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

By David Ball 

The sound of your voice is less endlessly fascinating than you think.

–David Ball’s Mom, 1955 

Truth’s a speedy little critter.

– Anonymous

The Reptile^©’s attention span is short. In the world of Reptilian^© survival, impact must be short and sharp. Karate, not massage.

Of course there have been many huge verdicts in long trials, and many great attorneys have spent entire careers doing long trials. But length of trial is rarely, if ever, a factor in the success, and in all likelihood, kept the successes from being even greater. And long trials kill a lot of winnable cases. This is especially true if you’re not one of the very best trial lawyers. Except in Lake Woebegone, the kids are not above average.

“Long” always means dulled impact, whether in church, a theater, school, and, above all, in trial. You can do everything else right, but when you do it longer than necessary, the rights go wrong. Jurors don’t want to help anyone who wastes their time, and if you make a trial go longer than a handful of days, you are wasting their time.

Length of trial hurts most when relying on the Reptile©. To survive, the Reptile© had to evolve as a sprinter, not a long-distance runner. This is why humans are better at short-term safety (they’ll stomp a spider) than long-term safety (they’ll smoke).

Your need for brevity attaches to every separate piece of trial as well as to the whole. There’s no such thing as a great day-long direct exam, or a great 75-minute opening, or a great but long cross. Doing something superbly for 30 minutes is dynamite. Doing it superbly for three hours is a waste of superb.

Yes, Virginia! Over my 25 years as a consultant, almost every trial I’ve worked on in my neighboring state of Virginia – and many others there – has been brief, usually four to six days (often three) from Voir Dire to Verdict. They all did better than I’d have expected them to do elsewhere, where lengths of trial tend to be two or three times longer and more. This is not because Virginia – a contrib state among other horrors – is easy for plaintiffs. It’s maybe easy for (some) lovers, but not plaintiffs. Adjusting for quality of lawyer and nature of case and jurors, the variable that comes up among the most often – in Virginia and elsewhere – is length of trial.

Virtually no case – even including complex commercial cases – benefits from length. When you cover every single doggone point in the thoroughness law school taught you to do, you bury your strong points and let your weak points blossom to fullness in extended jury perception. In boxing, it’s hard enough to knock an opponent down for a ten-count, so why invite a 20-count or 50- count requirement?

Here are some reasons why long trials are the enemy:

Burial. Inescapably, the longer your trial, the more your important points are buried under piles of junk, and junk is the Defense’s best friend. Not only does the defense get paid more for length, but length vastly increases their odds of doing well. They want you to heap all you can into trial. They bait you into doing so. And they know that time – all by itself – is part of the heap.

Emerging Weaknesses. Like zombies slithering up out of graves, the longer your trial the more time you give weaknesses to emerge and take gargantuan focus.

Novelty. In longer trials, the strongest defense material necessarily emerges later – where, by its novelty, it gets more attention than a brief plaintiff’s case would have allowed. The Reptile^© rivets onto novelty, and in a short trial, all the novelty is all yours. In a long trial there’s a whole new phase of novelty – and it belongs to the Defense, not you – when the Defense finally starts its case.

Internet. My partner Artemis points out that trials are often lost for no better reason than weekends, especially multiple weekends, during trial which give jurors plenty of extra time to surf the web. Which they do and nothing can stop them. With more time, they’re more able and likely to find bad, often false stuff about the science, the witnesses, the lawyers (including you or creeps with your name), and God knows what all else. This happens even when jurors go on line to find stuff to help your side. Sure, jurors go on line about the case even during short trials, but the time they spend increases exponentially as the trial days drag on. So if one weekend during trial is bad, a second weekend is several times worse. And allowing a third weekend is reckless. (See “Virtual Reality” in the Appendix of Ball on Damages 3.)

Attention gaps. Even on the first day of trial, juror attention is sporadic (though when you do it right, they pay nearly 100% attention to your opening). Attention diminishes significantly over the first two or three days of trial, and then abruptly plummets. You might not notice because 1) you might not keep a close enough eye on jurors and 2) jurors are great at looking engrossed when they’re actually disengaged. And when something important for your side comes up when a juror is disengaged, it can’t register. So it won’t be in the juror’s mind when you need it to be: during testimony. Injecting it as a reminder in closing is too late, because jurors discount most of what they first register during closings and deliberation. Good stuff they didn’t register in testimony is likely DOA when they first register it in closing or deliberations.

Attorney fatigue. Artemis will be writing a future blog on attorney fatigue. For now, I’ll just say that the longer the trial, the less physically and mentally able you’ll be to do your best, or even decent, work. Your perceptions and judgment will be way off peak. This phenomenon affects your side far more than the defense. When you make trial a lawyer-endurance run, you’re your own victim.

Judge’s impatience. Judges want you to move quickly. The longer you make your trial go on, the less hospitable the judge may be to making decisions your way. This is a particular disadvantage early in the Defense case-in-chief, when the judge has not yet developed the same level of impatience with the Defense.

Cost. Given the benefits of short trials (see below) and the disadvantages of long ones, your time and money for longer trials are mostly wasted. If you have to pay your expert’s rate for two days on the stand, it’s only because you didn’t take a half day of effort in advance to figure out how to get him on and off in two hours. (And shorter direct almost always means shorter cross.)

Human decency. Why force a jury to sit through a long trial when a long trial will likely hurt you? Are you nuts?

A trial is not Waiting for Godot. A “Who the hell cares?” attitude creeps in faster than you think, because habit, as Godot’s great playwright – Ireland’s Samuel Beckett – said, is a great deadener.

ADVANTAGES OF SHORT TRIALS (or, Move it!) 

Jack Spratt could eat no fat. But he gobbled up the lean! Every juror is Jack Spratt. Lawyers always think they understand their cases, but they don’t really until they’ve separated the fat from the lean, and 100% junkcan all the fat. The very process of doing this is essential to fully understanding your case. It takes a lot of work, which is why only a small percentage of lawyers do it.

Holds juror enthusiasm. Your well-done opening statement creates enthusiasm: the Reptile^© is fully alert. But as your case-in-chief draaaaags on, juror enthusiasm wanes. The Reptile^© snoozes. And the Reptile^© is hard to re-awaken. Only a quick in-and-out holds the jurors’ enthusiasm and the Reptile^©’s full participation.

Wider choice of jurors. The shorter the trial is to be, the fewer jurors are removed for hardship. So we have more to choose from. More choice helps us, not the Defense.

Blaming the Defense. Juror irritation at having to sit there day after day is directed at whoever started taking too long. So when you do your case quickly, juror irritation focuses on the Defense.

Pride of work. Long trials never show you at your best. So even though long trials often do well, your odds are far better in short ones. When gauging how much time to spend on each piece of trial, whatever you think is little enough is probably several times too much.

More is less. Extreme more is nothing. As King Lear exhorted, nothing comes from nothing. And yes, of course you can’t control length completely because the Defense will try to make it long. Let ‘em. It’s your case we want short. And it’s hard for the Defense to go on forever when you’ve been brief.

Caveat: Short trial does not mean to talk fast. No one loves a fast-talking lawyer. Short trial means to include a lot less. By definition, you never need more than the essentials. Your most important skill lies in knowing what’s essential. It’s never much.

By Don Keenan

All trial lawyers have been taught the importance of noting and reacting to body language. The body language of the deponent, the trial witness, the jury and the judge are all indicators of their thoughts as well as the trial’s development. However, past events have reminded me how easy it is for trial lawyers to overlook the importance of body language.

I am not much for top psychology books but I did enjoy the book written by a Harvard communication specialist, . The beginning chapter grabbed me because it espoused the critical importance of body language cues in communication. The author’s take is that body language is the most important communicating device and we should learn to both control it in ourselves and to look for it in others.

Several years ago I divided our referring lawyers into categories based on the type of case they referred.  We have a group of tractor-trailer lawyers, medical malpractice lawyers, products and liability lawyers and nursing home lawyers. Each group is composed of six to ten lawyers from around the country, all of which we have active cases with. We periodically, usually 3-4 times a year, get these groups together for mentoring and strategy sessions. We had several of the groups down to my beach house in Florida where we focused on how a lawyer can probe his or her clients’ self-awareness beliefs among other things.

Those who have attended the Reptile^© seminars know that there are three steps in the self-awareness phenomena:

• Step one – our own self-awareness.
• Step two – understanding how witnesses believe other people perceive them.
• Step three – how witnesses change their core self-awareness (who they really are) to conform to step two (the way they think people perceive them).

At the latest group session, I conducted a demonstration that I do frequently, where one of the lawyers played themselves while another lawyer played themselves as well as their client. I watched carefully, looking closely at the lawyer/client body language, which was profound in every instance.  Tapping of the foot, tapping of the heel, squeezing of the hands, clicking of the pen, leaning back, leaning forward – you name it, we saw all types of body language exhibited during the demonstration. It was a rare exception when the examining lawyer completely ignored the witness’ body language. I know this because I asked the participating attorneys to tell me what they saw and how they used it in their follow up questions. The lawyers admitted that they were so focused on listening to their answers and getting ready for the follow up question that they really didn’t take time to notice the body language.

After their unawareness was pointed out to them, the lawyers began to focus more on body language and reported that the witness’ body language gave them better information on what follow up questions to ask versus the answers themselves.

I usually place a “clickable” ball point pen nearby the role play.  Like magic, the “witness” will pick up the pen and it then becomes a barometer of stress.  When calm, the pen in hand remains silent.  Under stress or anxiety, the pen clicks so fast I believe the spring may break.

After the role play, I as the group, first, what body language they noted.  No one usually notices anything, let along the pen activity.  Then I turn to the “witness” who likewise says nothing.  Then I ask what they were doing with the pen during the role play and most say, “Nothing.”

Case closed, we need to do a better job at understanding the body language of others or, just as important, our own body language.

As many of you know, we conduct filmed focus groups almost on a weekly basis. While it would be impossible to watch all of them, I do watch several without sound; simply clicking the DVD to mark where I notice significant shifts in juror body language. For those DVDs that I can’t watch, I have people on staff do the same for me. Our AV guy then compiles all of the segments where I’ve marked significant body language shifts onto one DVD. More than 90 percent of the time, that which accompanies a shift in body language is also a significant tipping point of evidence presented at the focus group. Marking the body language gives me the opportunity to segregate the really significant points. We do the same critique for our depositions as well.

The purpose of this post isn’t to outline examples in neither shifts in body language nor the science behind it, but rather to point out that the vast majority of us simply overlook it. Thus, the purpose of this blog is to ask all of you to pay closer attention to the shifts in body language. In doing so, you will be able to determine the significant parts of your case.

In a later blog we will discuss the methods of dealing with your clients’ self-awareness. For now, just watch and be attentive to change in body language. My longtime friend, fellow member of the Inner Circle and member of the original Reptile^© research team, Jim Fitzgerald, is a student in the science of Neuro-Linguistic Programming (NLP). While I don’t profess to understand the full range of NLP, Jim and others have taught me enough to make it truly useful and profoundly significant to me. Likewise, I hope to talk further on this phenomenon; but again, for now, just watch. You’ll be surprised what you see.

Bottom line: Body language is clearly a form of communication.  Body language can either help us or kill us.  Knowledge and awareness determines the outcome.

Note: Check out the “Trending Update and News” section on the Home page to find more good stuff and quick updates!

By: MICHAEL PETERSON, KEENAN LAW FIRM

This month’s Reptile^© Superstar is Luke Baker. Luke received his bachelor’s degree from Appalachian State University, and his Juris Doctorate from Campbell University’s Norman Adrian Wiggins School of Law. Luke met his wife, Laura Baker, in law school and not too long after graduation; they moved to Concord, NC, and got married. After graduation, Luke worked with a local law firm for about a year, until he decided to open his own. He opened The Baker Law Firm in 2009 and was joined by Laura later that year. One year later, Luke and Laura were joined by their current partner Amber Billick, resulting in the firm changing to Baker Billick, P.A. Luke’s practice focuses on MVC and premises liability cases.

Outside the law profession, Luke has served on the board of the Community Free Clinic, an organization that seeks to provide free healthcare to those who do not have health insurance. He has also held membership in the Concord Rotary Club, Cabarrus Chamber of Commerce, and other local organizations. Luke and his firm are avid supporters of The Cabarrus Partnership for Children. The mission of the organization is to ensure that services in health, early education and family outreach are available and accessible to children. Luke and his wife, Laura, have two children, ages five and two.

Introduction to Reptile^©:

Luke Baker bought the “2009 Reptile^© Manual” in 2011. According to Luke, the Reptile^© was overflowing with quality information. Every new chapter was a new discovery. His curiosity led him to the Reptile^© Introduction seminar and the Reptile^© Masters seminar in Atlanta, GA. Luke finds it satisfying that he could begin his Reptile^© journey as a puppy lawyer. From this vantage point, his experience provided him with a greater opportunity to trust the Reptile^©, without having to unlearn any old techniques, practices, and habits. Luke’s favorite Reptile^© tool is spreading the tentacles of danger.

Facts of the Case:                                                       

“Christine,” a 21-year-old college student, decided to earn extra money over the summer by working at a concession stand at the Charlotte Motor Speedway selling margaritas. Christine’s concession stand closed before the race was over. So after it closed, she decided to head home before the increase in traffic. As she was heading towards the parking lot, a 2007 Dodge Ram 4×4 struck her from behind with its front right fender. The Dodge Ram grazed her on the left side of her lower back and elbow. The passenger side mirror hit Christine on back of the head and across the top of her left shoulder. At the hospital, Christine underwent a standard medical work up. The report confirmed the crash did not break her bones. The hospital decided to release her. Outside of little aches and bruises, the hospital expected her to recover from her injuries.

Christine was a life-long musician and a music major in piano performance at the time of the crash. Within a few days after the crash, Christine was concerned because her left arm was not performing normally, making it hard for her to play. She had pain, numbness, burning, tingling, and loss of function in her left arm, in addition to neck pain and upper back pain. Her treating physicians sent her for physical therapy and occupational therapy, which was of limited help. The physicians ordered multiple MRI’s of her spine, wrist, elbow, and shoulder, along with EMG/NCS studies of her left upper extremity. All of her test came back negative. Christine’s records were replete with references such as “Pain of uncertain etiology” and “No objective findings to substantiate the subjective complaints of pain.” She also had a medical history of recurrent back pain/soreness from the hours she spent at the piano practicing. The lack of any diagnostic findings combined with the pre-existing history of back and neck pain made the task of proving Christine’s case to a jury difficult to say the least.

Eventually, Christine found herself referred to a pain management specialist who placed her on Lyrica and other strong narcotics to help with the pain. While on Lyrica, Christine experienced some relief from the numbness, burning, and tingling, which suggested a neurological component to her injury. Unfortunately, one of the side effects of being on Lyrica was weight gain, which led to additional stress and self-image/esteem issues for Christine on top of her frustrations over not being able to play piano as well as she could before she was hit.

Christine decided to wean herself off Lyrica, which incited her pain and discomfort. The return of her discomfort proved to the pain specialist that Christine had a neurological component to her pain that did not show up on the EMT. The narcotics helped the pain, but they put Christine to sleep, or made her so out of it that she could not play the piano. Therefore, there appeared to be no good solution to help Christine’s condition.

On top of that, because there was no objective findings to correlate to the pain, Christine’s own physicians had suggested that there was a psychiatric or depressive element to her “delayed recovery.” Words like “malingering,” “Secondary Gain,” and “Somatoform disorder” appeared in the records. Thankfully, the pain management physician ruled those out as potential explanations for Christine’s condition, writing in his note that “she clearly loses far more than she gains” and that he had “seen no evidence to suggest malingering or secondary gain” as being a factor. The pain specialist assured her that there are many people who experience chronic pain without evidence to show where the pain is coming from. Christine’s pain specialist advised her to forget about curing the pain, and to begin focus on how to manage it.

The defendant was an older woman in her mid to late 60’s. She was driving her 2007 Dodge Ram pickup with her husband in the front passenger seat and three 11-year-old boys in the back seat, two of whom were her grandsons. The wreck report said the truck was going 5 mph at the time of impact. The crash happened on a road running along the speedway. The defendant was headed back to Hickory, NC, after the race. Two other vehicles were traveling with the defendant’s vehicle, which transported other family members. The defendant’s vehicle was the first of the family’s vehicle to get out of the parking lot onto the road leaving the speedway.

Before filing the lawsuit, the insurer for the defendant refused to make any offer of settlement. During the case and at trial, the defendant argued that she was not liable for Christine’s injuries. The defendant and her insurer attacked the plaintiff’s case on multiple fronts. First, they denied being at fault. Second, they accused Christine of being at fault, which, in North Carolina, is contributory negligence, precluding any recovery at all even in the presence of negligence by the defendant. Last, they claimed that Christine was not injured at all, but if she was, anything beyond a sprain/strain and maybe a round of physical therapy was all that could be fairly attributed to the impact from the crash.

According to the defendant and her husband, they never saw what happened. According to them, their Dodge Ram was traveling 5-10 mph when they heard a sound to the right of their vehicle. When they look towards the right of their truck, they noticed that their passenger side mirror had collapsed on its hinge. They stopped their vehicle and the driver walked around the back of the truck where they noticed Luke’s client resting against the guardrail, crying. They heard another girl screaming, “He deliberately came over and hit her!” Before the police officer arrived to investigate, the defendant put the three 11-year-old boys in one of the other family vehicles, which were following behind. The officer never had an opportunity to interview the boys.

The defendant and her husband denied that the truck ever went any faster than 5 mph. They justified their statement by claiming that there were so many people out there on the road at the time of crash that there was no way to get up to any appreciable speed because there were so many pedestrians out. They claimed that a pedestrian had hit them, rather than the truck hitting a pedestrian. As they claimed, there were so many pedestrians out because they had stayed for the entire race and had not tried to leave early to beat the traffic. Luke’s client stuck to her claim that she left the speedway early. The contradiction in facts made this case ripe for trying the lie.

During discovery, Luke investigated the defendant’s timeline of events. Luke contacted a member of the race team that won that particular race, who told him the winning driver crossed the line at 10:47 p.m. Luke knew the police report showed the wreck occurred at 10:48 p.m. The evidence proved the defendant’s timeline of events could not be accurate. The race data combined with the defendant’s inaccurate statement made it more likely than not the defendant was trying to leave the race early to beat the traffic and, in the process, violated the rule that requires drivers to look where they’re going, pay attention, and see what’s there to be seen, hitting Christine in the process. On top of all this, the defendant and her husband did not present well in their videotaped depositions, appearing flippant, sarcastic, and shifty. The defendant driver would not even acknowledge that the girl she saw next to the guardrail was the person suing her, or that her vehicle made contact with a person on the night in question.

Luke was the third lawyer to take the case. Christine’s first lawyer withdrew when the defendant’s insurance company would not make an offer of settlement. The second lawyer filed a lawsuit, but did not see it through, and ended up taking a voluntary dismissal without prejudice. When the case got to Luke, he re-filed the lawsuit, conducted discovery and took the case to mediation. The insurance company still refused to make any offer of settlement. A month before trial, they received an offer for $10,000. Luke’s client rejected the offer.

Pre Trial Reptile^©:

Luke’s trial preparation of this case was aided in large part by a workday to identify all of the defendant’s untruths and exploit them at trial. The major Reptilian^© theme was trying the lie. One of the most Reptilian^© menaces is a liar, and Luke used the things the defendant said and the way they handled themselves on rather obvious aspects of the case (e.g. truck and human being came into contact) along with the cold hard facts (e.g. winner crossed the finish line at 10:47:51 p.m.) to try the lie.

Reptiling^© the case:

Voir dire:

Luke’s voir dire in this case was limited, which was a judgment call. The one question Luke asked the jury was if they had ever heard the saying, “If it walks the like duck, quacks like a duck, and swims like a duck, then it’s probably a duck.” Everyone nodded in agreement. Luke then brought this question back up in closing argument to explain “the greater weight of the evidence.” In contrast, the defense voir dire was long-winded, confusing, on code, and less impactful. Less is more was the theory in jury selection.

Opening:

Luke’s safety rule was this: “Whenever pedestrians and drivers are in the same place at the same time, drivers must look where they’re going, pay attention, and see what there is to be seen to protect pedestrians from harm.”

Order of Proof:

The first witnesses were the defendant and her husband. Luke called them first to commit them to their theory of the case, setting up the great lie, which the race team engineer and the race data proved to be false testimony. However, when asked what happened on the day of the crash, the defendant chose to backtrack the timeline of events that she presented at her deposition, acknowledging that she had stated they had stayed to the end and that she had been mistaken when she stated to the contrary at deposition. Luke still impeached the defendant, and impeached her again by pointing out the timing of when she had realized this information, and pointing out that before coming to trial, she had learned about what the race team engineer would testify about regarding the timing of the conclusion of the race. Finally, Luke pointed out that the defendant had not bothered to correct her deposition testimony before coming to trial, deciding instead to wait. In closing, Luke used this to point out the rule that all witnesses must tell the truth, and if you discovered you said something wrong, then you must take immediate steps to correct it.

During the husband’s testimony, Luke attempted to go review his deposition testimony with him on the stand. The husband refused, stating that he did not have his eyeglasses and would not be able to read it. Luke then politely reminded the husband that he had seen him reviewing his deposition transcript during a break, whereupon the husband grabbed the deposition out of Luke’s hands and went along with the examination. Husband acknowledged that his wife took the three young boys out of the truck and placed them in another vehicle before the officer arrived. Husband also acknowledged he had been drinking that day since about 2 p.m. However, he said he only had a couple of beers.

