to serve somebody, yes indeed
You’re gonna have to serve somebody,
Well, it may be the devil or it may be the Lord
But you’re gonna have to serve somebody.

You may be a state trooper, you might be an young Turk
You may be the head of some big TV network
You may be rich or poor, you may be blind or lame
You may be living in another country under another name.

But you’re gonna have to serve somebody, yes
You’re gonna have to serve somebody,
Well, it may be the devil or it may be the Lord
But you’re gonna have to serve somebody.

You may be a construction worker working on a home
You may be living in a mansion or you might live in a dome
You might own guns and you might even own tanks
You might be somebody’s landlord you might even own banks.

But you’re gonna have to serve somebody, yes
You’re gonna have to serve somebody,
Well, it may be the devil or it may be the Lord
But you’re gonna have to serve somebody.

You may be a preacher with your spiritual pride
You may be a city councilman taking bribes on the side
You may be working in a barbershop, you may know how to cut hair
You may be somebody’s mistress, may be somebody’s heir.

But you’re gonna have to serve somebody, yes
You’re gonna have to serve somebody,
Well, it may be the devil or it may be the Lord
But you’re gonna have to serve somebody.

Might like to wear cotton, might like to wear silk
Might like to drink whiskey, might like to drink milk
You might like to eat caviar, you might like to eat bread
You may be sleeping on the floor, sleeping in a king-sized bed.

But you’re gonna have to serve somebody, yes indeed
You’re gonna have to serve somebody,
It may be the devil or it may be the Lord
But you’re gonna have to serve somebody.

You may call me Terry, you may call me Jimmy
You may call me Bobby, you may call me Zimmy
You may call me R.J., you may call me Ray
You may call me anything but no matter what you say.

You’re gonna have to serve somebody, yes indeed
You’re gonna have to serve somebody,
Well, it may be the devil or it may be the Lord
But you’re gonna have to serve somebody.

The judges and the state bar supervise us, the President of the United States is supervised by Congress and the Supreme Court and vice-versa. The CEO is supervised by the stockholders. The farmer is supervised by the bank and the marketplace. Each and every soul who does anything in this country is supervised; even the welfare recipient is supervised by the caseworker.

THIRD POWER OF THE EMPLOYMENT STOOL: IT LAUNCHES THE SYSTEM FAILURE

The next power of the three-legged stool and that is it’s the guts, at ground zero it lays out the system failure case. Invariably when I mentor one of my referring attorneys and they run into a roadblock about where to find the system failure in the case, I always tell them it’s in one or all of the three-legged stools unless you prove otherwise. Rarely is it proved otherwise. Somewhere in the conveyor belt of screw-ups is either an unqualified person or an inadequately trained person or an inadequately supervised person.

In one recent case, my referring attorney told me that they had just discovered there was no training program in place at the plant and she wanted to know what she should about that. My response was to just go home that night, have a good drink, a stogie if she cared to, and celebrate. Case over. System failure found.

FOURTH POWER OF THE EMPLOYMENT STOOL: IT’S MOST OFTEN FIRST IN TIME

This brings us to the final power of the three-legged stool. By now you should be familiar with the reality of Bubba almost always finding the first in time breach to hang the liability hat on. It virtually never fails that when you lay out a timeline and a narrative to a focus group and ask them if this bad outcome was preventable and if so when, they virtually all go to the first in time event or omission.

Thus when you have one or all of the three-legged stools in a case, this is usually the first in time event or omission. If the truck driver had not been hired because he was unqualified then none of the other stuff matters. Bubba sees that if the driver wasn’t qualified, that’s it. Strict liability thereafter, case is over. Now Bubba will, of course, listen to all the evidence, but will clearly use that evidence as mere confirmation about how brilliant he was to determine the case was over when the driver wasn’t qualified.

SQUEEZING THE ORANGE

Now that we’re on the same page with the three-legged employment stool, let me address “squeezing the orange.” First, as you probably suspect, I don’t believe most lawyers do a very good job of squeezing the orange. Here are a couple of reasons;

1.There are a lot of lawyers who are so focused on the event of the case, the crash, the product failure, the malpractice, etc. They never go back in time and even think about a system failure. So the first mistake is simply not to realize the power of the three-legged stool for all of the 4 reasons outlined above.

2.  Many lawyers, even when they have recognition of the three-legged stool, tend to combine the legs and not see as I tried to scream in the MAJOR TRUTH above, all legs are independent, they’re all important. Some woodpeckers look at qualifications and training as the same thing. They are not the same thing, they’re independent. Each requires a different skill set by the employer and many times we find different people do different legs of the stool. Now the biggest problem with combining the legs is that you dilute the power. It’s just like the lawyer who tells me, “Papa Don, I know what you say about trying the lie in a case, but I did, and it just wasn’t that dramatic and powerful.” Then, I find out after I talk with them, the reason why it wasn’t powerful and dramatic is because they had thrown 20 other ancillary issues into the case so that the actual lie got lost. The purpose of my blog several years ago when I said “try the lie,” (The Keenan Edge, page 50), I meant put the lie up front, spotlight shown on it and make sure the whole case revolves around the lie, not the lie and 20 other damn things.

3.  So the third mistake is lumping the legs together.

4.  Final mistake – not making the legs separate rules. This is in keeping with the independent strengths of each of the three rules. I have seen referring attorney after referring attorney when I ask them for the rules, give me something like, “Rule number one: A truck driver must be qualified and trained,” or “Lab techs must be trained and supervised.” Understand that when you make a rule with more than one leg in it, you’ve done what I just tried to explain above, you’ve lumped the legs together and you’ve lost the independence and the power of that leg.

Practice the three-legged employment stool squeezing the orange. It’s important because it can be a case winner and Bubba loves it.

FINAL COMMENT: A QUIZ

Now I can’t help myself, I need to ask you a question. Why do you think Bubba loves the stool and has not a single problem applying it in a case and deciding the case on it?

Now put this blog down or turn your head and think about it because I’m going to give you the answer right now:

The reason Bubba loves the stool and will apply it in a nanosecond is the power of the quid pro quo my fellow woodpeckers. It’s like the Bob Dylan song again, “We all serve somebody.” Because each and every Bubba on the jury has gone through, adheres to the qualification, training and supervision stool, you better believe that Bubba expects everyone to be qualified, trained and supervised – whether it’s a dentist, a landscape company, or the mobile ice cream truck driver. “If I went through it, by heavens everybody does too.” It’s the “I drive safe and I expect, deserve, and it’s my right that everyone else drive safe also.”

Now if you are on the road to being a superstar, I challenge you with this concept of quid pro quo as it relates to the three-legged employment stool to fashion up some voir dire questions. If you have the courage to do it send them on to me.

Bottom line: The three-legged employment stool is extremely important and powerful in the system failure case and to use it properly you have to understand the stool’s power and also avoid the common mistakes.

NOTES from DON:

1.  This week I got 11 requests for codes and fortunately I had them all, for all requests. Remember a) do not guess and b) you cannot find the codes yourself. We certainly invite you to ask for codes but if we do not reply, it is because we don’t have the code.

2.  We continue to get requests for referrals to lawyers in other States versed in The Reptile. We got 14 case referrals this week. There’s no charge for this service so if you need an out of State lawyer for one of your cases, just ask. There’s no charge for this service.

By Don Keenan

A brief history of the evolution of the Reptile^© revolution before we look into the future:

THE EVOLUTION

Recall that in 2003, I was given the basics of the Reptile^© from my neighbor at the beach, ironically, the architect of tort reform.  I really didn’t want to believe that Bubba put himself first before his brother.  I wanted to believe the scripture that we are our brothers’ keeper.  But I forgot within that context the other more powerful scripture that’s found in every religion in the world, “Do onto others as you would have then do onto you,” the Golden Rule.  So I wandered in the wilderness for a year reading everything I possibly could about the Reptile^© and then finally took it to a round table at an annual Inner Circle meeting and presented it with the premise – prove me wrong.  While I’d hoped they would dump it because, by now, I was obsessed with it. Surprisingly no one threw rocks and instead encouraged me to continue to pursue it.  That’s why I reached out to my good friend David Ball and we formed the research team of Jim Fitzgerald, Gary Johnson, and eventually included Rick Friedman and then went about the country to prove it wrong.

Twenty-two two-day focus groups in nine separate states plus a load of phone conferences and in‑person meetings we conceded that the Reptile^© was even more powerful than we’d thought.  So in 2009, the Reptile^© book was published.  David and I knew we’d have to do a seminar or two to fill in some of the blanks, but never dreamed that in the next six years we’d average two seminars a month, go well beyond the Reptile^© intro seminar and introduce seven specialized seminars to 7,000+ lawyers. Then we went on to the establishment of the Keenan Ball College.  Nobody can dream that big.

THE EARLY PROBLEMS

Along the way, we have encountered a ton of naysayers and “chicken littlers” among our ranks.  First came the MIST lawyers, not all, but some, claimed the Reptile^© only applies to the big cases.  Boy were they proved graveyard dead wrong.  Then came the naysayers that proclaimed we’ll never be able to use rules, spreading the tentacles, or conscious of the community. That’s almost laughable today.