Following the testimony of the defendant and her husband, Luke called the race team engineer, who explained the race scoring data, which contradicted the defendant’s deposition timeline. This testimony, combined with the wreck report (stipulated into evidence), along with the defendant and her husband’s testimony, created what Luke calls “the atmosphere of sketchiness” over at the defense table. By approaching the case this way, the entire defense theory of the case was called into question from the beginning, which in turn lent credibility to the entire theory of the plaintiff – not just on liability, but on all aspects of the plaintiff’s case, including causation and damages.

After Luke tried the lie with the defendant, he called an eyewitness to the crash, which proved to be a horrible idea. The eyewitness had previously been cooperative and gave deposition testimony regarding what she saw that night, essentially that she saw the truck cross over into the pedestrian lane and strike the plaintiff. At trial she was not cooperative, accusing Luke of harassing her, stating that she recalled nothing of the night in question, stating that she recalled nothing of even giving a deposition regarding the event, etc. It was a nightmare. Thankfully, due to her uncooperative demeanor and stated lack of memory, she was deemed unavailable, paving the way for her deposition testimony to be admitted in lieu of her sworn testimony.

Luke’s next witness was a licensed engineer. The engineer was qualified, tendered and accepted by the Court as an expert in accident reconstruction and engineering. The Accident Reconstructionist proved to be more teacher than an expert. The Reconstructionist brought in a Dodge Ram mirror mounted to a six foot plank, to which was affixed a six foot ruler. The mirror was mounted at the same height as would be on the Defendant’s truck. Using this exhibit, he explained the basic concept of a lever and a mechanical advantage to explain how much pressure it would take to bend back the mirror. The jury could clearly see that it would take a lot of force to bend back the mirror. They also began to gain understanding of the mechanism of injury. All Luke needed now was a medical expert who would confirm the plaintiff’s damages.

The next witnesses Luke called were his client’s treating pain management physician and several before and after witnesses. Both of them confirmed that before the wreck she was energetic, outgoing, and athletic. She was committed to her studies, and enjoyed the opportunities she had to play the piano at weddings and banquets. However, after the wreck, she was not the same. Her before and after witnesses expressed that the plaintiff had her passion stripped away from her, and her treating physician confirmed that even with treatment, her injuries would not allow her to fulfill her dreams of becoming a musician. It was a powerful picture.

Luke played the DME’s video deposition after his treating physician. The DME argued that her pre-existing neck and back issues (caused by hours of playing piano) were the cause of her discomfort and pain, compounded by continuous stress from additional piano playing, and not the defendant’s Dodge Ram. The DME agreed that when she took Lyrica her pain decreased. He also agreed that her pain stemmed from nerve damage; however, he believed that 100% of that pain stems from a pre-existing condition. Luke asked the DME which side of the body the plaintiff was hit on. The DME stated that the truck hit her on the left side of her body.

Luke then asked, what the records say about the location of her injury. The DME stated that, all the records showed that all her injuries were present on the left side of her body. Luke then asked whether the records mention any symptoms on the right side of her body. The DME says, “No.” Luke followed up by asking, “Doctor, would have us believe that it’s pure coincidence that this young lady is experiencing pain in her left arm, shoulder and neck, and that all of her symptoms following being hit by the truck are on the left arm, shoulder, and neck.” The DME hemmed and hawed and said, “Well she likely had an exacerbation of a pre-existing condition.” Luke made it clear to the jury that you can buy anything in America. You can even buy a doctor to look at medical records and to say that someone is not hurt when they really are.

One of the last pieces of evidence presented to the jury was video footage of the defendant’s videotaped deposition. The defendant’s words really did not matter. It was her smirks, smiles, and refusal to acknowledge the simplest of facts (e.g. that her truck made contact with a human being) was what mattered. This reminded the jury of the defendant’s lies established at the outset of the case. Luke believes the timing of presentation of the videotaped deposition at the end, AFTER the “atmosphere of sketchiness” had already been established was important to the evidentiary value of the video footage.

Interestingly, Luke did not call his client to testify. While represented by the second attorney (remember Luke was attorney no. 3), a Black Hat defense lawyer deposed Christine. Unfortunately, Christine testified to some inaccurate information, albeit innocently, concerning her past medical history and treatment in that deposition which the defense could have used to impair Christine’s credibility. This is a reminder of how important it is to conduct thorough medical record gathering of a client’s pre-crash medical treatment before the client is deposed. The client needs to be aware of what the records say, even if they do not recall the treatment itself to avoid the jury painting her as a liar.

Closing:

During closing, Luke borrowed extensively from the Reptile^© in the Mist book. He asked the jury whom they were going to believe. This case was all about trying the lie and the burden of proof. All Luke had to prove was that it was more likely than not that his client was hit at the speedway, suffered an injury or some injurious result on the left side of her body, and is experiencing constant pain because of those injuries. Luke embraced the idea that pain is subjective – always is. Therefore, anytime we are in a courtroom and someone says they are hurt, it always comes down to whether that person is to be believed.

Luke returned to the “walks like a duck, swims like a duck, must be a duck” analogy from voir dire to explain the greater weight of the evidence. Luke massaged the jury instructions on proximate cause to remind the jury about foreseeability, and that all he had to show to prove causation was that some type of bad outcome could happen from what the defendant did. He then spread the tentacles of danger by explaining how the rule applied in all types of circumstances every day to protect people from harm, such as walking from the courthouse parking lot into the courthouse to answer a summons. He revisited the errors on their deposition timeline, how they backtracked their deposition statement, and used a DME who despite the evidence refused to see that the wreck caused the plaintiff’s pain.

Luke stated, “Who are you going to believe? The treating physician who met and discussed the injuries with Christine, and got to know Christine over a period of years, or the hired gun DME who was hired for trial, who probably spent more time discussing the case in his deposition than he did even reviewing the records.” The code for DME is “hired gun,” and Luke knew the importance of placing the expert on code.

In addition, he admonished the jury to enforce the rules. He told the jury, “If they can get away with this kind of conduct with this young lady, then they can get away with it with anyone.” He reminded them that this was their opportunity to make the community safe by returning a verdict that would deter such harms from occurring in the future.

Verdict:

The jury returned with a verdict of $65,000. Later Luke was able to leverage that verdict into a settlement of $100,000.00. Luke used his safety rules, the defendant’s lies, and the burden of proof, to overcome his client’s pre-existing conditions, “phantom pain,” and venue with a conservative reputation. Luke had viewed this case as unwinnable; and he was ashamed to say he had resigned himself to losing before the real trial preparation had even begun. However, this case proved the power of the Reptile^© and its strength when wielded by an attorney with the will and patience to learn and understand it. Luke cannot wait until his next trial when he will have a chance to see the full results of the Reptile^© from beginning to end.

Note – The one and only comment to Luke from a Juror after the case was over was this – “You’re kind of cocky, but in a good way.”

By Don Keenan

MAJOR TRUTH: The plaintiff is always going to appear, at best, biased and self-serving and, at worst, a liar and exaggerator.

The doctors and healthcare providers never understand the extent of the disability and the mental anguish experienced by the plaintiff.  Plus, their hourly rates can always create a bias with a jury that is insurmountable.

Hands down, the most powerful damage witnesses are the before and after witnesses (B&As), if they are prepared correctly and sequenced.

7 Rules for B&As

Rule 1: Their testimony cannot be general

Instead of testifying, “John was hurt, and I saw he was hurt, and it changed his life,” for each before and after witness, you have to lay the foundation of the before.  How often they were with the plaintiff, and specifically what activities they engaged in. Then, segue to specific events that illustrate the change.  “Let me turn your attention to Thanksgiving two years ago.  What can John not do that he could do previously?”  The anecdotal testimony is far more powerful than simply global statements.

For the wrongful death case, global would be something like “He was a good man.  He lit up the room when he came in.” Specific would be actual events that show he is a good man and did actual good deeds.

Rule 2: Diversity rules

The before and after witnesses are powerful because they are not junked up with a bunch of medicalese and are coming from witnesses just like Bubba.  For that reason, make sure you take a Noah’s ark approach to the before and after witnesses, i.e., old, young, black, white, brown, yellow, and as much diversity as you can possibly find.

Rule 3: Numbers count

My template is to call a ton of before and after witnesses and keep them on the witness stand less than five minutes.  For the most part, the Black Hats do not cross examine.  I once called 22 before and after witnesses in the same day and I was able to expedite the process by having a dozen of them sworn in at the same time.

Rule 4: Identify the triggers for the anecdotal stories

“Joe, tells us what you saw at the baseball field after the collision….”

“Mary, did you see Steve at the high school reunion after the injury?”

These “triggers” will direct the witness to exactly where you want to go and will keep all the witnesses different.

Rule 5: Before and after witness should mirror (see the second rule) the jury

So if you have an elderly juror, have an elderly before and after witness.

In one case, I anticipated there would be several Asian jurors.  My client said she didn’t know any Asians.  So, I asked what dry cleaner and nail salon she used. Turns out, she knew plenty of Asians and they became great witnesses.

Rule 6: Be visual.

Even in short trials jurors forget and will be refreshed with visual clues.  In closing, use a flip chart or poster board to display instant photos of all your B & A witnesses.  In the old days, we used Polaroid photos, now it’s a digital photo.  Besides the photo, put the name of the person and a brief reminder of who they are:  friend, co-worker, family member.

Rule 7: Don’t limit the B&A to just the courtroom.

Least you think the power of the B&A witness is only for the courtroom; they are just as effective in ADR.

Below is a B&A video display on an injury to a tractor repair man.  It’s a touch screen, so all I had to do is touch the photo and the video and the B&A witness would appear full screen and run for a minute or two.  Each line of the screen containing B&A witnesses of a different issue, i.e. witness to depression, witness to use of pain meds, witness to physical limitations.

Clearly the use of visual interview clips helped defeat the pre-existing claim and maximized the case at mediation.  Experienced mediator said, after the case concluded, that it was the most effective use of B&A he’d ever seen.

Last bit of advice: Don’t prepare the B&As at the same time.  I realize it would be time efficient, but you could shoot yourself in the foot.  The final outcome will look rehearsed, everyone one the same page.  The jury will sniff out a bad motive.  In some states, a prep with a B&A is not considered work product, so the Black Hats cross examine on everyone getting together to get “coached” testimony.

Note:  Below is a form the Keenan Law Firm has been using for 20+ years, it just ensures the anecdotal event/story is squeezed like an orange.

Case__________________                        Interviewer ___________________

Date __________________                         Witness name _________________

Relationship (family/friend/co-worker, etc) _________________________

How long have you know the Plaintiff? _____________________________

Circumstances of Knowledge ___________________________________

Triggering Event (holiday, reunion, ballgame, dinner, etc)

________________________________________________________

The Story_________________________________________________

_____________________________________________________________

_____________________________________________________________

_____________________________________________________________

_____________________________________________________________

_____________________________________________________________

_____________________________________________________________

_____________________________________________________________

_____________________________________________________________

_____________________________________________________________

_____________________________________________________________

_____________________________________________________________

_____________________________________________________________

_____________________________________________________________

Bottom Line:  Understand and harness the power of the Before and After Witness by using the 7 rules above.

By Andrew Finkelstein

Note:  Andrew is a frequent contributor to the Keenan Trial Blog.  He is a member of the Keenan Ball Faculty and an avid follower of Reptile^© .  Andrew always brings innovative insight in to all he does.

Now for Andrew’s blog:

Plucked from obscurity, Rocky Balboa is chosen to take on the greatest fighter of all time, Apollo Creed.  Until then, Rocky had grown accustom to his normal, daily routine.  Suddenly he is faced with the greatest challenge of his life.  He is scared and alone.  He feels isolated, inadequate, and incompetent but accepts the challenge and takes it on with great effort.   He is faced with many mini-obstacles.  He has no punching bags, no access to a gym, no corner man, no manager, no dietician, a limited support group, no money, limited knowledge of boxing and he is up against the greatest skilled and funded boxer of all time.

Through hard work and sheer determination, Rocky overcomes these mini-obstacles with a positive attitude towards dealing with the cards that were dealt him.  He finds a punching bag in a meat market, he finds an over-the-hill corner man, he finds support in his girlfriend, and her drunk brother becomes his manager, the local grocer who sells eggs becomes his dietician, he borrows money from the loan shark to pay rent, and the streets of Philadelphia become his gym.

When he first meets Apollo Creed at the weigh-in he is in awe.  Behind the scenes, pulling the strings is the real villain who is only out for himself – to make the most money – the promoter.  The scene is set.  Now Rocky faces the biggest obstacle of them all, the fight itself.   Few remember that Rocky lost the fight.  Everyone remembers when Rocky’s team wanted him to stop fighting and what Rocky does.   His girlfriend, his manager, even his corner man wants to throw in the towel.   At that very moment Rocky is all alone.  His eye is closed from the beating he has taken, and we all remember what he says…. “Cut me.”

Rocky’s is very similar to most of the cases in your office; we just need to uncover them.  None of our clients were expecting their life to be turned upside down.  Following the event each was scared; isolated; facing physical and financial obstacles.  They often have insufficient support teams and many times receiving inferior medical care.   They are counting on us to help fight the biggest obstacle of all, the evil goliath insurance companies with their Black Hat lawyers. They feel overwhelmed.  Yet, each one of our clients has the bravery to carry on, to try and get better, to push through their “Cut me” moments.   The courage to show up at trial and fight in a forum they are completely uncomfortable with.

If “Rocky” was a trial rather than a Hollywood movie, the best witnesses to tell the story are the ones who watched Rocky face the mini-obstacles.  They would describe what activity they observed, Rocky’s attitude while engaging in the activity, and how they were inspired by Rocky.  Paulie would describe how Rocky hit the meat until he couldn’t anymore; the newspaper deliverymen would describe seeing Rocky run the streets every morning before sunrise; the grocer detailing Rocky buying a dozen eggs daily; Adrian describing how tired Rocky was at the end of each day; Mickey describing how he wanted to throw in the towel but Rocky says “Cut me” and that when Rocky answered the bell for round 15 and how awe struck and inspirational it was.

You may ask: Why not have Rocky tell the story; he is the one who lived it?  Calling Rocky as the witness to tell his story risks the jury doing what jury’s do – allowing their biases and prejudices to ignore the true story of bravery because Rocky has the greatest interest in the outcome.  If Rocky were to tell the story, no doubt jurors would interpret his story of getting up before dawn to run as whining or exaggerating; the beating he took in the fight as seeking sympathy, or the way Rocky describes the loss in a way a jury thinks a verdict of money won’t make any difference.   However, when people without a direct interest in the outcome tell Rocky’s story, together with how they were inspired by his actions and attitude, there is no risk of a jury thinking Rocky is whining when he finally takes the stand.   The pressure is off Rocky.  He does not have to give an academy award-winning performance to win.

Every one of our clients has had their own “Cut me” moments.  The moments they felt alone and isolated, the challenges when physical therapy seemed to be too much, the financial need to borrow from the loan shark just to get by, the frustration from hours spent sitting and waiting for medical treatment, the realization that the defendant betrayed their trust when they violated the safety rules.  All obstacles our clients regularly overcome.

You may ask, how best to find your client’s “Cut me” moments?

Hire an investigative journalist to conduct a biography that chronicles your client’s bravery and tells the human story.  A well-trained investigative journalist will spend several hours interviewing your client, gathering photos and video from before the event and finding the vignettes that demonstrate the true damages your client has sustained.  A skilled biographer will reveal the trials and tribulations a client endures by finding the stories of isolation, lack of mobility, humiliation, and loss of respect as well as the stories of their fighting spirit in the face of unexpected challenges.  Chronicling the loss caused to the community as a result of your client being damaged by the defendants violating the safety rules.   Most of our clients contribute something to our community, and when the damages caused prevent them from making that contribution, we are all harmed.   A good biographer will find that story.

The popularity of CSI requires us to first lock in that the preventable event actually caused the harm with detailed medical causation testimony describing the mechanism of injury from the event.  Once causation is clearly established, the jury is most interested in hearing your client’s powerful story of facing those challenges presented by the harm with dignity while preserving their self-worth.  The story payoff is not the accomplishment, but it is in the attempt.  It is what it costs our clients emotionally and physically to take on the obstacles they now face.    Americans love people who will not quit and we have little, if any, sympathy for those that do.

David Ball encourages us to find the “People Magazine” story that details the impact and the harms caused to our client, not just a clinical, medical story.   For example, when People Magazine featured Gabby Gifford, it was the hopeful story of recovery and accomplishments, not the pessimistic story of her deficiencies and limitations.   The story was titled “Gabby Gifford And Her Amazing Story of Recovery”.

Finding those vignettes, however, is half the job.  The other half is finding the right people to tell the story.   If possible, identify independent witnesses who can describe the obstacles your client faced, how they met the challenge and how those actions inspired them.   At trial, independent witness’ testimony should be no more than 15 minutes, but they can tell the human story the way jurors want to hear it.   Often the independent witness can tell their story through their own photos or video.

Some non-medical independent witnesses to consider are: the waitress at your client’s favorite restaurant.  They can say your client no longer eats there (isolation); Pastor to say client has not been at services or volunteer at events as they have in the past (isolation and loss to the community); dry cleaner who weekly received stock tips from the client before the event and after the event explains how your client can’t even count the correct change due to the head trauma (fighting spirit); bus driver on your client’s regular route who can describe the challenges the client now faces getting on or off bus (fighting spirit); neighbors who may not even know your client but observed that their yard was perfectly maintained (before event) and then at some time it fell in disrepair (loss to community); teachers who knew the client before and can describe your client’s character as honest, hard-working, committed; hair dressers/barber who saw your client every few months and they were always happy.

Remember, these independent witnesses should tell the stories of what the client can do; not just what they cannot do.   It is not enough to tell the story that your client used to run marathons and no longer can.  The jury wants to hear how their verdict money will help your client.  They award money to help, not just to compensate.  If you don’t give the jury a reason why the money will help, don’t be surprised with a small verdict.

One more person to consider when deciding who is best to tell a vignette about your client’s fighting spirit is the defendant.   If, at the crash or immediately following the event, your client shows concern for the defendant notwithstanding what happened to them, who better to tell the story than the defendant.   Imagine calling Apollo Creed to the stand to talk about what he thought when Rocky answered the bell in round 15.  Alternatively, if the defendant at the scene makes no effort to inquire about or try to help your client, the foundation is established to ask your client how they felt when the defendant, who just violated the safety rules and caused them harm, didn’t even inquire or help them.   Betrayal will resonate if you followed Keenan’s 7 steps for witness preparation.  Let your client own the betrayal they truly feel.

Once you have the biography that provides the vignettes and the independent witnesses to tell them, you are now armed with the necessary ammunition needed to deliver the compelling human story of the obstacles your client faced and overcame.   Now your work begins.  Follow the 7 steps of witness preparation in Keenan’s video and overwhelm the black hats with unimpeachable witnesses.  Once you have done that, the jury is primed to embrace your client for the survivor that they are.

With the vignettes established, the risk of your client being interpreted as a whiner, quitter or a pessimist disappears.  Back to our Rocky example; “Rocky, you were here when Mickey testified that you said “Cut me” before you answered the bell to 15^th round, right?  Why did you say “Cut me”.    Pure gold will follow.   Jurors want to help a fighter.  Make sure the jury sees the fighter in your client.

Some of you may want to hire trained journalist to interview your client and lay witnesses to develop story themes for trial.   Following is one example.

Emily (      ) Biography

Case (      )

Narrative Biography by: Sarah E. Smith

Total Trial Solutions Biographer Date Submitted: 5/11/2013

CONFIDENTIAL – ATTORNEY WORK PRODUCT

General Background/Family                                                                                     1

Education                                                                                                                   2

Activities                                                                                                                    5

Employment                                                                                                               7

The Accident                                                                                                              7

Life after the Accident                                                                                             8

The Academic Struggle                                                                                             9

Emotional Effects                                                                                                      13

Therapy through Dance                                                                                            14

A Bright Future            15

GENERAL BACKGROUND/FAMILY

Emily Ann (      ) was born on October 24, (    ) in (            ), California. Emily is the only child born to her father, Joe (          ).  Her mother, Laurie Ann had three children from a previous marriage at the time of her birth.

Laurie describes young Emily as beingextremely curious, observant, active, creative, and extremely bright.” She was raised in a loving household where both parents were present, along with her three half-sisters, (   ), (         ), and ( ), all of whom are much older than her. “Everyone loved having a new little baby around,” Emily says. “I brought them together, which was good.”

Emily’s childhood was filled with trips to Disneyland and other outdoor destinations. “We used to have a little camper,” Emily says. “We did a lot of travelling because we lived in California. It was that sort of thing where if you go an hour, you’re in the mountains or you’re in the desert or you’re at the beach.”

Around 2005, when Emily was eleven years old, she and her parents moved from California to Long Island so that her mother could be closer to her parents. Emily has remained in New York since then. She currently lives in New York City, where she is a student at (     ). “New York is definitely my home,” she says.

Laurie Ann and Joe moved back to California in 2012, shortly after Emily began classes at (     ). The two currently reside in (            ), California. Laurie works as a Spanish teacher, while Joe has worked as general contractor for most of life. When Emily is not attending classes she travels to California to visit her parents.

Emily’s half-sister (      ) currently lives in Miami. (         ) resides in Washington State, and (     ) lives New York, only twenty minutes from Emily’s dorm room. Emily remains close with each of her sisters, especially (     ) with whom she shares many of the same interests.

Emily’s three half-sisters are ideal witnesses who can describe her passions, personality, and character prior to her injury.

EDUCATION

Education has always been Emily’s top priority. “I think I just happened to get lucky,” she says. “I enjoy it.” According to Laurie, Emily has “always been a very serious student. […] She never had to be asked to do her homework.” Her film studies teacher, Ken (                             ) offers insight when he says that Emily is “thrilled and delighted in showing up, being engaged in her class work, [and] just engaging with her classmates.”

After moving from California to Long Island, Emily was accepted into the (    ) School. “I loved school. School was my number one, always has been. It still pretty much is,” she says. Debra (       ) works as the director of curriculum and professional development and the dean of

cultural history at the (   ) School. Debra met Emily during her freshmen year and describes her then as being “bright,” “driven,” “focused and joyful.” Debra says that Emily “had little challenge in terms of her academic studies. It seemed relatively easy for her.” Even as her coursework progressively became more and more difficult, Emily excelled in her studies. Laurie says that Emily was “always at the top of her class.”  Emily also credits the structure of the curriculum at the ( ) School for her academic success.  “We had a history-based curriculum, so everything I was studying in history tied into what I was studying in every other class.” She gives the following example: “In ninth grade, we studied the Renaissance, so in science, we did dissections and talked about the Vitruvian Man. In art, we were drawing stuff, like Leonardo. […] Everything’s connected, so you’re thinking on a theme rather than in a discipline, which I really like.”

As a freshman and sophomore Emily enjoyed and excelled in her math classes in particular. “I loved math,” she says. “I was at least a year ahead.” Emily says math “was something I’d never had a problem with […] That was something that totally clicked with me all the time.” As a sophomore, Emily was enrolled in statistics and pre-calculus.

Emily took several dance classes throughout her tenure at the (  ) School. Her dance teacher, Sheryl (                          )fondly remembers Emily being “one of the best students I’ve ever taught,”she says. “She was a lead dancer in every single class she took.” Sheryl served as mentor for Emily. The two shared a close relationship throughout her high school career. As a freshman and sophomore, Emily often shared her plans for her future with Sheryl. “She loved to dance and she loved to do art, but really, she was pursuing an intellectual future of a career,” Sheryl says.

During grades nine through twelve, Emily opted to participate in travel courses offered by the (         ) School. “Every year, our school stops in between the second and third trimester, and for a month, you can either take a course on campus or you can go off campus and do a travel course,” she says. In ninth grade, Emily traveled to Morocco to study photography. As a sophomore, Emily was selected to travel to Egypt and Turkey as part of a curriculum building trip. “We made films, and took photography, and wrote stuff, and brought back objects to infuse into our curriculum, in all the different years when they would study Egypt or Turkey.” As a junior Emily traveled to Ghana to study dance, and as a senior she went on a road trip to the southwestern part of United States, where she continued her studies in photography. When asked what she enjoys most about traveling, Emily says, “I like seeing new things. I like watching the way that people live.  I like filming and photographing.  I love showing what I’m seeing.”

Emily graduated from the (    ) School, with a 4.0 GPA, and was subsequently accepted into (                  ), The School of (          ), at (    ) University in 2012. “I don’t have a major, but we’re also interdisciplinary,” she says. “The kind of thing that makes me really excited about learning is not just pulling yourself into one thing, but understanding things from a more broad perspective.”

During her freshman year, Emily took two courses at (     ): “The Social Construction of Reality” and “Utopia: Imagining New Worlds.” She read the works of Plato and Descartes, among others. “We had to read 60 pages for every class, which meant 60 pages of Plato in two days,” she says. Writing was also part of the required coursework. Emily wrote several critical thinking papers. In addition to the courses she took within the (       ) curriculum, Emily also took two dance classes and a photography class during her first semester at (              ).

Emily hopes to one day establish a career that would allow her to combine “media and performance, dance and theater, photography and videography,” she says. “That’s what excites me the most.”

Emily’s teachers make excellent witnesses who can describe her academic achievements, attitude towards academics, and goal-oriented personality.

ACTIVITIES

As a child, Emily developed a love for acting. “I used to do commercials in L.A.,” she says. “I would go to auditions a lot of the time.” Emily appeared in commercials for companies like Texaco, Pledge, and Pillsbury just to name a few. Emily always looked up to her older sister Kristen, who is an actress, and says, “I always wanted to be an actress with her.” In 2012, Emily got her chance, and traveled to Edinburgh, Scotland with her sister Kristen and the theatre company she is a part of. Emily worked as an intern at the Edinburgh Festival utilizing her photography and acting skills. “It was the most perfect thing I could’ve done,” she says of the experience.

Emily started dancing at age three or four. As she got a little older, Emily gave up acting and focused wholly on dancing. For many years Emily practiced Irish dancing. “I competed and moved my way up through the ranks, which was fun,” she says. Laurie says Emily “was a great dancer,” when she was young.

Emily enjoys reading for fun when she is not reading for school. Laurie remembers that her daughter would, “pick up a newspaper that was sitting on the table. She’d pick up magazines. She always had at least one book going, usually more than one.” When Emily was young, she read American Girl magazine, Vogue, and Seventeen magazines. As she got older, Emily says she “went through a huge fantasy kick. […] My sister and I read Lord of the Rings   to each other, the theatrical one, and we made up all these voices and stuff. Each different character or each different place that a character was from had a different voice.” Laurie describes Emily as being a “really fast reader. She’d get through big fat books in a couple of days.” Chris (        ), Emily’s art teacher and mentor when she attended the ( ) School, says Emily was “always was reading a book. When she wasn’t doing her homework assignments or doing stuff in school, she would always have a book.”

Emily enjoyed spending afternoons after school volunteering in her school’s garden. “I was enthralled in the idea that you could grow your own food,” she says.  “I have a really huge passion in the idea of food being local and organic and ethically-created and grown. I try to eat as much sustainable, good food as possible.” Emily recalls the afternoons she spent watering plants, weeding, and developing the infrastructure of the school’s garden. She smiles when she says the cherry tomatoes were her favorite. “They’re like candy,” she says. “You eat them, and it’s the best thing you’ve ever tasted.” Emily’s time in the garden changed her perspective on the foods she ate. When she was in 8^thgrade she chose to become a vegetarian. “I’m actually dairy-free now too,” she says. Emily is currently a member of the Community Agriculture Club at (       ). “We have a garden.  It’s a lot smaller than my high school garden, but it’s really cute,” she says.

In her free time, Emily enjoys spending time with friends. Unlike other kids her age, who might have spent their time watching TV or playing video games, Emily describes the people in her circle as sharing her interest in ideas. “In high school, we did a lot of philosophizing,” she explains. “We would sit around and be like, ‘What is this? Where are we?’ We all would gather at this one house. It was where we hung out, and we would sit around and play music.” Emily says she got along well with kids a few years older than she was, and that she preferred them to people her age.  “I always hung out with kids who are older than me, so that was fun because   they were wise and could talk and think.”

EMPLOYMENT

Emily worked summers at the (    ) Summer Program. “It’s a hoity-toity, posh summer camp in the Hamptons,” she says. “But it’s really fun. A lot of my friends worked there, so that was a fun way to spend your summer. I was a sailing instructor last summer […] I spent every morning sailing.” In addition to working at the camp, Emily says, “I also babysat all the time.”

Chris (    ) served as Emily’s boss while she worked at  (    ) Summer Program and can provide details regarding her employment.

THE ACCIDENT

On the afternoon of May 25, 2010 Emily was working in the garden of her high school. When she was ready to leave school for the day, she thought about walking the few blocks it would have taken her to get from the school to her house, but instead chose to catch a ride home from her friend Olivia. “My lapse in memory starts before I even saw her,” Emily says. “I don’t remember getting into the car. I have no idea where we had parked.” Emily and Olivia exited the parking lot of the (     ) School and were traveling southbound on Rte. 114 in (   ). Olivia had come to a complete stop with her left turn signal activated attempting to turn onto (         ) Blvd. when Emily remembers hearing the words “That’s a big truck!” and then blacking out. Olivia’s Honda Civic was struck in the rear by a large truck, which demolished the vehicle upon impact.

Emily’s head struck the front of the car during impact, which caused a large laceration. When Emily regained consciousness she remembers feeling “really confused like my body was kind of outside of my body.” Emily was still in the car and says “I vaguely remember them pulling me out.” Emily’s memories following the accident mostly consist of sounds, rather than images. “Everything I remember is from my ears. […] My vision was really weird,” she says. “I can’t really remember anything that I was seeing.” What images Emily does remember appeared to her in black and white, she says.

Chris came upon the scene of the accident. He approached Olivia’s vehicle where he found Emily lying across the driver’s seat of the car. “When I first saw Emily, she was laying across the front seat with blood all over her face. She also had pieces of glass all over her body.” Chris waited as paramedics tended to Emily at the scene. He rode with her in the ambulance to the helicopter. “I remember asking him, ‘Am I dreaming? Am I dead?’ Then, I asked him, ‘Did Pippin happen?’ which was the school show that I had just done, which I was very enthralled in mentally, I guess.” Chris remembers that Emily “kept asking if she was dead and if she was dreaming.” Emily was taken by ambulance to an awaiting helicopter and then airlifted to Stony Brook Medical Center.

Emily has only vague memories of the remainder of the day at Stony Brook Medical Center. After being examined by ER doctors, Emily was given stitches in her head to close off her laceration  She had also fractured her right wrist, which was put in a splint and later casted. “I guess I was conscious for all of this, but I had no memory of it,” she says. Emily was released from the hospital the next day.

Chris (           ) is a perfect witness to describe the scene of the accident and Emily’s condition post-accident.

LIFE AFTER THE ACCIDENT

Emily returned to school the following week. “I was really anxious to go back to school,” she says.  “I felt the need to be okay really quickly and bounce back, so I did. I threw myself back into everything very quickly.” With only a few weeks of school left after the accident, Emily’s teachers waived her final exams. “I was a straight-A student, so they knew that I didn’t need to take my finals to prove to them that I would’ve passed,” she explains.

That summer, Emily filled her time with “scheduled activity,” she says. “I made sure that everyone knew I was fine and that I knew I was fine,” she says. “It wasn’t until later that I started to see there were a lot of things that had changed.”

THE ACADEMIC STRUGGLE

Before Emily’s junior year of high school had even started, Laurie noticed something was different about her daughter: “For the first time ever in her life, I said to her, ‘Emily, you know there’s only a couple weeks until school. I haven’t seen you doing any of your summer reading.’” As the first day of her junior year neared, Emily says, “I tried to do my summer reading.              I sat down to do it, and I couldn’t do it. It was taking me forever. I got headaches, and I had a panic inside of me, and I was like, ‘I don’t know what’s going on.’” Laurie remembers that Emily had a hard time explaining how she was feeling during this time. “She didn’t want to explain it. She didn’t want to talk about how awful it was. I really had to draw this out of her to understand exactly what was happening.” Laurie goes on to explain, “It wasn’t that she couldn’t read. If you asked her to read out loud, she could read. She could have read a whole paragraph, but she couldn’t have told you what it said. Her eyes were working and her brain was working, but they were not working in unison.”

Emily’s junior and senior years were far less enjoyable for her than her first two years of high school. “Reading in eleventh and twelfth grade was not something that was fun at all. It was a huge struggle,” Emily says. Emily discussed the issue with her teacher and mentor Sheryl. “It was very hard for her to understand what she was reading,” Sheryl says. Sheryl made accommodations for Emily in class. “I would never ask her to read, because it was a problem for her,” Sheryl says. “When I would give things to students in a dance history part of the course, I began to realize I had to make a point of giving her something that she could watch on YouTube or something that we could discuss that I could explain to her.”

Laurie did everything she could to help her daughter succeed in school. “I purchased audio books for her,” Laurie says, something she had never done before. Emily says, “My mom helped me with my homework a lot in high school […] She did a lot of reading of complicated material to me so that I could be taking notes.  If I try to read it myself, I can’t get through it.”

Emily’s reading problems have continued to cause her trouble in college. Her core classes during her freshman year at (   ) she found “had a lot of reading,” she says. “I was thoroughly overwhelmed. It was terrible.” These struggles have also caused Emily to abandon all attempts at leisurely reading, which she once enjoyed. “I never read for fun, ever,” she says. “It’s just too time consuming,” Laurie adds. “She only reads what’s necessary […] That’s the biggest change that I see. It’s just her trying to live a life without reading.”

Because of her difficulties with reading, Emily started seeing a neuropsychologist, Dr. (           ). “He suggested that I get books online, or my iPad. I got an iPad for school now because I read words so much better digitally.” Emily says she currently reads digital text much more quickly than print, because her iPad allows her to make the words appear much larger than they do in print.

Reading wasn’t the only problem Emily encountered. She began experiencing trouble concentrating and focusing while in the classroom. Emily says she found “it was exponentially harder the second two years” of high school, beyond what would be expected of the typical progression to more challenging subject matter over the years. Debra recalls that several of Emily’s teachers spoke to her about the problems Emily was experiencing in the classroom. “Her junior teacher, cultural history teacher, and her senior teachers had remarked to me that she had told them that she had difficulty concentrating for extended periods of time, particularly reading or doing writing,” Debra says. “Textural work would sometimes give her a headache, but the difficulty was that it was just difficult for her to focus and maintain concentration for a long period of time.” Debra served as a mentor to Emily during Emily’s senior year and worked closely with her on her senior project. “It was just difficult for her to organize, to sequence in terms of textural things in particular.” Debra says. “She would often excuse herself and just say she just did not feel up to it at a certain time, and that happened frequently.  That never happened when I knew her in 9th grade.” Debra remembers a shift from academics towards the arts as a focus for Emily’s senior project. “I think she had other plans for her senior project, but she stuck with dance because the physical activity was something that she could handle, and she could do that for extended periods,” Debra says. “I think that really altered her direction in terms of how she thought about school in the future, her career, where she applied, what courses she would take; and I think for her, performance became what she felt she could do best.”

Ken (       ), Emily’s media studies and film production teacher at the (   ) School, remembers that during her eleventh and twelfth grade years, “she wasn’t as active in class participation, [or] in class discussion,” Ken says. “She did need extra time to finish her work pretty regularly. I saw that continue.” Chris remembers feeling as though her “confidence, really was shaken. Her perception of her ability changed. She felt limitations, and I could see her getting very frustrated.”

Emily’s difficulties at school worsened when she began developing headaches during her junior year of high school. She says they can come at any time, but they are especially common when she adjusts her visual focus from near to far and vice versa. Laurie offers some insight into this issue saying that “when she looked up at the board, and then looked down at her notes she just immediately got an excruciating headache that would last sometimes the whole rest of the day.[…] She couldn’t function because the headaches were so bad.” Emily’s teacher Ken recalls Emily’s complaints of headaches as being “frequent or a regular complaint that I never noticed or saw or experienced before,” he says. “I noticed a major shift in her complaining about headaches after May 2010.”

Emily began struggling with math beginning in eleventh-grade. She had already completed Statistics and Pre-Calculus, and was enrolled in AP Calculus and AP Statistics for her junior year. “The first week, I couldn’t do the homework,” she says. “It didn’t make any sense.” Despite her struggles, Emily initially remained in her math courses and says she earned “okay” grades. Unfortunately, she also felt as though the amount of effort she was putting in to keeping up with math would cause her to fall back in other areas of her studies. “I will work until I make something make sense,” she affirms. “I will figure it out. I will find the answer. But it was not a healthy situation. It was taking me so much time, and I wasn’t having any time to sleep, and it was making me really anxious.” Laurie saw Emily struggling with her math homework in the wee hours of the morning and took the matter into her own hands. She spoke with the staff at Emily’s school and told them she wanted Emily to drop math. “They really fought me on that. They said, ‘You know she wants to go to Harvard or other places. There’s no way in heck she’s going to get in.’ I said, ‘Just let me worry about that. She’ll write an essay about it. I’m not worried about it. She’s done what she needs to do. She can’t do this. It’s too much and it’s going to put her over the edge.’” Emily jokes that had she remained in math class, “it would’ve been the last thing I did. It would’ve killed me.” Emily has not enrolled in another math class sine dropping those two courses in eleventh grade.

For the first time in her life, Emily noticed that her eyes had become sensitive to certain kinds of lighting. “I noticed being light-sensitive to normal lighting as soon as I went back to school,” she says. Bright harsh sunlight and fluorescent lighting came to trigger Emily’s headaches. Emily points to a several pairs of sunglasses sitting on her desk and explains that, “I have to wear sunglasses all the time, because I get headaches and it’s really painful,” she says. “I have my two super heavy-duty pairs of glasses over there, polarized Ray-Bans, and I wear hats all the time.” Emily says that when she is in class she situates herself where “there’s no direct source of light coming into my eyes.”

Emily’s teachers, as well as her mother Laurie, are the perfect witnesses to describe the changes in Emily’s academic performance.

EMOTIONAL EFFECTS

Emily’s academic struggles have taken a toll on her emotionally. She experiences increasingly high levels of anxiety when she reads because she knows how challenging this once easy task is for her now. “There’s a lot of anxiety connected to it because I know it’ll take me forever, and so, I start to worry about it.” That anxiety often causes her to put off her homework assignments until the last minute, which puts even more pressure on her to perform when they come due. Emily remembers she experienced far less anxiety over her studies before her injury, during her freshman and sophomore years of high school. “I would never have described myself as an anxious person before,” she says. “It’s a really terrible feeling […] this certain kind of anxiety that’s like total helplessness. I feel like I don’t know what to do.  I feel like you can’t fix it.”

High anxiety isn’t the only thing that leaves Emily in a state of helplessness. “There’s a lot of emotional stress connected to the experience of trying to get through my homework or my schoolwork. The first two years of high school, I wouldn’t say I stressed. I definitely tried really hard, but the second two years were more ‘doggy paddling’ and trying to stay afloat as opposed to knowing my goal and getting there.”

Even when Emily received help from her mother, the anxiety remained. “It felt like it was taking longer because someone else was reading it,” she says. She admits that being dependent on others to help her with reading was a significant cause of the anxiety.

THERAPY THROUGH  DANCE

Sheryl remembers that Emily became much more involved in dance after the accident. “She shifted her interests, because she could no longer be part of some of those stronger reading heavy intellectual classes, like philosophy and cultural history. She moved all this more towards the arts,” she says. According to Emily, after the accident “I was in the studio six days a week.” During a very difficult time in her life, Emily says dance “was something that I could do really well.” Emily had become accustomed to achieving her goals, and the dance studio was a place where she could continue to do so without worrying about headaches or anxiety. “I had always been really good at school. I had always been top 10%, and then, suddenly, I couldn’t read, and I couldn’t do things as quickly, and stuff wasn’t making sense, and I couldn’t take math. I wanted something that I was good at and progressed at.” For Emily, dance serves as “a huge part of my, self-recovery process.” According to Sheryl, Emily “really shifted her awareness because she was able to still find freedom in that [dance] and not frustration, whereas when she read, she was really, really frustrated.” Sheryl says that for Emily, “dancing was definitely therapy in many ways.”

Sherly ( ) is the perfect person to talk about Emily’s shift in interests from academics to the arts.

A BRIGHT FUTURE

Emily is currently settling into her life in New York City. “I love the city more than I ever thought I would,” she says. Emily feels certain she will remain at (                              ) until she graduates, which she expects to do on time in 2016.

While most young adults her age are looking forward to a summer away from their studies, Emily is applying for an internship at the Jacob’s Pillow Dance Festival in the Berkshires. “Pretty much all of the biggest dance companies go through there,” she says. “There’s two different internships that I’m applying for. One is in photography and one is videography at one of the most prestigious dance festivals. I would be photography or a videography intern, taking pictures or making films about all of the dancers that come through this amazing, amazing place.”

Using her free time to apply for an internship is typical of Emily’s work ethic, and she’s relying on it more than ever as she continues to recover from her injuries. Emily says that after all she’s been through, “I have a more heightened sense of awareness of myself, and the way that my brain is working, and what I’m doing.” Her mother Laurie sums up her situation perfectly, when she explains that “from the outside, nobody would look at her and think that she had a problem in the world. She’s smart, she’s pretty and she’s talented in so many ways. She’s articulate. She’s vivacious, but inside she knows that she’s making decisions. She can’t do an awful lot of things that would have still been options to her. She was always interested in the arts. Darn good thing because that’s what she can do […] It’s not like this accident has made it that she can’t have a perfectly good life, but it has definitely closed a lot of doors that I think she would have considered.”

Witness Index

(        ), Chris:                Former teacher, mentor, and boss

Address: (     )                   Phone:  Home (     ), Work (     ), Cell (     )    Email: (     )

(       ), Sheryl:              Former teacher and mentor

Address: (     )                   Phone:  Home (     ), Work (     ), Cell (     )    Email: (     )

(       ), Ken:                  Former teacher

Address: (     )                   Phone:  Home (     ), Work (     ), Cell (     )    Email: (     )

(       ) Debra:                Former teacher and mentor

Address: (     )                  Phone:  Home (     ), Work (     ), Cell (     )     Email: (     )

(     ) Laurie Anne:      Mother

Address: (     )                Phone:  Home (     ), Work (     ), Cell (     )       Email: (     )

By Don Keenan

Not as frequently as in the past we still see people guessing at the code.  On the list serves it takes on a frenzied pace that has 15 to 20 people guessing in rapid fire.  If it wasn’t heart-attack serious the phenomenon of guessing would be funny.

You’ve heard me say from the very beginning DO NOT GUESS ON THE CODES because you have a far greater than 50 percent chance that your guess will send you  careening over the cliff to certain case death.