Looking back, the greatest difficulty with the Reptile^© is not with the Taliban insurance companies or the Black Hats, it’s been some of our own miserable pessimistic rank.  But then, I really can’t blame them because as the Richard Fariña’s book title years ago said “I’ve Been Down So Long It Looks Like Up To Me.”

There haven’t been any shocking events along the way but it’s frankly been more like Malcolm Gladwell’s, “Tipping Point,” a series of events, which simply lead to that moment of realization and change.  We once feared the motions in limine, how would we convince the judge we could use rules or even the word safety?  Now that fear is laughable.

MY TIPPING POINT

I believe the turning point for me came during my California trial in 2014, when the opposition to my pro hac vice was not based on my lack of professionalism or civility. The defense conceded I was a nationally recognized professional civil lawyer.  It was their contention that I was going to bring mind control to the California court room and the Manchurian Candidate would certainly arise.  Think I’m kidding?  Read the briefs and their argument.  I don’t know why, but at that point, even with that focused of an attack, I had no fear because I realized that we own the Black Letter law.  We own foreseeability (spreading the tentacles of danger).  We own conscious of the community. We own rules, safety, and everything else. It’s ours and not the Black Hats and not the Taliban.

Up until now, we have lead Guerilla warfare.  We are no different than the Minuteman that fired their muskets from the bushes during the Revolutionary War.  To reveal themselves and fight one‑on‑one would have been certain death.

Thus far, we have maintained a level of secrecy that, with rare exceptions, we can all be proud of.

THE NEW FRONTIER

Now let me set the stage for our future – The New Frontier.

First, let’s all realize that there are two parts of the Reptile^©.  There’s the part dealing with

1) The legal foundation/ Black Letter law:

The right to present our case with full Reptile^© elements.  That Black Letter law is solid and has provided the launch pad for use from the beginning of the case through appeal.

2) The all-important practical application;

How to embed this stuff in the actual case.  That’s not so easy and is difficult to teach and to learn as we see every day in the Keenan Ball College.

IMPORTANT NOTE:

The “how to” and the practicality of using the Reptile^© will always remain top secret and confidential and will never be revealed to the public and certainly not the Black Hats. Understand this before you start becoming very anxious and fearful with what I’m about to say.  You can buy a book on the fundamentals of football or any sport, but you can not buy the New England Patriots play book or game plan.

THE POWER OF GOING PUBLIC

Against the backdrop of our evolution and specifically our outstanding track record for Court Orders after consultation with many of you beginning last fall, the decision has been made to go public with the Black Letter law of the Reptile^©.  No longer will we keep confidential discussions about conscience of the community, admissibility of rules, safety, spreading the tentacles of danger, etc.

We are deliberately and with full force going public and by public I mean the State Trial Lawyers Associations, the State Bar Associations (dominated and controlled by Black Hats), the Judiciary, the law schools.

As with all things Reptile^©, this public display and dissemination will occur using a System, a calculated template on how to accomplish our goal.

Here’s the SYSTEM – the template:

1. Every listserve must accomplish a full research memo on all nine subjects to include the recently added deterrence issue. So if the research ain’t done, get it done. Pass the hat, get some money and hire the research out, go to a law school class…..whatever…… just damn get it done yesterday.

2. We have 47 certified Reptile^© speakers on nine separate topics and Atlanta will have a staff person coordinate with all TLAs and State Bar Associations to offer Reptile^© 1‑hour speakers. Yes, we will be speaking to the Black Hats, pounding into their soul the fact that we own the Black Letter Reptile^© law.  We have a specific set of goals to be accomplished with our Speakers Bureau. We will continue to use our copywrite, patent, and trademark to assure that only certified speakers speak on the Reptile^©. We have a 100% batting average so far.

3. We will vigorously attempt to get our speakers before any Judicial association whether it be trial court or appellate. Once again pounding the Black Letter Reptile^© law that we own.

4. Each listserve will nominate a prominent person to author a Black Letter article for the State’s Bar Journal. One State has already chosen a retired appellate judge who has accepted.

5. To reach future lawyers, a free copy of the Reptile^© book will be distributed to all trial advocacy professors across the country. Listserve members will decide the most appropriate member to approach the professors and open a road to teaching the Reptile^© Black Letter law in law school.

This ain’t happening overnight, and we’ll do it systematically and controlled just like the Reptile^© has evolved so far.

BOTTOM LINE: The time is now to go public with the law we own and educate the judiciary, fellow plaintiff’s lawyers, and law students. Get ready, every woodpecker plays a part.

NOTE: As I wrote the above, its St. Patrick’s week, where nothing but good happens to Irish folk. But more importantly, this is the week that the woodpecker and weasel went viral. Take a look at the power of the woodpecker.

http://www.cnn.com/videos/us/2015/03/04/erin-pkg-moos-weasel-woodpecker-flies.cnn