EARLY DAYS

Please recall the story of the numbnuts that said the code for tractor/trailer driver was “dangerous bully on the highway.”  This was spoken by a fool who had just read the Reptile^© book, and that was it, and he was giving a non-authorized presentation about the Reptile^© at a national trial lawyer organization seminar before David and I shut it down by threatening injunctions for violation of copyright, patent and trademark.  Contrary to the code espoused by the numbnuts, we had done well over a dozen focus groups dealing with tractor/trailer codes and cases and found the exact opposite in the code.  A truck driver was looked upon as a safe professional driver.  The justifications during our research from Bubba was that they have a specialized license to drive, they’re under tremendous scrutiny from the federal and state government to be safe, if driving is their livelihood, it puts food on their table. Why would they take a risk with their safety let alone the safety of others?

THE REPTILE^© REASON

We learn through the evolution that to try a case off code is often more powerful than if the defendant is on code.  If Bubba expects and believes he has the right to be on the highway with safe professional tractor/trailer drivers then Lord help the tractor/trailer driver that does not conform to this code.  Bubba cannot live in a world with even one off-code tractor/trailer driver.  Remember the Reptile^© books admonition: the Reptile^© is often not smart.

Now my fellow Woodpeckers, imagine trying the case where you thought the code for truck driver was “dangerous bully on the highway” and swinging your dead cat castigating every single driver on the road and how the entire industry must be punished.  That dog wouldn’t hunt.  In fact you would have Bubba pull him back taking the side of the tractor/trailer driver, his friend.

THE PROCESS

Now let’s give you a peek at how codes were discovered.  As with tractor/trailer drivers it began with a series of attitude surveys which were located by our researchers.  It seems that the insurance industry in their underwriting process wanted to find out the attitudes of normal Americans towards truck drivers.  In so doing they posed a simple question on a questionnaire sent to many hundreds of people.  The simple question was;

“If you learn there has been a catastrophic collision on the Interstate and it involves a tractor/trailer and a single motorist, who do you assume is at fault?”

Now if you ask that survey of trial lawyers you’d probably get 90 percent of the people blaming the tractor/trailer driver, however, not so with Bubba.  The opinion is flipped and more than 85 percent of the time, Bubba feels it’s the single motorist who is responsible for the catastrophic wreck.

Now for those of you new to the Reptile^©, that might come as a surprise, however, to those Reptile^© disciples, it’s a perfectly consistent Reptilian^© response.  Bubba would never get on the highway where he knew tractor/trailer trucks frequented if he felt that 90 percent of the time they’re the ones that cause the catastrophic wreck.  To do so would be suicide at worst and simply Russian roulette at best.  Bubba can’t live in that type of dangerous world so he will create a Reptilian^© façade that will protect him so that every time he goes on the Interstate he feels totally at ease and protected.

We see this Reptilian^© façade created by Bubba in many, many, many situations all arising to the level of a code.  One of the 10,000 reasons why you can’t guess a code: You don’t live in Bubba’s world. (See blog “Bubba the Juror’s World and Our World”)

Once we were seized with the attitudinal information about truck drivers, we then proceeded through the seven steps of getting a code, none of which is anything close to what you’re taught at the Reptile^© focus group seminar nor at the Keenan Ball College, however, it’s the template that the other professions such as marketing, advertising, journalism, divinity, politics all use, similar but not the same.

The first step is taken right out of the page of Freud some 200 years ago – quick word association.  You say the word truck driver and don’t give Bubba any time to think but simply to utter the first thing that comes to his mind.  Truck driver of course would be buried in a sea of other words also asked rapid fire.

CODE IS EMOTIONAL

Understand that at the end of the day the code is not logical, you know full well the Reptile^© is not logical, but the code is pure emotion.  Thus, in the seven‑part template to get the code, we employ every device possible to remove from Bubba the opportunity to logically answer the question or do the task.  Instead, we go through a series of steps that will slowly remove logic from the response matrix.

Many of you know that back in 2004, 2005, when we were crisscrossing the country trying to prove the Reptile^© wrong, we employed what we thought was the template used by Rapaille, the one that he set forth in several of his writings.  Talk about our bus going over the cliff, we got nowhere for what appeared to be a long period of time until we had the good sense of locating former employees of Rapaille to find out how he really did it.  Both of them (who had worked at different times for Rapaille) recounted that Rapaille had no desire to lay out his template so that his competitors could simply duplicate and either kill his business or drastically reduce it.  So Rapaille’s blueprint was not correct, that’s as kind as I can say it.

But what we did find from his former employees is that his true template was, as I said, above a deliberate intent to remove logic and structured decision-making from Bubba’s response.  Instead the target was the emotional imprint.

QUICK WORD ASSOCIATIONS

We also learned that Rapaille always incorporated a traditional focus group (the ones we do every day) as the first step in the process.  But then he told his assistants to ignore any of the findings.  So we asked why do it?  Rapaille explained that every person that they recruit for research expects that there’s going to be a focus group so why not give it to them.  Because we tried to get the code in a day’s session, rarely did we incorporate the initial focus group, however, maybe we should, because our focus group people were always a bit confused with what we were doing beginning with the quick word association.

Hopefully you can see that the quick word association provides no time for Bubba to think.  The utterance is pure instinct without thought i.e. cat, dog, black, white, east, west.

MAN FROM MARS

The next phase was usually what we call “the man from Mars.” That is when one of us would tell the folk that we were from Mars just landed on Earth and we were here to get information but we didn’t know a thing about how things work on Earth.  Thereafter, we would ask questions such as “What is a hospital?”  “Why is there a need for a hospital?” “Who works at a hospital?” “What do they do?”  The man from Mars removed the logical decision-making and instead the focus group people responded by imprints, emotion, what they felt.  Between the word association and man from Mars, we are now starting to move well away from the cortex frontal lobe logical thinking and more into emotion the imprint.

THE VISUAL CHALLENGE

The next level, and the last one I’ll talk about, is the collage and this one removed any verbal exchange description from the process.  We brought people into a big room, sat them on the floor, told them to take off their shoes, belts, et cetera and get comfortable.  Then we stacked up magazines amongst the folk, gave them rounded scissors and horse paste, like we had in grade school, and construction paper.  Everybody then was back in the second, third grade.  In fact, most of the time during this step we had milk and cookies served.  However, remember there’s no talking because at the beginning of the process we simply tell the participants we’re going to give you one or two words and then you’re going to go through the magazines and cut out any visual images which describe your interpretation of the word and create a collage pasted on the construction paper.  Now you may think this is a bizarre even a non‑starter, however, when you have the term tractor/trailer driver and you give folk an hour or more to do their collage and you see the results of their collage, you’ll understand the power of the emotional imprint.

When we had the participants complete their collage and pass them up to us, we would then move on to the next step, but then later after they were gone we would take the 60 or 80 collages, pass them amongst our team and see if it made any sense.  Well, my fellow Woodpeckers if 99 percent of the images are happy faces, starched denim shirts and even husbands and wives joined arm-in-arm to represent a tractor/trailer driver, you know instantly that that code is not quite “dangerous bully on the highway.”  In fact, several times we used the collage with tractor/trailer drivers.  We had jurors cut out images of Santa Claus and put them on the collage.  I just couldn’t help myself.  I really had to know what the Santa Claus was all about and the focus group member looked at me like why don’t you understand that Santa Claus is in essence a tractor/trailer driver in the sky delivering presents to little children around the world.

AGE REGRESSION

I skipped over some of the steps.  They’re just too difficult to explain, so let me just give you the last and final step – age regression.  At the end of the day, we dim the lights, give everyone a little pillow, they lay on their back with distance between each other in the hotel, we actually play spa music, let it run for 10 or 15 minutes and then we begin the age regression.  We take them back to their childhood and then move forward to present time, getting them to visualize and re-experience the events that imprinted the code; whether it’s the code for justice, tractor/trailer driver, hospital, no matter what.  There are two factors important – the first childhood imprint and the last significant imprint.  That is true because the imprint can change.

The most frequent one is ethnic and racial prejudice.  Often as children we have no prejudice.  Kids are kids and we play with everybody.  In fact our fascination draws us to some kid different than us and it’s fun.  So the imprint we have when we’re young is not bad, but as we’ve seen over and over again, the later imprint, the significant event, is bad.  The Hispanic stole my job, the African-American arm-robbed my daughter, et cetera.  Now the most recent event can sure enough change the imprint.

NO WAY FOR YOU TO DISCOVER TRUE CODE

As I’ve said many, many, many, many times, the bad news is there is no possible way for you to get the code and as I said above. Again, if you guess at it, then your bus is halfway over the cliff already.  But the good news is we have well over 180 codes that all you have to do is ask and you’ll get it.

You are probably thinking, “Well if it takes a day or more to get the code, did it really take 180 days to get these 180 codes?”  No, after doing so many codes you get to know when you’re going to get into the repeating zone and you simply do not need to repeat what you’ve done many times. For example, the known phenomenon of code façade.  If you’re not looking for it you might not see that Bubba’s emotional imprint is simply a way to protect himself.

Now along the way, I have to tell you, that not all of our code attempts have been successful.  A very common obstetrical medical negligence case is the shoulder dystocia case where the allegation is that the physician pulled too hard on the baby’s head during delivery and caused injury to the neck and shoulder, often a lifetime disability.  Because there’s so many of these cases, we set out to do the code.  After two full days of trying to get the code we had not succeeded, and that was after Rick Friedman joined our team bringing a fresh eye towards our techniques and methods.  So we let it alone and decided to take another stab at it 6 months later and failed again.  There were just too many variables to make any common core sufficient to get an imprint/code.

OFTEN DIFFICULT TO INTERPRET

Finally, I want to say that examining all of the results we get from the seven steps is not easy.  There have been several times when I have consulted my psychiatrist with “What does this mean?”  However, before we go, I want to tell you about one of our earliest but most difficult codes to secure and that is the code for justice.  We sat around the night before and we’re certain that it would be something along the lines of “making a wrong right,” “holding someone responsible or accountable.”  Well see that’s the problem with pre‑destined thinking, that’s what you’re looking for and you don’t need to be looking for anything during a traditional focus group or a Reptile^© code focus group.  You’ve simply got to keep an open mind to whatever they’re saying and not have to divorce any pre‑destined thought.

So running through the word association, the man from Mars, the collage and the age regression, we had anything but what we were looking for.  It appeared that every person had, at some point in their life, an experience with something bad happening and then there was an attempt to resolve it which fell painfully short.  We had stories of the bicycle being stolen when the person was young but never recovered, the classmate accused you of lying and the teacher did not resolve it, the other kids were cheating, you were not and they got ahead and then, the really big one that I guess shouldn’t surprise us, is the story after story about my best friend got killed by a drunk driver and they got probation, or my father was killed by a drunk driver and they served 30 days.  So after a whole day, we got nothing but negative outcomes so we decided to run it again a month or so later in a different venue to see if we got anything different.  After a full day we got the same outcome, but we listened to it a little closer, and then it was revealed to us through an interpretation that the real imprint code for justice was closure; the matter was at an end.  Now, initially we were disappointed, until David actually found the silver lining and said we need to imbed closure into our cases and let the jury know about the lack of closure in the case and the extreme power of closure.

So if any of you have seen my closing argument DVD Vignettes, you know full well that I’ve got five or six of them that talk about how to use closure in closing argument and, believe me when I say, it’s powerful.  It also has the potential of taking you completely off code when you stand behind the defendant in closing argument and say to the jury that “Yes your client needs closure, the community needs closure, but this defendant also needs closure.”  That’s not something an on-code lawyer would do, but having done it in virtually every case, it is very powerful.

I hope this blog doesn’t start a stampede of everyone trying to get their own codes, believe me, it’s a non‑starter.  The purpose of the above was just to tell you how damn difficult it is to get the code and how dangerous it is to guess about it.

WHY NOT DISTRIBUTE ALL CODES?

Now before you ask that all the 180 codes get sent to you, let me tell you why we won’t send any except the one you ask for.  Over the 10 years we’ve been doing codes, the code has changed in several instances.  The code for doctor in the beginning was “hero,” as stated by Rapaille and his research, but because of the concentration of HMO care, that code has changed, the code for law enforcement has changed in many venues in light of Ferguson and other events.

Bottom line: Codes are a slippery slope, and don’t attempt them yourself, and understand that the code itself gets you nowhere unless you know the elements within the code.

AFTER THOUGHT

Now the concept of codes has no history in the law.  I’m sure you didn’t take a course in law school on codes, and in fact, with the Reptile^©, the codes are frequently discussed in the seminars and college courses, but there is no course in codes.  (We are exploring in 2016 a separate college course on codes.)  So I expected a lot of misfiring regarding codes, and often it occurs when a lawyer will call me up and say, “Papa Don, I need the code for X.”  Then I give it to him and without waiting for me to say what the elements of the code are, their excitement causes them to say goodbye and off they go.  This causes me to go to my cigar room and ponder just what the hell are they going to do with just the code.  If you just know the code for tractor/trailer driver without knowing what elements make that code, true as I described above, then you’re not going to be able to use the code.  In fact, the elements of the code are often more important than the code itself.

By: MICHAEL PETERSON, KEENAN LAW FIRM

Note from Papa Don:

I first met Matt at the Costa Rica Advanced Reptile­­^© Seminar.  I was settled down in the room I always get which has a deck overlooking the water that is perfect for stogies.  The deck connected to another room that serendipitously was Matt’s and his lovely wife.  So I got to spend some private time with him and noted that he is not your aggressive plaintiff’s lawyer, but a soft soul with nice charisma.  Matt worked hard on the Reptile^© learning curve such that he was made one of the co-moderators on the important flora list serve, where he’s done a great job.

Now for Matt’s autopsy:

This month’s Reptile^© Superstar is Matt Powell. Matt Powell received his Bachelor’s degree from the University of Central Florida and his Juris Doctorate from Florida State College of Law. Matt practiced insurance defense for six months, and then made the decision to pursue a career in plaintiff’s personal injury. Matt’s law firm, Powell & Espat, specializes in MVC, negligent security, med mal, and product liability cases.

Outside of the law, Matt is passionate about his State’s National Historic Landmarks. In fact, his law firm is located in one of Florida’s National Historic Landmark buildings. Matt routinely raises money every year in an effort to help renovate the historic landmarks in the community. Matt is also starting a new charitable organization called, “For The Kids.” This organization will seek to help raise money to provide kids with cars seats, bike helmets, and safety awareness material.

Introduction to Reptile^©:

Matt learned about the Reptile^©, three years ago at an Advanced Reptile^© seminar in Costa Rica, where he met Don and David, who inspired him to transform his practice. Matt can proudly boast that every lawyer and paralegal in his firm has attended a Reptile^© seminar.

Matt believes that the Reptile^© has provided him with a solid framework that he can use in every case. His favorite Reptile^© tool is spreading the tentacles of danger. According to Matt, the STD is subtle, but effective. It allows you to position your case in the proper context, so that the jury can make an honest determination of the facts.

Facts of the Case:                                                       

Matt received this case from another attorney about 4 months before trial. His client was a resident of Camden Bay Point Apartments. Camden is one of the largest companies in the US that builds, manages, and rents out apartments. Matt’s client, Angel, was 10 years old at the time. While he and his friend were walking back from the lake, they noticed that the door to the gym was slightly open. The apartment complex considered the gym to be an “Adults Only” area. The manager of the apartment complex provided adult residents with an amenity key for them to use to open the gym door. That day the gym door was propped open with a cement bucket.

Matt’s client and his friend went inside the gym and began goofing around. They found a ball about the size of a soccer ball, and traveled over to a treadmill. They turned the treadmill on, threw the ball onto the belt, and let it bounce back to them. They continued this exercise until they got the treadmill going full speed. Unfortunately, they dropped the ball and the treadmill sucked the ball underneath. When Angel reached down to get the ball and the force of the treadmill yanks his hand underneath treadmill.

Matt’s client broke both his ulna and radius bones in his right arm, and suffered from second degree burns. The treadmill pulled his arm until his ear hit the edge of the moving platform. At this point, his friend stops the treadmill by pulling on the emergency lanyard. The child’s Mother took her son to the hospital, where he remained for 10 days. His medical bills amounted to 25K. Matt chose to waive the medical bills. Matt’s client had ADHD, and his school had already held him back a grade. Matt knew that the only jobs that would be available to him would be those jobs that focus on physical labor.

In preparation for trial, Matt hired a vocational expert to assess his client’s loss of earning capacity. The expert found the scaring would cause a loss of earning capacity of 10% to 20%, based upon his client’s inability to work outside in the sun or in hot environments. Furthermore, the expert suggested that Matt’s client would not likely progress beyond a high school diploma.

The defense classified the case as an attractive nuisance case. They argued that Matt’s client was old enough to know not to touch the treadmill. It is important to note that an attractive nuisance case would eliminate the comparative negligence standard and make the case a pure contributory negligence case. Matt chose to argue for attractive nuisance. Before trial, the defense offered $150,000 with a $250,000 demand. The plaintiff rejected the defenses’ offer.

Pre Trial Reptile^©:

Despite receiving the case late, Matt understood the importance of witness prep. Matt used witness prep to focus on the Major Truths of the client’s mother. The mother felt guilty that she was not able to monitor her child during this incident. Matt wanted to prepare her for the defense’s questions that would challenge her ability to supervise her child. Her first major truth was that she picked this apartment, because she believed the managers at the apartment were responsible.

The apartment managers assured her that they would keep the gym door locked, and it would only become accessible if an individual possessed an amenity key. She had to come to terms with the fact that the apartment complex betrayed her, because they chose not to follow their own policy and procedures. Secondly, she had to come to grips with the fact that there was no way that she could monitor her son all the time. These Major Truths were crucial to her confidence and effectiveness on the stand.

Reptiling^© the case:

Matt began his voir dire with passion questions. Matt enjoys using passion questions to earn the jury’s trust. Next, he focused on the jury’s perceptions of the curiosity of kids. He found that most jurors believe that kids will be kids, and thus it is an adult’s job to ensure that the kid cannot place himself in danger. Then Matt addressed his client’s second-degree burns. He asked the venire a WWDYL question that challenged the jury to consider whether they felt comfortable giving money to take care of his client’s scar, despite the fact that their verdict could not remove the scarring from the child’s arm. Matt found this to be an effective rat-killing question that narrowed down the venire.

Matt discovered through voir dire how relatable this case would be to this jury. Every juror on the jury pool, either lived in, or had lived in an apartment. This made their Reptile^© more susceptible to Matt’s opening. Matt used his opening to inform the jury of the story, to explain who he was suing and why, to undermine the defenses, explain the harms and losses, and to implant the code for apartment complex.

Matt developed four safety rules for his case:

1. Apartment complexes that rent to families know that children are curious and want to explore everything and the complex must be mindful of children’s curiosity and desire to play in areas that they should not play in, so that kids do not get hurt.

2. Apartment management of complexes that offer amenities that are dangerous and not suitable for children must keep children away from these dangerous things.

3. When an apartment complex performs repairs, maintenance, and remodeling in their complex, they must keep the doors locked to the gym areas when they are away from the job site, even when they leave the area for just a few minutes.

4. Managers of Apartment Complexes must communicate with their employees to make sure that everyone knows how important it is to keep children out of dangerous common areas.

This case was all about the system failure and betrayal. Matt called the plaintiff’s mother first, to establish the story and explain why she felt betrayed. The client’s mother was very comfortable on the stand, and constantly referred to her Major Truths. On the stand, she came across as a very good mother who was very responsible. She explained that she wishes she could have protected her son, but she understood that she could not be with her son at all times.

Matt understood that the jury expected their landlords to take care of their safety in all areas on their premises. They also expect that if an apartment complex cannot prevent the harm, then they should at least issue warnings through signage or otherwise. The mother’s testimony flipped their expectations on its head, because it revealed that not only did the apartment complex fail to prevent, but it also encouraged harmful behavior by allowing her child access to a dangerous and unsupervised environment. Matt’s ability to relate the mother’s testimony to the expectations of the jury, added power to the betrayal and took the apartment complex off code.

She also testified to the client’s damages. She mentioned how her son winces and squirms whenever she had to change his bandages. She went into detail about the pain he feels whenever he is lifting his arm or taking showers. She discussed how her son would describe the pain as burning matches. Moreover, she feared the injury to his arm would lead to humiliation and social awkwardness around other children during the summer months. Matt found the more she stuck to her Major Truths the more off code she became to the jury.

Matt called his client next. Matt’s client presented himself as honest, confident, and self-assured. His honesty was certainly present during cross-examination. During cross, the defense got him to admit that this was not the first time that he had seen a treadmill. The client explained that when he was younger, he would come across treadmills, and be utterly afraid of them.

Furthermore, he explained how careful he was when he reached down to get the ball from underneath the treadmill. It was the defense’s plan to show that Matt’s client knew the treadmill was dangerous. They wanted to show that the treadmill did not serve as an attractive nuisance to Matt’s client, because he was able to appreciate the level of harm presented by the treadmill. Matt countered this argument by suggesting that if he truly appreciated the danger, then he would have turned off the treadmill, rather than attempt to retrieve a ball from under an active treadmill.

Matt placed his client’s friend on the stand, to explain why the gym was open on the day of the injury. Matt took a photo of the gym after the incident. The photo showed that there was construction going on around the area of the gym. Matt showed the photo to his client’s friend. The friend testified that he had never seen the photo; however, he confirmed that the area around the gym looked the same on the day in question.

His testimony provided credibility as to why the gym door was propped open with a five-gallon cement bucket. Matt used the friend’s testimony during his closing to show how the apartment complex was off code. Matt understood that construction around the gym was primarily for the tenant’s benefit; however, all benefit is lost when safety is the cost. He argued that a landlord must complete their construction with safety in mind. The second you ignore your policies is the moment you are disregarding the safety your tenants. Matt knew he was on the right track as he could see the jury nodding their heads along with his argument.

Matt cross-examined the apartment’s maintenance supervisor next. The supervisor admitted the apartment complex was doing construction. Matt asked him whether there were cheap alternatives to prevent people from opening the gym doors. The supervisor could not think of any, so Matt suggested the use of a pool alarm. A simple $25 option that would sound an alarm whenever someone left the gym door open. The supervisor had no disagreements with Matt’s suggestion. Furthermore, the supervisor agreed that they failed to uphold their policy, which held that the apartment complex would only allow access to the gym to adult residents who possessed an amenity key.

The manager of the apartment could not make it to trial, so Matt played a 90-minute video of her deposition. During the deposition, Matt’s focus was to have her reveal the system failure and to admit that she had betrayed his client. The manager evaded every question Matt asked her regarding the safety rules. Matt asked her about the apartment’s policy and procedures, to which the manager agreed that the gym door was to remain locked for all those who did not possess an amenity key. After establishing the negligent act, Matt went to the heart of the system failure by questioning the safety mechanism she had in place to shield children from harm when a situation like this arises. Matt asked her whether she instructed her maintenance workers to look out and report about whether children were getting in the gym. She said, “No.”

He asked whether she ever put out a bulletin to inform the residents that they would be leaving the gym door open, so that parents could take it upon themselves to ensure that their children did not enter the gym. She said “No.” He asked whether she trained the maintenance workers on gym safety. She said “No.” Lastly, Matt asked whether she supervised the maintenance workers to ensure that they followed the policies and the procedures of the apartment complex. Again, the apartment manager said, “No.” At this point, the apartment complex was completely off code, and the jury was upset. The jury could not believe that an apartment complex could drop the ball in so many areas of safety.

Lastly, Matt called his vocational expert, economist, and medical experts to the stand. Matt knew that future earnings would be a hard element to prove. The vocational expert testified to the fact that his client would no longer be able to work outside or in a hot environment. Coupling the limitations of his work condition with the limitations of his education, he argued that Matt’s client would have a bleak future in the labor force. Matt’s next witness was his medical expert, the pediatric burn doctor. The jury respected him, because he approached his testimony as a teacher, by simplifying big words and making analogies to help the jury understand the severity of his client’s injuries.

The defense called their CME orthopedic surgeon who testified that the child had no loss of function to his shoulder, elbow, wrist, or hand, and therefore he was fine and would have no future complications in life from the broken bones. Matt’s cross-examination of the defense witness took a lot of time because Matt displayed to the jury several x-rays of his client’s broken bones. In addition, he had the defense witness show the jury where each of the fractures were. Then Matt showed the post surgery x-rays that showed the two 14 inch nails inserted in the bones. Matt had the defense expert walk the jury through the surgery and explain step-by-step what was done to the child’s arm in surgery.

The defense’s expert went into detail about how the fracture tore the client’s muscle tissue in his arm. Then the surgeon explained how they insert nails into his bones, cutting his skin, drilling holes into his bones, and then hammering each nail through the bone using a hammer. At this point, the jury’s eyes were as big as silver dollars. Matt knew that he successfully swift-boated the witness when everyone in the courtroom was wondering which party called the ortho expert to the stand. According to Matt, every attorney should avoid cross-examining the defense if you can ingratiate him to your side.

Closing:

Matt contributes most of his approach during closing to Don’s blog article on “System” (will appear in the upcoming Keenan Edge 3). According to Matt, as he was heading to the courtroom for closing arguments, he decided to log on to Don’s Friday blog, and it was about system failures. Don’s article proved to be the perfect message at the perfect time. During his closing, Matt reviewed the manger and employee’s testimony, which highlighted how Camden failed to train, supervise, and warn tenants about the gym. Moreover, they had no internal way of communicating to each other when there was a problem. Matt also used the system failure to spread the tentacles of danger.

He brought the jury back to the gym, and had the jury think about the myriad of other dangerous equipment that could have caused the children harm. Matt reminded the jury that his client is a child. He referred to them as the most vulnerable people in our society. Matt revisited the responses he received in voir dire; by reminding the jury, that our expectation is that kids will be kids. Matt argued that it is imperative for families to be able to trust corporations to follow their policies, which will keep their families and themselves safe.

In this case, the corporation betrayed their trust and children were injured. Matt also addressed the issue of who should take the risk. He asked rhetorically, “Should the person who hurts someone take the risk of future medicals or does the person who gets hurt have to be burdened with that risk?” Matt had already addressed this issue in voir dire, so in closing, he was simply reminding them of the commitments they made at the beginning of trial.

Verdict:

The jury returned with a verdict for the plaintiff for $2,686,370.00. According to Matt, he learned to trust and fully embrace the Reptile^©. Matt realizes that there is never a perfect trial, but the Reptile^© makes them better. At the end of the trial, the bailiff approached Matt and said that he won the case because he picked a good jury. Matt attributes his success in this case to his voir dire, his safety rules, taking the apartment complex off code, illustrating the betrayal of his client, and outlining the system failure. Matt left this trial with not only a win, but also stronger belief in the power of the Reptile^©.

Due to a clerical error, last week’s blog was posted with portions missing. Out of an abundance of caution we are rerunning this article to make sure everyone gets the correct blog.

By Don Keenan

Several years ago, we went out to discover the code for apartment complexes and got a result that was not expected.  So let me walk you through the revelations; not teach you how to get the code, because, hopefully, you know that not impossible.  The purpose is to show, even if you are given the code, you can misuse the code.

If you do a narrative focus group on apartment complexes, you’re going to find that Bubba clearly believes that safety and security depends on how much rent you pay.  And they’re adamant about it.

So if you have an apartment complex rape, armed robbery, fire, carbon monoxide poisoning, etc., and you simply stopped at “it depends on what you pay for rent” then you’ve given up two‑thirds of your case.

We went with quick word association regarding what they thought when they heard the word “apartment” and not once did we hear “well, it depends on how much you pay for the apartment.” Instead, the responses were “a place you can be safe,” “your castle,” “your personal safe place.”

This sounds a bit like strict liability.  If you’re in your apartment, you have a right to be safe, notwithstanding how much you pay for it.  But how does that square with others’ immediate logical response and of safety and security is dependent on how much you pay for your apartment?

We went back and looked at the economic demographics of the first focus group and found that they were, across the board, just as we like to see them – professional, small business owner, college grad, housewife, dropout, unemployed – Noah’s ark.  At the next focus group, we asked, “In your lifetime, on a scale of 1 to 10, with 10 being absolutely safe and secure and 1 being you are afraid to go to sleep at night, tell us on the worst apartment you lived in and the best apartment you lived in.”  We got those results in less than 5 minutes and they clearly told us that roughly everyone was in the 3 to 7 category.  Nobody was a 10.  Nobody was a 1. While everyone was very different, their experiences with apartments were the same.

Now when we were exploring the apartment complex code, we were just getting into doing research into what effect “a right” would have to do with attitudes.  In other words, if a person feels they have a right to a competent doctor, does the word “right” mean it’s stronger and cannot be taken away?  Well this was one of many that convinced me that if something rises to the level of “a right” then, sure enough, it cannot be taken away.

I’ll write later on this “right” concept, but not now.

So during the search for the code of apartment complex, I asked a which way do you lean question;

“Some people believe that if you rent an apartment you have a right to be safe and free from harm no matter what you pay for the apartment.  On the other hand some people believe that you do not have a right to a safe and secure apartment free from harm, that it is a matter of how much you pay. Which way do you lean?”

I was absolutely shocked with the first focus group where nobody leaned right.  Everyone believed that it was a matter of “right” to be free from harm.  So I drilled down as hard as I could.  Does this include a government housing project? Does this include a shithole? No matter how deep I went, the “right” trumps the poor conditions every time, if it’s a “right” then nothing can take it away.  So I asked definitively, “So if it’s a government project that’s a shithole, the apartment dwellers have, at minimum, a right to be safe from harm.”  And the answer was a resounding yes.

Now as I’ve written many times, simply the code of “a place to be safe and secure” doesn’t cut it unless you know the specific elements.

The elements of the code are dependent upon what harm occurred, i.e. intruder, fire, carbon monoxide, falling ceiling, etc.

I don’t have time to describe the elements of all of those scenarios, so let me just pick the intruder scenario and explain the elements of it.

• The apartment dweller has a right to locks that work.

• An apartment dweller has the right to have locks changed every time a new tenant rents the apartment.

• The apartment dweller has the right to windows that are secure.

• The apartment dweller has the right to adequate lighting around the apartment and in the parking lot area.

• The apartment dweller, if the area is known to be high crime, has the right to either video cameras or security guards.

So therefore, if you have a case involving an apartment-living client and an inadequate security case, that’s your code. If the apartment fails to beyond code, then you’re one step closer to a plaintiff’s verdict because that’s the expectation that Bubba has – their basic rights in their apartment and rent makes no difference when it comes to those rights.

Now some of you may be thinking, “Well, are there instances where the more you pay the more you should be able to get?”  You bet.  If you’re paying the luxury apartment rent, then Bubba believes there should be background checks of all tenants in the complex, Bubba believes that, under certain circumstances, you get a gate for all incoming/outgoing traffic.  So there are instances above the basic right that paying more would get you more.

Bottom line: Just because you have the code, you have nothing, unless you know each and every element of the code.

By David Hoey; Dean of Keenan Ball College

The REPTILE^© was first launched in 2009 after years of research and focus groups. We’ve all read the book, some of us more than once, and realized the book wasn’t enough. When the seminars started, they were always sold out. The REPTILE^© concepts, methods and ways took off like a wild fire. Thousands of us attended the seminars, watched the tapes, read the books, joined this blog, attended workshops, participated on the state list-serves­— and that still wasn’t enough. Why? Because we were hungry for more. Practicing REPTILE^© works! The REPTILE^©, always changing and evolving, put fun back into practicing law! Then came the Keenan Ball Trial College. The Keenan Ball Trial College took all the seminars, books, DVD’s, blogs, workshops and translated it into practical application.

 Why I’m the Dean

I practice in the state of Massachusetts. Here, we do not have attorney-conducted voir dire, nor do we have audio-video depositions, nor can we give the jury a number during opening or closing. I am a self-taught trial attorney who made many mistakes and often thought about doing something else.

Although, I had a winning trial record, I had nothing that was seven or eight figures. I also had my share of zeros after being taken advantage of by dirty Black Hats and incompetent judges. I got tired of it and decided it had to change. So, I turned to the REPTILE^© in February of 2010. Since then I tried my clients’ cases using REPTILE^© to a six figure, then seven figure, then eight figure verdicts. I proved that the REPTILE^© can work in a state with no voir dire. Since then, my practice and trial work has been 100% REPTILE^©.

I was an early adopter of the REPTILE^© and Don Keenan and I have been friends ever since. When he asked me if I would be the Dean of the Keenan Ball College, I was honored. It is also an honor to serve all of you, both as the Dean and, from time to time, as an instructor.

When you attend your first course, Course 1, I start with the Dean’s Convocation and Introduction by asking three questions:

1) Who are you?

2) Why are you here?

3) What is the Billboard for your case? In other words tell us about your case in one-two sentences.

I do this to prove three points: first, to show the value of listening to each other; second, to show the value of collaboration; and third, to remind you all that Bubba doesn’t give a shit about you or your client.

I then introduce the three-legged stool theory. Why teach through the method of the stools? A stool has three legs. If one of the legs is missing the stool falls. At the college we use the three (3) legged stool to show how the critical aspects of a case relate to and support each other. It simplifies REPTILE^© so you can apply it to your cases from case selection through post judgment.

The college will introduce you to concepts, law, and methods that you will not see, learn or read about any place else but at the College. The courses are taught by certified REPTILE^© Instructors. There are text books and materials for each course. The courses are not recorded or taped.

Here is a brief overview of the courses.  You can find more information at www.keenanballcollege.com.

• Course 1: You will leave with an individualized set of Rules for your case, a bumper sticker for the case, and part I of an opening statement that is trial-ready.
• Course 2: You will complete your opening statement.
• Course 3: You will learn how to conduct focus groups and how to interpret the focus group feedback. You will also get to present your case to a focus group.
• Course 4: You will cover using REPTILE^© concepts in voir dire.
• Course 5: You will cover depositions.
• Course 9: You will cover using REPTILE^© during mediation.
• Course 11: You will cover using REPTILE^© during trial.
• Course 12: You will cover damages.
• Courses 6, 7, and 8 which will include witness prep, codes, and closing are still under construction.

No matter which course you attend, you will be up on your feet presenting to others, so be prepared to be critiqued, applauded and criticized. Make sure you attend with thick skin and an open mind.

Barry Walker presenting his opening before his fellow students during Course 1 – Rules, in the Keenan Law Firm courtroom.

Instead of the instructors grading the students, the students grade the instructors. Thus far, our instructors have received very high marks, which tells you something about the quality of the instructors and the College.

Here is what some of the students had to say about the Keenan Ball College:

• Thank you for the time you took with me this week to help me better understand the Reptile^©
• You were a blessing to me and I am grateful for your generosity!
• David, Thank you for the wonderful learning experience this past week.  You are a great teacher!
• David, I want to personally thank you for a great – great – workshop.  This Reptile^© stuff is fantastic thanks to you, Don and the other guys who work hard to give so much.
• My juices flow each time I come back.  I want more and more.
• Thanks so much for all of your hard work at the Atlanta workshop. It was a great experience, and I got a lot out of it.
• It was such a pleasure meeting you this week.  It is obvious why you guys have become successful trial lawyers, and your willingness to take time out of your practices and lives to help others understand and implement these methods speaks volumes about the type of people you are.
• It was wonderful meeting everyone – I am envious of your mastery of the Reptile^© concepts and your application of them — however it just motivates me to get with it and work on becoming more proficient!  Thanks again to my instructors for all of their help as well as the input of the entire group.!
• Thanks for your time and mentoring! You are awesome. I am so lucky to have been grouped with you, my instructor, and all of my fellow group members. Y’all are incredible lawyers and human beings. I hope to see all of you again very soon. Please keep in touch!!!! Your input at the College was priceless!
• It was fantastic.   Looking forward to more, and to incorporating all this into our next trial. 
• Everyone, last week I attended Course 2 of the Reptile^© College, Openings and Order of Proof.  It was extremely valuable to sit around a conference table, read your opening, section by section, and get critiqued by someone chosen by Don Keenan to run the workshop.  Beyond that, the other participants got to make suggestions.  It resulted in changes to our Openings from adding a clause here and there to word choice to changing the whole thrust and theory of the presentation.  We were lucky in our timing also, because Don visited with us on both days and told us about some minor changes to the Opening template that he will be teaching going forward.  He explained their genesis and how they are designed to spread the tentacles more uniformly throughout the Opening.  He’s also suggested using “lighthouses phrases” in certain spots to get the jurors’ attention and help them remember the case bumper sticker.  These phrases have been tested and have been proven to work.  Finally, Don invited those of us who could attend to come back the day after the workshop ended to watch him and other lawyers at his firm conduct focus groups on different cases for four hours.  I got to watch several techniques for different types of focus groups, e..g, word association, watching a medical animation, case intake/rejection, juror attitudes regarding gross negligence, etc.  It was enlightening and everyone at the firm made the spectators feel welcome.

Graduating Class of 2015

More than 7,000+ trial lawyers from all 50 states have attended the Intro to REPTILE^© Welcome to the Revolution seminar.  Those trial lawyers have accumulated more than $6.5 billion dollars in verdicts and settlements.

The college is designed to take the REPTILE^© techniques to the next level.  Back in April-October of 2013, the idea of a National Trial School came about in Keenan’s head.  He called it the “evolution of the revolution.”  The REPTILE^© in application through collaboration.  So we invited 63 trial lawyers that have gone to more than one REPTILE^© seminar to Atlanta in November, 2013, along with ten instructors/faculty to test out Keenan’s idea of a national trial school.  It was an instant hit.  His and my emails were flooded with comments:  When’s the next college?  How do I get involved?  This is great!  Is it safe to use at trial?  Rave reviews.  They wanted more.

Don knew he had something new, different, unique; something unlike any other trial college, or training of trial lawyers out there in the country.  And in all probability, there won’t be anything like this again.  We are in the beginning stages of the Keenan Ball College.  It will only grow bigger, better, stronger and evolve and change as the climate and case law evolves and changes.

So it became official, as of March, 2014, the Keenan Ball College was launched.  We now have 12 courses, maybe more in the future, 30 certified, trained, supervised instructors.  We have course advisers for each course.  We have the guidance and oversight of the founders, David Ball and Don Keenan.  We have a logo that resembles a courthouse structure that cannot be knocked down.  We have a purpose.  We have a goal.  And we have our motto:  “Amat Victoria Curam,” which means “Victory favors those who take pains.”  In other words, victory takes preparation.

In 1 ½  years, the Keenan Ball College has seen over 400 students go through the courses.  By December, 2015, we will honor 7 more graduates, for a total of 14 graduates in 1 ½ years’ time.

It is no easy task.  It is serious work.  Your cases deserve it and you deserve it.  The College has already created life-long friendships and a family.

On May 30, 2015, at the REPTILE^© Masters in Atlanta, the Keenan Ball College graduated seven.  These seven are the first to graduate.

Don Keenan, Toby Cole (TX), Brian Crockett (TX), Adam Dougherty (FL), Jack Shrader (OK), David Bernstein (OK), Rick Plezia (GA), David Square (TX), David Hoey

To graduate from the Keenan Ball College requires completing 7 out of the 12 primary courses.  That represents 140 to 240 hours of study, collaboration, and practice.

The Keenan Ball College offers advanced towards a Masters and PhD as well.  Masters required nine course completed and a PhD required all of the course to be completed.

Bottom Line: The Keenan Ball College is a necessity for any REPTILE^© trial lawyer

The Simple Truth is:   Without the Keenan Ball College you will not evolve or advance as a trial attorney as the REPTILE© is constantly evolving and changing

If You Remember One Thing: The value of attending the Keenan Ball College is priceless!

NOTE FROM DEAN OF STUDENTS– DAVID HOEY: Since I initially wrote the blog post, the Commonwealth of Massachusetts recently, January 2015, passed legislation that now allows attorney – conducted voir dire and we can now give a number to the jury.  I have to give praise to the Keenan Ball college instructors who came to Massachusetts to teach the members of the Massachusetts Academy of Trial Attorneys attorney conducted voir dire:  Laurie Koeller – Oklahoma, Len Gabbay – Texas, and Ryan Skiver – Arizona.  All enjoyed a Red Sox game and lobster dinner.

Their teaching and dedication was some of the best I’ve ever seen.  I don’t know how to thank them enough. Here is what some of the Massachusetts’s attorneys had to say:

• With only the intro barely under my belt, the first day was daunting at best.  Laurie took special efforts to explain, show by example, show by student example and then critique in a manner that got the 11 points of voire dire across with great foundation and clarity in purpose, not only to voire dire, but as it relates to the trial of the case. Laurie was challenged by our wariness in stepping out of the box on the newly enacted attorney conducted voire dire.  I had a great time and learned a lot.  Always good to spend time with other trial attorneys.  Lenny was great!
• Huge thanks to David Hoey for moderating, Paul Dullea for pulling everything together, Laurie Koller and Len Gabbay for traveling here from Oklahoma and Texas to serve as instructors over the last two days and all of you who participated.  It was an exhausting couple of days but well worth every minute!  
• First, I like the use of stool and itemized lists.  I did enjoy and understand the theoretical lecture from Keenan in February, but I was unable to marshal that knowledge into a systematic procedure.  Second, I liked the format of the training. After a very brief lecture on each topic we watched an attorney practice then revise their approach after getting feedback from Laurie. No amount of lecture or hand-outs could have created a more visceral and memorable “DO/ DON’T DO” learning experience.
• Len was great, informative, receptive and effective in approach. Learned quite a bit concerning concise approaches and case law support.  Excited to return on day 2.

By Don Keenan

At the foundation of all of my mentoring and teaching, is the belief that it’s not enough just to instruct on how to use Reptile^©, but rather, full power doesn’t come without an understanding of what the Reptile^© is and why it works.

Harken back to your experience at the two day Welcome to the Revolution and you’ll recall that very little practical application of the Reptile^© was discussed by either David or I.  It was all about what the Reptile^© is and why it works.

Thank goodness we have discarded the early charlatans who saw the Reptile^© as just a bag of tricks or a one shot use during trial.  They dropped along the wayside, I believe, because once they realized that the Reptile^© encompassed everything about your case from selection of the case all the way through appeal, they just didn’t want to devote the time to learning something new.  So those folk are still off looking for that one trick pony that’s going to win their case.

Those of you who have hung in there and paid the tremendous learning curve price, now understand that the Reptile^© is a culture.  It has no real beginning and no end and, as soon as you realize that, the Reptile^© will begin to work for you.

WHY THE REPTILE^© WORKS

Do you really understand the depth of the Reptile^© and why it works?  There have been many a folk that have had that epiphany, that tipping point, that bolt of lightning on their road to Damascus and have reported that their understanding of the Reptile^© really did not take hold until they recognized the Reptile^© is simply about life.  The Reptile^© is not artificial nor does it only work in the courtroom.  It is at work during every aspect of our life.  David and I made the decision to put on the first Reptile^© seminar in May 2009.  Not having much direction on what we would do during those two days, and also recognizing that the book was late from the publisher, we had 120 people that hadn’t even read the book.

So we decided to meet for dinner the night before the first day to talk about the agenda and make sure we weren’t duplicating one another.  But a phenomenon occurred, which I could not explain.  Instead of talking about the subject matter of the seminar, we started to talk about our personal journey of reflection on what effect the Reptile^© had had in our lives.

David shared one story and then I shared one and then he did and then I did and it went back and forth all night.  That is the powerful revelations we both now understood about ourselves – “Why we do what we do, why we have the opinions and biases that we do.”  It was a pure Reptile^© self-examination.

THE REPTILE^© JOURNEY EVENTUALLY COMES TO YOUR DOORSTEP

I believe, that night, I unlocked a greater power of the Reptile^© than I ever had and that’s after nearly five years of slugging around the country to nine different states, 22 two day focus groups, a multitude of conferences, and reaching out to neuro science experts.

So each of you, at some point, needs to take that personal journey.  Look in the mirror and make the Reptile^© work for you.

By now, you are probably looking for the net to throw over me to take my butt off to a padded room. So it’s time to give you some personal examples, most of which I talked about during my dinner with David.

First, I had a habit of every single time I came back to Atlanta after being on the road, no matter what the time of day, I would have to go to my two story office building, unlock the door, turn on the lights, and go up to my office. Sometimes I would just go through the mail, often times I didn’t even turn on the computer, and then shortly thereafter, lock up the building and go home.  Now this was an obsession.  Even if I flew back into Atlanta at 1:00 or 2:00 in the morning, to me it was unconscionable to go home.  I had to go to the office.  The office staff had an inside joke that I must be doing something nefarious because the boss was here at 2:00 in the morning.  What was he doing?  Well, frankly, I don’t know what I was doing, because I could have just as easily gone home, gone to bed, come in the next morning and done the same thing I would have done at 2:00 or 3:00 in the morning.

So my first Reptile^© journey was to try to figure out why.  Well, we all know by now that earlier imprints during times when you’re young have a profound subconscious affect that holds the key to why we do what we do.  So I went back to my childhood.

Me and My Grandfather

I was raised by my grandfather, my father having died when I was a year and a half old. My wonderful grandfather was a first generation Irishman in a very small town.  He worked very hard to have his own business, a one man jewelry store for watch repair and sale of jewelry.  My grandfather worshiped that store.  The key went in the door every morning at 8:30 and he left at 5:00 every evening.  He never had a sick day. He’d polish all the furniture, and until I was 6 years old, cleaned the windows every day.  The window cleaning responsibility shifted to me at age 6.  Every Saturday morning he would get me out of bed and it would be my job to clean the store front windows and mop the floor. I had that job until I left for college.

My grandfather saw the store as the golden goose that provided a roof over our heads, the food on our table, and the clothes on our back. He nurtured and worshiped that little store.  We never spoke of it, but I saw that love, I shared that love, and it had a huge imprint on me.

So by now you know where I’m going.  You know perfectly well why I had to go to my office at 2:00 in the morning.  It was a form of respect for my practice, and yes, I guess it was a respect for the work ethic that my grandfather instilled in me.

I remember I was at my mountain cabin alone during a weekend when I made this Reptilian^© self-discovery that explained why I did what I did and it was so powerful that I cried.

The amazing part of this story is that the second I discovered why I did what I did, that realization released me, and from that day forward, there has not been one single time when I’ve gone to my office at night or in the early morning.  Knowledge freed me and I knew my grandfather would understand.

TWO OTHER REPTILE REVELATIONS

Now let me give you just two other revelations on my personal journey with the Reptile^© and then I’ll let you go to, hopefully, start your journey of self-discovery.  Let me begin with something I should have said earlier and, that is, the archetypologists, those who study why people do what they do, why they have the opinions they do, why they have the biases that they do, will tell you that the major truth is to find out why somebody does what they do, don’t ask them.  They don’t know.  When I make that statement at the Welcome to the Revolution seminar, I’m never surprised at the multitude of people who smile at that statement.  They smile because we all recognize that we are usually the last person to know.  Everyone knows that two of my passions are smoking cigars and drinking scotch whiskey.  I cannot imagine life without either.  For years I just thought I did it because I liked it.

Consider that one of the stories told to me about my childhood was the fact that when I was in a highchair sitting beside my grandfather, for fun, he would dip his finger in his scotch and put it on my lips only to have me smile and suck it in.  I don’t know whether it was those instances, but I sure enough identify with my grandfather a glass of scotch in his hand, neat of course.  That was a permanent fixture as was, and you probably guessed it, the cigar.  Frankly, I can’t remember a time when my grandfather didn’t have a cigar in his hand.

Now is that the sole reason why I drink and smoke?  Probably not.  But it certainly is, as we lawyers would say, “a contributing factor.”

I love to listen to a baseball game on the radio. Even if it’s on television, often I’ll be out on the deck smoking my stogie, drinking my scotch, not watching the TV, but listening to the ballgame.  Those are some of the most comforting times I can have.  So you figured it out that my grandfather and I would sit on the front porch and listen to the baseball game on the radio forever.  It was a time when I felt really close to him  even though we didn’t talk much during the ballgame.

My final story is one about my father who I never met.  But the one picture that I had in my bedroom growing up was of him in his dress Marine Corps blues.

 My Father

He was a gunnery sergeant and I heard many stories.  Tough as nails and extremely hard on his men because he served in wartime, and he didn’t want to lose any of them.  So here I am at 19, in college, at the height of the Vietnam War, when my college burned the ROTC center.  It was not fashionable to be anything military.  Yet, I enlisted in the Marine Corps platoon leaders class (PLC) which is the officer-training arm of the Marine Corps.  You see, I told myself I didn’t want to be an enlisted man.  I had to be an officer.  And you know I was never in favor of the Vietnam War, but figured that we were in it, and so I felt I had to do my duty even though my draft number was well into the safe range.  To establish that I was not for the war, each platoon was given the right to have their own emblem on their platoon flag. The other misfits that I served with and I chose the peace symbol to be on our Marine Corps platoon flag.  One of the stupidest things I ever participated in because we paid the price every day.

So if the war was unpopular, and I didn’t support it, and I was draft free, why did I enlist?

Well, you should know the answer by now.  But it took me almost 30 years to figure out the obvious.

So, my friends, I have revealed some very personal information with the hope that it would empower you to take the journey of your own self-awareness.  The Reptile^© will win for you in court.  It will make you the lawyer you always wanted to be.  But for me, it’s much more powerful.  The Reptile^© will reveal to you some innermost secrets that you’ve held your whole life, which will explain who you are and why you do what you do.  You may think you know now, but you don’t until you take the journey.

Once you’ve harnessed the power of the Reptile^© in the courtroom, harness that power with your life.

BOTTOM LINE: If you truly make the Reptile^© journey, eventually it comes to your doorstep and if you take the time, the “why’s” of your life and your purpose will be revealed. This journey will bring you the complete power of the Reptile^©.

by David Ball

OK, you’ve read the title. No need to read the rest of this article –

– unless you want to know why optimistic jurors are likely good for us and which Conservatives we don’t want.

If you’re still reading beyond the title, you’re a real Reptilian^©, not a dilettante. If you’re not still reading, then I guess I can say anything bad about you I want.

A year after we started the Reptile^© Revolution, I was speaking with an attorney who’d already tried Reptile^© in four or five trials. I asked how Reptile^© was working for him. He replied, “Great! Especially with Conservative jurors.”

I assumed he’d misspoken. “You mean Liberal,” I said.

“Conservative,” he said. “Liberals are OK but Conservatives give more money.” No way!

Yes, way.

My partner Artemis and I had spent many pre-Reptile^© years mastering the identification and removal of Conservative jurors. The idea of keeping Conservatives seemed blasphemous. So I asked other attorneys who’d been in trial with Reptile^© that first year. As time went on we continued asking, and we subjected the proposition to our own research: “Are Conservatives good for us?”

Lo and behold, we found that the answer is yes – sometimes. Maybe most of the time. But nowhere near all the time, because “Conservative” is too broad a generalization. At least one large category of Conservatives is useless or outright bad for the Reptile^©.

Here’s how it works.

Conservatives are more highly attuned to danger than are Liberals. That’s a great trait for Reptilian^© trials. And after all, it’s precisely because Conservatives worry so much about danger that makes them more susceptible than others to tort-“reform” attacks, which posited many possible dangers. Float a possible danger by Conservatives and they’re more likely than Liberals to believe and fear it. This is the basis for Fox News: Several ex-anchors report they’re trained to focus on possible dangers even when the dangers are vague and unsubstantiated, because the Conservative brain turns even unsubstantiated dangers to “real” dangers. This powerful Conservative trait accounts for Fox News’s passionate following. You can watch the process in action anytime on Fox News. (In something of the same way, the Liberal MSNBC portrays Conservative tactics as exaggeratedly fearsome and dangerous. But that doesn’t work as well as Fox’s approach because Liberals aren’t as highly attuned to danger. Hence the difference in viewership size.)

The Fox News method is the same as tort-“reform’s”: Without actual facts, tort-“reformers” convinced a swath of Americans that a plaintiff’s win in any kind of case means higher insurance rates for all (especially doctors), fewer jobs and an undermined economy, and God’s wrath at the individual juror and the community. Conservatives comprise the vast majority that bought into this, because they’re more highly attuned than others to potential, even questionable, danger. (Better to assume it’s real just in case, so “maybe dangerous” is all it takes.) This characteristic is inherent – Liberal and Conservative brains are actually different – and every tribe or society needs people with both kinds in order to survive. Conservatives, in a sense, are the essential helicopter moms of the community: always hovering to spot and thwart all possible, even questionably possible, dangers.

So when you spread the Tentacles of Danger (STD), guess who reacts the most? Conservatives, of course. Criticize them all you want, but most (not all, as you’ll see) can be great jurors for us.

In one famous experiment, participants were shown a photo of a beautiful face with a huge, horrible spider crawling down from the subject’s hair. Laser detectors tracked what each participant’s eyes looked at first. The results were strikingly clear: Liberals looked milliseconds first at the beautiful face, and only then moved their gaze over to the spider.  Conservatives riveted first solely on the spider – and tended to stay there or slowly drift to the beautiful face. (Maybe Liberals need to be more careful about spiders.) This was one of a number of research projects that show Conservatives’ brains to be inherently more sensitive to danger than are Liberals’.

Test yourself: In the pictures below, what do you see first and register most strongly? (“See first” is a matter of milliseconds, so you might not be able to tell the difference as well as the laser tracker.)

In every situation, the Conservative brain’s highly attuned sensitivity to possible danger is a powerful swing factor in our favor. So far so good.

But here’s the rub. Just because a demographic group – such as Conservatives – has a favorable swing factor, you cannot assume all Conservatives are good jurors. You must first find out if they share any factors that swing against you by cancelling out the benefit of their heightened danger-sensitivity?

In other words, are there people – Conservatives or anyone else – who your STDs will powerfully affect yet who still won’t be good jurors? And the answer is a big-time yes: Pessimists.

Pessimists register STDs as strongly, probably even more strongly, than do others. But pessimists believe little or nothing can be done about them. The heart of the Reptile^©method is to show jurors dangers (STDs) they can mitigate by means of a good verdict. But pessimist jurors believe nothing can be done about the STDs, so they believe a good verdict cannot mitigate the STDs. End of the Reptile^©. RIP.

Non-Conservative pessimists may or may not side with you, but your STDs won’t  motivate them to fight very hard for you.

But Conservative pessimists are a menace: They have extra reason to decide against you, because they’ve bought into tort-“reform’s” STDs that a good verdict for you is bad for the community: fewer jobs, higher insurance rates, fewer doctors, God’s wrath, and, for all I know, frogs and locusts. So they think a good verdict for you will exacerbate tort-“reform’s” dangers, even to the point of doom.

This is why using shortcut demographics (such as “Conservative”) in jury selection is dangerous.  (Please read or review my earlier blog, Demographics Revisited, posted November 28, 2014, to make sure you know how to use demographics properly and not just as a shortcut.)

So in jury selection, you have two necessities:

1.  Identify if they’re not Conservatives, they go in your “not-so-good” category. (But if they’re leaders, they go in your “pretty bad” category; a lot lower than “not-so-good.”

2.  Identify Conservatives:

• Conservatives who are not pessimists go in your “probably good”
• Conservatives who are pessimists go in your “potential monster”
• Conservative pessimists who are potential leaders go in your “actual big-time never- seat”

If you’ve kept up with Reptile^©, you know something about how to identify Conservatives. I’ll cover more in a future blog, along with how to spot pessimists. For identifying leaders, review pps. 304-307 in David Ball on Damages, edition 3.

Caveat: All this assumes you’re good at putting on a Reptilian^© case. You’re not if all you’ve done is read the book or just attended the Intro seminar. Explore our website – ReptileKeenanBall.com – for the many available ways to get up to speed: seminars, Keenan Ball College, other books and DVDs, this blog, etc. Until you are good at putting on a Reptilian^© case, you must still avoid even optimistic Conservative jurors because without an effective.

Reptile^© case, they won’t budge out of their tort-“reformed” status.

By Don Keenan

Sometimes I even surprise myself at how well the Reptile^© works and especially the stuff I developed.

I’ve always known that the Keenan method of witness preparation was toxic and game changing, but I never realized the real depth.

Many lawyers contact or come up to me proclaiming that when I said the system will make your client the best witness of the case, thought I was maybe exaggerating.  Their stories convinced them and convinced me that it’s not an exaggeration.

You know we all know that the system removes the client’s guilt, destroys negative attribution, and arms them with their Major Truths. The most powerful thing it does, however,  is what my good friend, Jim Fitzgerald, said to me at the very first Welcome to the Revolution in May of 2009,  where I showed the system and as well a number of video clips showing the transformation in the clients.  Jim in a truly excited utterance said the system makes the client authentic.  Truth and sincerity drips from their pores.

It wasn’t until Jim’s revelation that I really understood the true power of the system.  Jim was absolutely right, it makes the client authentic.  Not only will the jury believe an authentic witness they will embrace them, protect them, celebrate them, comfort them.  It’s as if the witness is what the juror wants to be.

Powerful stuff, but it wasn’t until a recent trial that I recognized the true nuclear power, let me explain.

This was a case where a young man in his 20s had suffered a severe life-changing TBI and we were suing the defendant for having caused in part, not in whole, the TBI.  There were other parties involved that settled.  In the face of this TBI injury we had some pretty good experts so the defense knew the target.  They had to point to another reason for the damages or at least another reason that would mitigate full responsibility by the defendant.

Unfortunately, there was a sea of collateral information about the boy’s early childhood.  His mother and father fought like hellcats.  The police were called on dozens of occasions.  The uncontradicted evidence was that the wife had struck the husband a number of times.  He refrained from hitting her, but instead, hit the wall, hit the car, and hit the refrigerator.  All of this was documented in the public records, either the police reports or the multiple requests for restraining orders, it was all there.  My referring attorneys made a gallant effort to keep out all of this and filed all the motions in limine.  However, the Black Hats were able to convince their experts that this evidence was extremely important to understand the real cause of the boy’s mental condition.  As ridiculous as it was it nonetheless played to the focus group and we were concerned.

The father and I bonded in a unique way.  He was 350 pounds plus, had hands big enough to look like they already had a boxing glove on them, and he looked intimidating.  I did the witness preparation myself, which I often do, because I think it is just that important.  So I knew full well what his testimony was and he made it through Step 5 of the process, the gut check, and Number 7 on the system, the promise, so I knew he was ready to go.

This was a protracted trial, to say the least, and when I put the father up first, it was at the end of the day, and I knew I only had 30 minutes, but I wanted to condition the jury on the core of this man.  I went straight for the bottom line and asked him “What’s your purpose in life?”  He didn’t hesitate and said, “My purpose is to be the best father to my boys that I can possibly be.”  Then in keeping with my who, what, when, where, how come method of direct examination, I then followed up with that statement by asking him, “Why”?  He then took a deep breath and said “I had the worst childhood possible.  I was beaten, humiliated, and told I would never amount to anything constantly.  Please don’t’ feel sorry for me because the whole time I was telling myself, and God, if you’ll permit me someday to be a father, I will promise on my soul to be the best father there’s ever been.” So we’re about five minutes in to the direct exam and already the jury is showing emotional empathy.

I don’t know what else I covered in the next 25 minutes but it was not memorable and not much.

I put the father up the next time at about two to three weeks later, and once again, towards the end of the day so I would only have 30/40 minutes.  This time I covered everything this remarkable man had ever done for his child and the nightmare that the defendant’s conduct had put his family and son through.  Once again the emotion on the faces of the jury was palpable.

I always knew that we were going to have to have all the bad stuff, the dirty laundry, come out, and of course, I knew I had to bring it out first. The next time I put the father on the witness stand it was about another two weeks later, but I put him up early in the day, because I knew this was going to be a long one.  My first question was something like, “We got some dirty laundry in the closet we need to bring out to the jury. Do you know what I mean?”  He said yes and then I asked him if he was prepared to tell the truth about everything so the jury gets to have all the facts.  He answered yes.

Then, at that moment, as if a miracle happened, the Black Hat stood up and said, “Your Honor we need to have a bench conference.”  So there we were, huddled around the judge, and the Black Hat says, “I suspect Mr. Keenan is going to go into all of the domestic abuse matters.”  I said, “Of course I’m going to get into it because you’re going to cross-examine on it.”  The Black Hat then said, “Well, Your Honor we’ve decided not to.”  Now sometimes I wish good stuff would happen just because I visualize it, but that doesn’t happen.  So this time I didn’t know if it was true or a mirage.  So I launched into an itemization of all the stuff that had been the subject of the motion in limine, and put on the record that none of that was coming in, not only with the father but any other witness.  And the Black Hat says, “That’s correct.” I could barely hold my excitement to know that a man that I had come to feel close to was not going to be subjected to a sliming in the courtroom.

Now, you obviously know that the Black Hat did not decide to go into the bad stuff because I was going to get into it.  Any average plaintiff’s lawyer is going to get to it before the cross-exam.  That wasn’t it. There is no question that they saw how the jury was relating to the father, their emotional response, their body language and they knew full well that that jury believed he was authentic and they were going to protect him.  They also knew full well that any attempt to slime the father would backfire incredibly.  Believe me they didn’t do it because it was the right thing to do.  They did it because they knew it would hurt them more.

Now I’ve been using the Keenan method of witness preparation for nearly 25 years and I have seen it settle cases and win trials although I usually get the credit.  But never did I see a phenomenon like I witnessed in that case.

The judge reminded the Black Hat that we had spent nearly 2 days on all the motions in limine directed to the bad stuff and how hard they had fought to get it into evidence.  But the judge was also seasoned enough to tell the Black Hat it was the right thing to do.  She knew it would backfire on the Black Hat.

Bottom line:  If you’ve never used the Keenan witness preparation method or never viewed the DVD series, get it now and you will be amazed beyond your perception.

Testimonies for the Keenan Witness Prep method:

1. I just finished what was probably about my 20th preparation of a client using the Reptile^© This is a love hate relationship for me.  I have to say I hate it because of the time that it takes.  I look at all the work I have to get done in my other cases and wonder how I’m going to do it.

 I love it because of the time that I get with my clients.  The trust relationship that is built in the three days is worth every minute.  Using this method, I have had work comp awards of $1.7 million and $500K.  I have had several denied cases where the client received significant awards at trial, mainly because of the client’s credibility.  I’ve had six figure soft tissue verdicts in cases which easily could have been defense verdicts without the Reptile^© Depo prep.

The client I prepared for tomorrow’s deposition is a wonderful young mother who is now girded with the truth to battle a royal ass.  I am looking forward to sitting beside her and watching her in action.

Anyone not using the Reptile^© Depo Prep is missing out.

I just had to share.  Take care,

Jim Fitzsimmons

2. Amen!

 I prepped a client for a depo last week.  On the first day she sat down nervous and very afraid of the “unknowns.”

At the end of the second day, she was confident and comfortable and really wanted to get at it.  The other lawyer came in and was woefully unprepared.  He took a 20 minute deposition (didn’t know my client had had knee surgery) and then left.

My client wasn’t relieved when it was over, she was pissed that she didn’t get to tell all of her Major Truths.  I had to laugh.

Like you, Jim, I have plenty of other great stories just like it I could share.

Matthew A. Lathrop

3. All,

This is not what Michael asked for, but was mentioned in the Blog and it impressed upon me the importance of being all in on the Reptile^©.  I have a case that I consider a good case (maybe better than that), but I have been concerned about the client and, mainly, his wife, regarding their testimony at depositions that we have coming in a few weeks and at trial.  I have insisted that they and I spend the time to truly and completely follow the Reptile^© method of witness preparation.

To do this, I separated them and prepared them individually.  It took more time to do it that way, but yesterday it all began to come together.  There was a breakthrough with both of them.  The client revealed inner feelings he has not even told his therapist which will be extremely powerful (and those are the words used by two different people in my office) who never say that and were not involved.  Second, the wife was, for the first time, a decent witness.  She was apart from her husband and revealed a number of things that she felt (not bad about the husband) but how it has destroyed her life.  I believe that both of them will perform well in the depos and, ultimately, at trial.  Before, I did not think this was true.  Needless to say, at trial, I will ask the jury for permission to not have them present or, at least, for him to leave during her testimony.

To all of you, if you don’t have the video, get it.  If you have it, use it.  If you haven’t watched it recently, watch it again.  It is amazing what you get from people when you shut the hell up, listen and let them talk to the point where you get their innermost feelings.  Please do yourself and your clients a favor and follow this method, it PAYS OFF.  Thanks.

 Jim Lyons

4. Ok, I hate to admit this, but I have been a bit skeptical of the witness preparation bit.  Honestly, I have bit hook, line, and sinker on the Reptile^©.  I believe it is a way of life if you are going to be doing just about anything.  I have started the long process of completely changing my practice and the way I handle cases.  It takes a while to implement.  One thing I was not grasping was the witness preparation.  So I bought the DVD, but I didn’t watch it right away.  Well, I watched it and still wasn’t seeing the entire picture.  I read up on it more.

 Well, I have a sexual harassment trial against our lovely former Sheriff in September and a deposition of my client coming up.  I started looking at my calendar and realized how few days I have between now and the deposition, so I told my client on Sunday we need to meet today.  I had let someone borrow my DVD, so I got it back and watched some of it last night as well.  I figured, if I’m going to do this stuff I need to do it right, even if I’m a bit skeptical.  I have literally done thousands of client preparations in my 10 years of practicing law on all different types of cases.  My client is a Sargent in CID and a tough woman.  She has been a cop for eight years, so she has had to develop some thick skin being an attractive, slender young women working with a bunch of cops.  I told her I need to write down her fears, concerns, etc and meet me at 7:00 this morning.  Well, as much as I probably bungled the delivery, I started going through the first part.  Before we go through the end of her list of fears, there sat, her guilt.  I just knew that she wasn’t going to have any guilt.  Shit, she had done NOTHING at all.  Hell, she brought up the guilt without me pressing her on it.  We talked and talked about (or I just listened and nodded my head).  Then we developed her major truths.  Now I didn’t really know how to do it so I just asked straight from the outline “The defense will blame you for what happened, and you didn’t do anything to stop it or enough to stop it.”   Well she blew my hair back and rattled off 10 great things.  Just rattled them off.   Got some really great stuff and it was her great stuff.  Man we squeezed some lemons this morning.  Then after she was finished I asked, “What if they say it was welcomed sexual advances?”  Man she let me have it again.  Every bit of proof that there is.  After squeezing all these lemons, I asked one final question, “Now, what would you say if they say it just didn’t happen, that you are lying?”  Her face actually got red and she told me all the hell that she has gone through and that there is not enough money in the world to have done this and there is nothing she can do to take this back and we finally got to her biggest major truth,  “SHE HAD EVERYTHING TO LOSE TO COME OUT AND TELL HER STORY, AND NOTHING TO GAIN.  ABSOLUTELY NOTHING.”  We got done and she just sat in a chair in my office totally exhausted.  After about 5 mins she said, I have never been through anything like this.  This was amazing, thank you.  We just sat in silence until she was ready to go.   We were only at it for about an hour and a half.  I had court at 9:00, but I was not going to leave.  I was determined not to rush anything.  I ended up being about 20 mins late, luckily the judge was as well.

I can tell you now I am 100 percent on board with the witness prep method of Don and David.  I’m sure they would be embarrassed at how much I tried to screw it up, but one thing I never did was cut the client off or ask anything remotely suggestive.  I did pause a lot to try and figure out how to ask questions.  And I think I may have not got one or two small lemons, but I have never gotten that much relevant information out of a client.  If you are not doing this on witness prep, then you are just cutting yourselves short.

 Sorry for the long email, but hopefully someone will find it useful.

 Douglas “Monte” Tynes, Jr.

5. Mates,

I’m please to tell the group that Dad and I obtained a $125,000 jury verdict in favor of a deserving client today. Charles Yeargan did an excellent job presiding; Tom Curry defending.

They offered her $7,000 initially. $9,000 offer of judgment after the case was filed. $60,000 two days before trial. The defense lawyer told me he could probably get $70,000. The client instructed me that she didn’t have anything to lose with that and rolled the dice. We asked for $495,000.

It was a double aggravation case. The client has Charcot-Marie Tooth (CMT) disease … which is a progressive debilitating condition that affects the extremities. The records were weak in that there wasn’t alot on the wreck making the CMT worse. The client also had a bunch of degenerative findings 8 months before the wreck; she ended up getting two steroid injections in her neck that didn’t help her. She then started seeing her treating chiropractor before the wreck, who made her better. She was pain free 7 weeks before the wreck. After the wreck, she’s still treating about twice a month.

The defendant was a 16 year old kid who just got a permit. He testified he was going 35 mph near a school zone when he rear ended the client. The client rear ended the person in front of her. The frame of the client’s Tahoe was bent in 4 places. The kid’s dad is a used car dealer in DeQueen. According to the client, his family owns everything in these parts. However, everyone knows the dad is an ass.  We kept the dad in on parental liability in the hopes he had screwed someone on the jury over in the past 25 years.

Past medical bills were waived. The judge excluded the defense lawyer from talking about them the day before the trial.

Our theory of the case was that the wreck caused the client’s neck injuries, which caused her to be less active, which is what made the CMT worse to the point that she couldn’t work. The defense lawyer wanted to talk about the client applying for SSD based on CMT instead of the wreck. The judge excluded it as a collateral source; and kept it out despite repeated attempts to get it into evidence. He thinks he has an appeal on that.

Great client; great family. Her two kids, husband, mother in law, and best friend testified on her behalf, in addition to her treating chiropractic physician. The defense lawyer made it out like the chiropractor made all his money on PI cases, even though it was his first time in court in 24 years of practicing.

Although she had a $231,000 loss of income claim, I’m happy the client is getting some money, but she definitely deserves more.

 Thanks to all who responded in helping us getting ready to try the case.

Taylor Chaney

6. Joey McCutchen wrote:

Good job. I’m glad to see that you waived medical bills and used the strategy we studied at our Arkansas reptile retreat in Fayetteville! Danny Ellis (Tenn), Alvin Wolf (Missouri) , and Mindy Bish (Calf),  each spoke by Go To Meeting about their success with the strategy. We talked in our monthly Reptile^© meeting on Monday about setting another retreat soon. Again, great work. Look forward to learning more from your trial experience. I’d like the retreat to focus on Voir Dire and Reptile^© depositions. There is a lot of new things in these areas that we need to make sure we are all up to speed on. We will have the black letter law brief done shortly.

7. Thank you again for speaking to us during our AR-Reptile^© Group Retreat last fall! Your success and encouragement inspired us to take a leap of faith and try something new to waive past medical bills in the amount of $12,000+, which we think was a major factor in not anchoring yesterday’s verdict.  And thank you Joey for inviting them to videoconference with us!

What do you all think about being tight lipped about this strategy of waiving past medical bills, and not posting to the general ArkTLA listserver nor talking about in the ArkTLA magazine? The Black Hat in our case thought we were crazy in waiving past bills, and told the judge he “couldn’t understand why we would do that.” The longer we keep this away from the defense lawyers, the more opportunities we will have to ambush them. The key to success with this strategy is to have an order in limine filed to prevent the Black Hat from making any comment about the failure to ask for medical bills. Amend the complaint to not ask for past medical bills, so it is not relevant, and that is the basis for the order in limine.

One major key to our $125,000 verdict was Judge Charles Yeargan’s willingness to excuse for cause jurors who said they could not follow the law concerning the aggravation of pre-existing condition element of damages.  And bias toward chiropractors to the extent they could not be fair as a juror.

The clerk notified 100 people to show up for jury duty, and 79 were present, because the Defendant Daddy was a well-known car dealer and the clerk suspected we could have a problem seating a jury. Five were excused for: aunt of defendant, hard of hearing, medical appointment and two went church with plaintiff.

The judge refused to strike 3 school teachers who taught school with the Defendant Son’s wife, and one whose father worked for Defendant Daddy (who claimed he would not be biased in the least).

The judge struck 14 during my voir dire.  But it was close. After I identified a large group having a problem with pre-existing, the judge went out of his way to rehabilitate them. Fortunately, I was standing near where Taylor was sitting, and he whispered to go back to the old lady who said “no way” could she pay anything to a plaintiff with pre-existing.

BE A WOODPECKER!

I went back to the old lady and had her talk some more about “no way” could she be impartial.  Then I did my own rehabilitation of the large group who were opposed giving anything for pre-existing.  This time the judge excused them all as a group of 8 or 9 people. It was gratifying to see a large group of tort reform jurors exiting the courtroom together.

I always voir dire on who does not like chiropractors (and never ask who likes chiros, or you will identify who the defense will strike). I think there were 5 in this group who the judge excused as a group.

I don’t know if Taylor has notes of the others of the 14 excused for cause during my voir dire, which I think included one or two who did not believe in giving anything for pain and suffering.

Black Hat Tom Curry gave the most vicious closing I have encountered. He really polarized the case by outright accusing plaintiff of scheming the whole case after she was hit by the 16 year old son of the town’s biggest car dealer, told the police officer no injury, and then going to the ER after her Tahoe was dropped off at a friend’s house.  Curry said plaintiff knew from watching TV commercials that she was supposed to get a lot of money after getting hit. Curry said plaintiff had motive due to degeneration in her spine shown by an MRI eight months before after a slip on ice and catching herself on a vehicle, resulting in arm pain, for which she saw many doctors for and then eventually went to Chiro Wolfe. After six weeks, Dr. Wolfe had her doing well. She did not see Dr. Wolfe during the 7 weeks before crash – and Curry accused Dr. Wolfe of destroying his records during this time period. Client went to work part time for Dr. Wolfe’s clinic the last few years, and Dr. Wolfe was accused of helping with the fraudulent scheme.

Client also had CMT – Charcot Marie Tooth Disease that is genetic and common in her family, which primarily affects the lower limbs. She was a clumsy cheerleader in school and had trouble with falls all her life, and learned to “fall gracefully.” Both of her sons had CMT and testified about having to learn to fall gracefully. Client’s mother had CMT and was in a wheelchair since her mid-60’s, and her grandfather wore braces. Curry portrayed plaintiff as having a progressive, debilitating pre-existing conditions, and schemed to cash in on the “accident” with a 16 year old kid to take care of her future financial needs. We claimed that Client’s CMT was aggravated, along with her degenerative condition.

Taylor did a good job delivering a Reptile^© Opening by the book, worked hard in preparing plaintiff and key witnesses using Reptile^© techniques, and gave a by the book Reptile^© closing.  I did the rebuttal closing focused on polarizing that was helped by the Black Hat’s vicious closing, and ended with a conscience of the community theme.

Allstate offered $7,000 to plaintiff presuit and called me. I told her not to cash the check. After suit was filed for this 2009 mvc, there was a $9,000 offer of judgment filed. Not much in the way of settlement negotiations until 2 business days before trial, when Allstate offered $60,000 and the Black Hat said he might could get $70,000. Client considered and rejected the offer. She was pleased with the verdict after seeing how the process worked, and had a much better appreciation of the risk of a poor result we warned her about. Everyone in the courtroom heard the shouting behind the jury room door during the first hour of the two hours of deliberations. We were a bit disappointed the verdict was not higher, but it could have been a lot worse.

There is an article about how Allstate “redesigned” its claim department to take away all adjuster discretion in evaluating auto injury claims, mandating that the Colossus report number was the maximum settlement authority amount, putting “The Boxing Gloves” on the Good Hands if the claimant will not accept the lowball offer, and then to use hardball tactics of “Delay, Deny and Defend” in using the civil justice system as the “Kill Box” to finish off the claim.

Our firm has been focused on handling UIM + Bad Faith claims against Allstate for almost 10 years. This includes going to the home office in Illinois to authenticate the 140,000 pages of claim department manuals and documents implementing “CRRP.”  The UIM bad faith cases are the best way to hammer Allstate and return the favor of what it has done to our clients and us since the 1990’s. Some states have recognized a new tort of “wrongful defense” based on these wrongful claim handling methods, which would be fun to pursue in Arkansas with the right case.

We have a trial starting next Tuesday where we have teed up the same kind of UIM + Bad Faith against State Farm for doing the same thing in abusing its own policyholder in the same manner third party claimants are abused. State Farm “redesigned” its claim department before Allstate did. The cheating by these largest carriers resulted in extra billions of dollars of additional annual revenue when they stopped fairly paying claims. This cheating created a competitive advantage over other carriers, and the rest is history with most other carriers doing the same thing.

Wish us good luck in giving the State Farm Big Bully a bloody nose!

Don P. Chaney

8. It was a 3 day trial ending around 1:30 p.m. with no lunch break.

Plaintiff’s direct exam by Taylor took 26 minutes, with at least a 1.5 hour withering cross. During a break without jury present, after more grilling by the Black Hat to make a record after the judge excluded a Social Security Disability document claiming disability from CMT (and no mention of mvc injuries), our client’s pain intensified causing nausea and she puked (part of her pain pattern).

When she rose from the witness chair with her hand over her mouth, and her husband yelled, “She is going to puke,” I sprinted to grab a waste basket under the court reporter’s desk, and met the client moving fast off the witness stand. There was no time to spare as she vomited into the waste can in my outstretched hand. Another form of courtroom drama!

Most of plaintiff’s story was told through her family and friend witnesses. Plaintiff went last.

The trial broke nicely to where the third days was instruction, closing and deliberation when the jury was fresh.  Late night verdicts rarely favor plaintiffs. At 4pm, on the second day the judge asked the jury what they preferred, stay late and finish, or come back? I heard some voices about staying and finishing because they were already there. I spoke up and said to the judge that I suggested he tell them it could take several hours to finish. The eventual jury foreman (an R.N. instructor at a local community college) picked up on this, and then lobbied the others to come back the next day. And they did. At that point we had a good idea about who the foreman would be.

Don P. Chaney

9. Our client told me over and over and over how intimidated she was by the defense lawyer. I spent several hours with her getting her to understand her major truths (I never called them that) on several different occasions. I was a little nervous about it, but she did well in her deposition so I figured she’d do okay at trial.

When the Black Hat got up on cross, she let him have it. It was like watching a prize fight. I was really proud of the way she handled herself on the stand. She ended up being her own best witness.

Thanks to David Ball, Papa Don, and everyone else for their input, and teaching us how to arm our clients and jurors.

 Taylor Chaney

10. Don,I’m writing to thank you……again and again.On Friday we settled a case for $300,000. The CTLA believes you can’t get over $100,000 on a soft tissue case. You need surgery to crack that threshold for settlement.My case was a rear end wreck. My client’s car was drivable. She didn’t seek any treatment for 4 days. She treats with a chiro and some with a neuro. There is about $20k in chiro bills on the file. The neuro can’t find anything objectively wrong with her.I get on building her case with damages. We blow them out of the water with fact witnesses. We prep our client using the Keenan methods on your DVDs. I send her for a life care plan. Scared the defense. The defense then sends the client to the biggest defense hack IME in the state. He of course finds she’s a malingerer. We focused grouped this issue. The focus group didn’t buy it one bit.Heading into mediation, we destroyed the IME doctor by getting transcripts. The mediator concluded he was the best thing about OUR case.

    I deployed some of the deposition techniques that I learned in Atlanta this January. Defense counsel and defendant had no idea what to do. The defendant ended up stating the rule in my case “you must keep your eyes on the road” without me prompting him. I hit him with some humanization stuff.

    We showed some of the focus group stuff to the mediator. He was impressed. He knew we could have tried the case that afternoon if we had the opportunity to pick 6. Me and co-counsel lived off of Keenan Edge 1 and 2. Great stuff on blowing DME’s out of the water.

    Prior to Reptile^© coming into my life, I would have looked at this and been happy with $60,000. Most of the damn Bubbas in this state would pat themselves on the back for 60k on these facts.

    Anyhow, the case would have gone to trial in early July. Once the settlement gets confirmed, I will book the Keenan Ball College in July in Boston. Now my calendar is free and the accountant says I have to spend my money. No better place to spend it than with you.

    Also thank you for sending me Advocates United. I’m excited to learn more. I hope to find a way to make this happen for my firm.

    Thanks again. It’s not the largest verdict/settlement I’ve had but it’s damn rewarding. Someone taught me “there are no small cases”.

    Ryan McKeen

11. Keenan witness prep pushed us over the finish line.

Mediator was great. He had some legitimate concerns about our case. I made the call to have him voice those concerns to my client. He did. Her response blew him out of the water.

He went from trying to twist our arms on 175k to getting their defense to paying us 300k.

We had prepped her using your methods for trial…scheduled in two months.

But she was armed to the core with her truths and had no guilt. She was a rock star to the mediator as a result. All I had to do was get out of the way. My work had been done over three sessions of prep.

It’s caused me to entirely rethink mediation prep for a client. It can be every bit as important as depo and trial prep.

Woodpeckers,
If you have not purchased and watched and re watched the Reptile^© Witness Preparation DVD, you have to.  I hear all the time “this will change your practice.”  This one really will.

It’s been several years since the DVD came out.  I had read the three preparation steps in one of the books, thought I could figure it out without spending the money.  Nope.  Got the DVD about a year ago.  Put off watching it.  Finally, had a road trip alone and converted by own bought copy to MP3 so I could at least listen to it on the road.  Holy Cow!  Epiphany!  Light bulbs blowing out and sparking!

I’ve prepared three clients for their own depositions since listen ending to the DVD multiple times.  There are 7 steps.  Each necessary.  Necessary to go in order.  Frustrating at times.  Hugely rewarding in the end.  Each time has taken about twice as long with the client as I expected – time with client is one of the best things you can do for success.  One client went from a timid meek self-deprecating little follower to a serious straight forward witness who swift boated every defense herself at her deposition.  Another was so confused and overly explanatory.  This seventy year old great grandmother understood what made her tick (abusive father), why she felt like no one would believe her if she didn’t just keep explaining and explaining.  She was dynamite at her deposition – sweet, but firm, swift boating every defense thrown at her – and gave the other lawyer unshirted hell when asked how a shoulder injury had affected her life – she spontaneously rattled off about fifty normal things everyone does daily without thinking but give her trouble or are impossible for her to do, then had a good deep heaving cathartic cry.  Afterwards the defense lawyer was talking with me about getting his “client” to pay; I talked about wanting to try the case, and I do.

It’s not just a wonderful system for the client.  It’s very freeing for the lawyer.  How many of us learned to go over every interrogatory response, every possible question type, how to answer every type of question, every trick and trap, and basically found the client so overwhelmed with information on how to answer questions that it really wasn’t effective at all?  Ever show your client a DVD or video to prepare?  Guilty as charged.  As with so many other things since the Revolution, you can throw all that out the window.  Don has obviously thought about why we do anything we do and countless times has thrown the conventional method out the window in favor of what actually works.

Think about it – if your client has about 7 major truths, that they own and can return to every time, does it really matter if they don’t recall the name of every doctor they ever visited, every minor injury to unrelated parts of the body, every job ever held, the dates of every starter marriage, or any of the other background info that takes a majority of every deposition?  All that is collateral to the main event.  And once the client understands their truths and how that fits in with what the defenses are going to be so they can be their own best advocate, every minor detail, every other type question, is just noise.

Another big up side is bonding with the client.  If you think you have a good bond beforehand, you ain’t seen nothing  yet.   Trust.  Appreciation.  That feeling that you have gone through something important together.

I’m a big fan of the EDGE method of instruction – Explain; Demonstrate; Guide; Empower.  The books give us the Explain part real well.  The seminars give us the first two.  That’s probably enough for some people to “get it”, but not me.  Without me practicing and working through a technique myself, I can talk about the theory all day long and pass a written test, but can’t work it well in real life.  That is why I go to the KB College courses.  The College gives us all four.  The Witness Prep DVD gives you the first three and you are ready to empower yourself and will see it the first time you use it the way Don lays out for you.

I have not been asked to write this.  It is just such a big deal I want to spread the news.  Some of you are no doubt saying “No shit, Grist, we got that four years ago, what took you so long?”    That’s fair.  I was late to the Reptile^© and my wife is happy to tell you the only thing between my ears is expanding foam.

I’m not going to list the seven steps.  Get the DVD.  INVEST THE TIME.  I hope Don never lists all the steps on the blog or the words he uses that flow so well with the client.   Get the DVD.  INVEST THE TIME.  Your practice will change for the better; I promise, warrant and personally guarantee it.

Joel Grist, Attorney

12. Joel, I have also been working and using the Kennan witness prep for my clients.  I have to agree and my clients are more than ready to deal with defense lawyers and their tactics.  I think this is a great tool and I urge all to start working this into their cases.

Robert L. Clements

By: MICHAEL PETERSON, KEENAN LAW FIRM

This month’s Reptile^© Superstar is Charles Armbruster. He received his undergraduate degree from the University of Michigan, and his J.D. from Washington University School of Law in St. Louis. Charles has been practicing law for over 20 years. Charles is a partner at Armbruster, Dripps, Winterscheidt & Blotevogel, LLC, where his firm focuses on FELA Railroad and product liability cases.

Outside of the law, Charles is a proud father of twin girls. Whether it is planning vacations or assisting with homework, Charles is passionate about spending quality time with his family.

Introduction to Reptile^©:

Charles purchased the Reptile^© book hot off the presses in 2009. According to Charles, the Reptile^© just made sense. The first time Charles used the Reptile^© was in a MVC case. The case involved a pizza delivery driver who collided with another vehicle. Charles represented the child in the case, who happened to be a backseat passenger in the plaintiff’s vehicle.

Charles used his Voir Dire to spread the tentacles of danger, and wrapped up his closing by arguing that a jury is the conscience of the community. His client received a verdict of $2.1 million, and Charles received confirmation that the Reptile^© is real. His favorite Reptile^© tool is conscience of the community. According to Charles, conscience of the community presents every lawyer with an opportunity to arm the jury with the means to protect their community.

Facts of the Case:

Charles’ client, worked as a transport driver who hauled cars on trucking rigs. Charles’ client, while transporting a load, decided to spend the night at a hotel. When he woke up in the morning, he found that some of the chains that were securing the cars to the rig came loose. As he went to tighten the chains, the metal component that routes the chains throughout the truck broke, causing the tension in the chains to release. The slack in the chains caused Charles’ client to fall to the ground. The plaintiff would later learn that this fall caused him to suffer a herniated a disk in his lower back. Charles’ client did not feel like he needed medical attention after the fall, and so he continued to transport his load.

Later the same day, the chain broke again. This time Charles’ client caught himself to prevent a fall. Charles reported both incidents to his employer after he had completed the transport. The plaintiff managed to work for another week until the pain became unbearable. Charles’ client went to the hospital, and his doctor conducted an MRI that revealed a herniation in his disk. He then received an epidural and began physical therapy. The following year, his client underwent a micro discectomy to remove the disk. After rehab from surgery, Charles’ client begged his treating physician to permit him to return to work. His treating physician granted his request. However, when Charles’ client returned to work, he often had trouble completing his assignments and experienced pain while performing job related task.

Sometime prior to trial, but after the first fall, Charles’ client slipped and fell on a patch of ice. The fall left him unconscious. He went to the hospital and his physician diagnosed him with a herniated cervical disk. The plaintiff underwent surgery and went through rehab. At that point, his treating physician informed him that he could never go back to work as a car hauler. Charles’ client took a job at the Salvation Army. Charles’ client sued for his injuries relating to the first fall. The client’s medical bills amounted to $60,000. Charles’ client was 50 years old at the time of the injury.

Medical records show that the plaintiff had a long history of low back pain. The defense argued that Charles’ client did not suffer a herniated disk from his fall on the job, but rather from his fall on the ice. Furthermore, the defense insinuated that the plaintiff was lying about his medical history. Lastly, they argued that if he did fall on the job, then his fall was a result of his choice to wear shoes that were against company policy. There was no offer in this case

Pre -Trial Reptile^©:

With great help from his partners, Michael Blotevogel and Brian Wendler, Charles began working to apply the Reptile^© concepts to this case.

Charles placed much of his pretrial focus on his client’s witness prep, which he conducted by following the Keenan Method of Witness Preparation. With all of the negative attribution associated with his client’s pre-existing injuries, Charles knew that it was necessary to ensure that his client was confident about his medical history before he went trial. Charles spent two days with his client preparing him for his deposition and direct. He then took additional two days, to assist his client with his Major Truths.

His client’s Major Truths were as follows: 

1. He was not the cause of his injuries.
2. He did all that he could to rehab and recover.
3. He has been truthful with all of the medical information he has given.

Reptiling^© the case:

Voir Dire:

Charles used his Voir Dire to distinguish himself from the defense and to earn the jury’s trust. Charles began his Voir Dire with passion questions. He then took it a step further by asking the jury, “If you didn’t have to be here, or at work today, what would you be doing right now?” These two questions alone caused an eruption of conversation throughout the panel.

Charles has seen plenty of attorneys bore the jury to sleep during Voir Dire, because they focused too much on the individual, rather than trying to generate cross talk amongst the entire panel. Charles told the jury that he appreciated their time and understood the sacrifice they were making by sitting on the jury. He promised them that he would not waste their time with frivolous facts and needless interruptions. The defense attempted to copy his demeanor but his performance fell flat.

Opening:

Charles implemented the traditional Reptile^© opening. He provided his rules, presented the story of case, and outlined his order of proof. Charles finds that the Reptile^© opening template places him at ease. Before the Reptile^©, he used to feel like he needed to steal the Black Hats thunder. Now, he embraces the negative attribution in his case, because Reptile^© has prepared him to handle it.

Charles developed two rules for this case:

1. A product manufacturer is required to make their products safe product to prevent serious injury to the community.
2. A repair shop is required to properly repair equipment to prevent serious injury to the community.

Charles’ client was the first witness to take the stand. His client was the only one who witnessed the injury, and so Charles expected the jury to heavily scrutinize the credibility of his client’s testimony. For this reason, Charles placed heavy emphasis on his client’s Major Truths in an effort to diffuse the inherent bias in his testimony. Charles had his client testify to each of his Major Truths. During his direct, his client informed the jury of his pre-existing injuries, and explained that he had no limitation in movement or pain prior to this incident. His client verified the story of the case, and corroborated the injuries he suffered from the fall with the hospital’s medical records. Charles found out at the end of trial that the jury found his client’s testimony to be genuine and sincere.

The defense used his cross-examination to prove that his client was a liar. They claimed that his injuries stemmed from his fall on the ice. Charles’ client did not lose his temper when he was confronted by these accusations; instead, he relied on his Major Truths, and simply referred to his medical records, which documented his hospital visits, surgery, and rehab stemming from his fall on the job.

Moreover, the defense claimed the plaintiff’s injuries were not as debilitating as the plaintiff would make it seem. Charles’ client stuck with his Major Truths. He informed the jury that he was a hard worker, who wanted badly to continue his career as a truck hauler. He explained that the defendant’s failure to redesign their chains prevented him from pursuing his career choice. Charles noticed the jury nodding with his client’s statement.

Furthermore, the defense claimed that if he did fall on the job, then he fell because he did not wear the shoes mandated by his company. Again, Charles’ client stuck with his Major Truth that he was not the cause of the fall. Charles’ client testified that his employer was mistaken about the shoes that he wore that day. Charles’ client actually entered the shoes he wore that day into evidence, as proof that he met the qualifications of the company. Moreover, he argued that the company never produced a report or reprimanded him for wearing the wrong shoes. During the plaintiff’s cross-examination, the defense requested 10 sidebars, each of which lasted longer than 5 minutes. Charles’ client was calm and confident, during his 4-hour cross-examination. Charles did not mind the length of his client’s cross-examination, because most of the defenses’ arguments were lost in process.

Charles wanted to use the defenses’ IME and liability expert to polarize the case. Charles asked the IME, whether he believed his client’s pain stemmed from a fall. The IME doctor agreed. Charles asked the defenses’ liability expert whether she agreed with the safety rules. She agreed. Furthermore, the defense’s liability expert acknowledged that safety was a primary consideration for their company. She claimed that their company has the responsibility to stay abreast of changes in the industry and safety. However, she testified that this was not a concern in this case. Her testimony allowed Charles to enter the injury records of other employees of the defendant, who were injured when the same piece broke on their trucks. Study after study revealed that the company knew they needed to change their design and had the ability to do so, yet refused to make the change.

Closing:

Charles was very cognizant about remaining off-code. In contrast, the defense was very dismissive of the jury and repeatedly interrupted, which lengthened the trial. By closing arguments, Charles could see that the jury had become visibly angry with them both. Charles remembered that he had promised them that he would not waste their time. He felt bad that the trial had lasted this long, and so he chose to start his closing with an apology. He reminded them of the promise he made during jury selection, and how he would not waste their time with sidebars and needless things. He admitted that he did not come through on his promise, and asked for their forgiveness. After he apologized, he began to feel the tension evaporate in the room.

In contrast, the defense did not apologize. Charles took this opportunity to show how the defense was not willing to accept responsibility for anything. Whether it was their failure to apologize, or their obfuscation of the facts, or their repeated sidebar request, the jury found the defense to be completely on code. This made polarizing of the case that much easier.

Charles stated, “Up until now, all the defense has done is obscure the facts and waste your time. They have yet to show that they are not the cause my client’s injuries and they have yet to prove that my client did not sustain the injuries he claims. Even the defenses’ IME agrees that his injuries stem from a fall, and my client’s medical records prove that he fell on the job and suffered a herniated disk.”

Furthermore, Charles informed the jury that they are the Conscience of the Community. He told them that they have the power to ensure that a company designs safe products in the future. He acknowledged the jury’s expectations for product safety with their cars, playgrounds, even home appliances, and he informed him that this was nothing different. Charles argued that the jury does not want products they can tolerate, but products that are safe. If a company declares that they have a right to endanger their consumers to save money, then the jury has the right to demand that every product be safe to in order to save lives.

He told the jury that they have a choice to believe their client and compensate him for his injuries, or to give the defendant a pass. Charles explained, “At the very end of this trial when you go home, your friends and family will ask you what it was like to serve on a jury, and you are going to have to give them an honest answer. Did you make this community safer with your verdict today? Are we all better off? These are the questions that you will be tasked with answering today.”

Verdict:

The jury returned a verdict of $2,091,000. The jury delivered their verdict around 7 p.m. The defense was shocked. Before he left the courtroom, he talked with the jury and asked them whether they believe they made the community safer through their verdict. Some of the jurors agreed; however, they felt sorry that they could not convince the other jurors to eliminate the 45 percent comparative fault on his client. The verdict was humbling, and the plaintiff was elated. He felt vindicated because the jury did not believe that he was a liar.

Conclusion:

This case taught Charles the importance of remaining off code and polarizing the case. The stark difference in the way he tried this case in comparison to the defense, allowed him to gain the jury’s trust throughout the entire trial. He felt as though the conscience of the community argument truly resonated with the jury. When it comes to damages, Charles would encourage us to be straight up with the jury. Do not beat around the bush or play games. Simply tell them what you want and if you have earned their trust then they will respect you for your honesty.

St. Louis County is a dangerously conservative place to try a case like this, so a win like this speaks volumes about the power of the Reptile^©. By polarizing the case, and remaining off-code, Charles was able to overcome adversity and obstacles to achieve a truly remarkable verdict.

By Don Keenan

We recently unveiled the new mediation course at the Keenan Ball College (www.keenanballcollege.com) and the faculty was truly outstanding. The students were over the top with praise for the new template and tools offered during the course.

I was surprised to learn that none of the students were familiar with the summary jury trial, which I have used for the past 15 or 20 years with great success. So I wanted to take that thought down the road for a minute and ask how many of y’all have been at mediation where it breaks down into the Black Hat contending that the jury would do such and such, and you contend the exact opposite. This is an absolute deadlock stalemate; nothing can move through that impasse.

My first encounter with the summary jury trial came during a mediation monitored by a federal judge in Tennessee, where he properly observed the factual impasse and directed us to appear the following morning to do a non-binding summary jury trial. He advised that we may have 15, we may have 12, we may have eight – but regardless, we will sure have a jury. We proceeded with the mini-trial and I was thankful to be on the winning side, from which we returned to the mediation table and things moved rather quickly to a conclusion.

Simply stated, the summary jury trial takes the leverage away from the Black Hats.

Through the years, every time I have encountered a similar factual obstacle I have recommended to the mediator that we do the summary jury trial and do it quickly—within the next day or two. What I found, however, is that it’s often different than the time in Tennessee. The Black Hats balk. They run from a summary judgment trial like the Wicked Witch of the West runs from a bucket of water. Why? They know they can’t win the summary judgment trial and that you have just exposed their puffery.

So the second reason to propose having the summary judgment trial is simply to smoke them out and get them to stop using whatever they’re using as leverage, which they know not to be true. In my experience, maybe 20 percent of the time when I propose it we actually go to a summary judgment trial. I am thankful not to have lost a single one of them. Obviously the other 80 percent of proposals were just to call their bluff. The good news is, after the bluff is exposed we then have a breakthrough in negotiations that will sooner or later conclude the case on my terms.

The first summary judgment trial I mentioned in Tennessee was conducted in front of actual jurors summoned to the courthouse for regular jury duty. The judge had 10 of them come to his courtroom and explained to them what the procedure would be: He would give an overview of the case, I would get to do a 20-minute opening statement followed by a  20-minute opening from the Black Hats, and then I would get a three-minute rebuttal. Even though it was the first time I’d done this, it felt natural, particularly after the jurors deliberated for a short period of time and brought back a liability verdict. Subsequent summary judgment trials have been a hodgepodge of different procedures worked out by the lawyers. Sometimes they cover opening statement, a couple witnesses, and then the closing. Some will have some videotaped testimony.

Of course, when two opposing lawyers get together there’s likely to be disagreements, and that’s what can occur at any turn. The judge in that first case in Tennessee didn’t give us any choice in the jurors. Thereafter, the actual makeup of the jury was subject to some degree of disagreement, compromise, etc.

There really isn’t any set procedure for the summary judgment trial; it’s simply whatever works for that particular case.

Bottom line: When you do a summary judgment trial, it busts the logjam and gets you back to the mediation table with a lot of leverage. Use this new tool of the summary judgment trial to bust through any logjams at mediation concerning over what a jury will do with a particular issue. Furthermore, in a high percentage of cases, you’ll find the conflict over the liability is nothing more than a bluff, which you can call out by challenging them to a summary judgment trial. If they chicken out then you know it was a bluff – but, regardless, they’re stripped of any leverage.

NOTE FROM PAPA DON: Many of you know that for the last five weeks I’ve been in Boston on a trial with David Hoey, Dean of the Keenan Ball College. No offer against a verdict of $6.6 million. Lots of lessons learned but the sad news is that the Black Hats had much of the Reptile^© secret sauce from seminars, the blog, and the College. At this point we cannot share anything about the trial until this matter is concluded, which, hopefully, will be soon. We lost every motion in the trial such that the Black Hats have —0— to appeal.

By DON KEENAN—Over the course of teaching the Intro: “Welcome to the Revolution,” I usually include a section on how to use repentance in your case.

Recently, I saw an exchange on one of the listservs regarding the use of repentance that was wrong, and I asked that my blog on repentance be posted on the listserv to eliminate confusion.  Much to my surprise, I discovered that I have not written a blog on repentance and, therefore, I will do so now, as follows:

Repentance is extremely important to the Reptile^© because true repentance can be an admission by the defendant of wrongdoing and the defendant’s making it right.  Therefore, the danger ends. However, given the tsunami of stipulated cases, it is necessary to examine why the stipulated case is not true repentance.

There’s no question that the motivating factor of the Black Hats in admitting liability is to curry favor with a jury and hopefully receive some sympathy such that the verdict is greatly reduced. However, simply admitting liability does not accomplish true repentance.  The best way to explain why repentance is not accomplished is covered in the following verbatim portion of my closing argument, as follows:

“Ladies and Gentlemen, whether you believe scripture is the inspired word of God or whether it is the work of man, which carries with it some mighty powerful statements; I think we all agree that it outlines a good set of rules to live by. So, without trying to show religion one way or the other, I simply ask you to consider the many hundreds-of-years-old concept known as repentance. Y’all understand what repentance is—it’s three steps:

1. Accepting your failure and/or transgression
2. Taking full responsibility

And the last step, ladies and gentlemen:

3. Making it right

And you have to have all three of these; otherwise, it’s not a true repentance.”

Now, examine what happened in this Closing argument:

“For two and a half years, the defendant has denied responsibility—the second part of repentance.  Then, all of a sudden, 11 days before trial, he/she has admitted responsibility; but is this true repentance?  Well, true repentance would mean that the defendant has made their wrong right. The situation wouldn’t require a jury; the defendant would have made it right.  But instead, we have fake repentance.

We have no closure here. We have no safety here. And it now becomes your responsibility, as a juror, to bring about closure—to bring about closure for the plaintiff’s family, by speaking justice making it right, and also, frankly, to bring closure to the defense, because they need to understand repentance so that they, too, can move on in their life. Make no mistake about it—until this is made right, there is no repentance.  The plaintiff is not safe; no one is safe until we get community closure on this. That’s what you are going to do in your verdict.”

This closing argument segment is extremely important in exposing the Black Hats’ failed attempt to get sympathy when they have not “made it right”.  In my experience and the many that have used my words, the effect on the jury is the creation of anger toward the Black Hats’ attempt to fool the jury and pull the wool over their eyes.  Like in this instance, in cases where the Black Hats hope that the jury will cut them a break but the reverse comes true, a larger verdict often results.

Understand fully the three steps to full repentance. When you speak honest words, most jurors hearken back to Sunday school and to the ways they teach their children about true repentance.  If your little boy knocks a baseball through the neighbor’s window, it’s not enough for your son to simply admit, “I did it and I’m sorry.”—Full repentance would require your son to pay to get the window fixed.

Now, there are many instances where you can use repentance powerfully.  If the defendant has cried tears on the witness stand about what they have done, this can enamor sympathy with the jury. A repentance argument will stop sympathy in its tracks and expose the defense tactic for what it is—a trick.

BOTTOM LINE: understand that repentance is purely Reptilian^© and, if completed, will ensure that no danger exists.  False or incomplete repentance means danger is still present and the defendant will suffer the jurors’ anger at an attempt to trick them.

By: MICHAEL PETERSON, KEENAN LAW FIRM

This month’s Reptile^© Superstar is Brent Sumner. Brent Sumner received his Bachelor’s degree in biochemistry from the University of Missouri, and his Juris Doctorate from St. Louis University School of Law. After law school, Brent worked with a small law firm in the hope of practicing plaintiff’s litigation. After six weeks of working there, a Black Hat firm acquired his firm and Brent switched his focus to patent litigation. At the end of his second year in practice, Brent decided to start his own law firm. He then went on to create The Sumner Law Group LLC, where he focuses on MVC and premises liability cases.

Introduction to Reptile^©:

Brent was introduced to the Reptile^© around 2010. According to him, the Reptile^© immediately made sense. Brent was recently a student at the Rules and Case Selection course (#1) at the Keenan Ball College in Chicago where he was taught by instructor Alvin Wolff, as well as by Danny Ellis and Bob Montgomery; and, according to him, “the course was amazing.” Brent wrote his entire opening for the case featured here before coming to the KBC. He then presented his opening at the KBC in front of his instructors and peers, who analyzed and refined his opening and safety rules. Furthermore, they aided him in developing his Reptile^© theme and bumper sticker.

Brent’s favorite Reptile^© tool is Spreading the Tentacles of Danger.

Brent usually weaves in the Tentacles of Danger with the conscience of the community and with his safety rules. According to Brent, “I use the conscience of the community to empower the jury, the safety rules to embolden the jury, and the Tentacles of Danger to reveal the potential danger that a rule violation may have on their community.” Brent is impressed by how much the Reptile^© has completely changed the way his firm prepares for trial.

Facts of the Case:

The defendant was an EMT in Paramedic school. He had just completed his last semester at school and decided to celebrate the moment with his friends at a local bar. The defendant arrived around 10 p.m. and ordered a couple buckets of beer with friends. However, the defendant testifies that he only had two drinks that night. He stayed at the bar for about 2 hours before he got behind the wheel of his Nissan Maxima. The defendant drove south on Jamison Rd., while Brent’s client was heading north on Jamison riding a motorcycle. The defendant chose to make a left turn without yielding in front of the plaintiff’s vehicle, causing his Nissan Maxima to hit the front end of the plaintiff’s motorcycle.

Brent’s client flew over the handle bars of the motorcycle onto the windshield of the defendant’s vehicle, and then onto pavement. The plaintiff suffered a fractured right leg and kneecap. Furthermore, he broke both of the bones in his right arm and tore the muscle in his right shoulder, as well as fracturing his pelvis and penis. The police took everyone’s statement; however, they failed to perform a sobriety test on the defendant. Brent chalked this up to the “Good Old Boy” network between the police and the defendant, who was a local EMT.

The ambulance rushed Brent’s client from the scene of the wreck to the hospital. Once at the hospital his client became extremely combative with the nurses and doctors. His violent behavior forced his nurses to heavily sedate him. Due to his violent behavior, the hospital drew up a toxicology report, which revealed that Brent’s client had drugs in his system at the time of the wreck. The hospital also determined that the client’s injuries were all non-surgical. The plaintiff spent six days in the hospital and left the hospital against medical advice.

The plaintiff had an extensive criminal history and a pending criminal case.  He was also noncompliant when it came to his medical treatment.  Based upon these issues, the Defense chose to attack the credibility of the plaintiff and show how he was on-Code for “biker” and “criminal”. Given these complications, it was no surprise that the Defense’s first offer was only $250,000.—Brent’s client denied their offer.

Pre-Trial Reptile^©:

According to Brent, the KBC reinforced how important it is to focus group cases before trial. Brent had never run a focus group before this trial. The support he received from his peers at the College encouraged him to organize focus groups. For this case, Brent teamed up with Alex Wolff and Ben Sansone to help him run some of them. Ben and his colleagues organized four focus groups, and attempted to use their first to deliver a strong defense opening—an opening filled with all the case’s negative attribution.

Brent had his subjects consider everything from his client’s drug use on the day of the wreck, to driving with a revoked license, to leaving the hospital against medical advice—as well as his client’s criminal past. Brent wanted to determine whether these facts were simply hurdles, or unmovable mountains that he needed to fight to keep out. The focus group analyzed each fact and concluded that his client should not have been on the road that day. The amount of negative attribution he received was overwhelming. Brent drew up MILs to preclude each of the negative facts in this case. The focus group made it clear that if he presented those facts at trial, he would lose the case.

Brent used his first MIL to argue that his client’s revoked license was irrelevant to the facts of the wreck since there was no issue of comparative fault. The judge agreed with Brent, despite the fact that his client’s driver’s license had been revoked for 10 years due to his history of (multiple) DWIs. Brent’s second MIL addressed the drugs found in his client’s system on the day of the wreck. The judge precluded that evidence because the Defense failed to hire a toxicologist to testify regarding the drugs. Brent also filed an MIL to preclude the Defense from introducing evidence that his client left the hospital against medical advice. The judge ruled that the Defense could not introduce that evidence without medical testimony to show a connection between plaintiff’s injuries and leaving the hospital against medical advice. After losing all of their MILs, the Defense increased their offer to $500,000 before trial.

The one thing that Brent could not preclude by filing a MIL was his client’s criminal history. However, every time Brent placed this issue in front of the focus groups, they repeatedly stated that his client’s criminal past was not relevant to his injuries. This was the biggest blessing from the focus groups. Many lawyers told Brent to accept the defendant’s offer and, given his client’s history, Brent was close to listening to them; however, the focus groups gave Brent the confidence to reject the Defense’s offer and proceed to trial.

Voir Dire:

Brent always values an opportunity to earn the jury’s trust. Brent sought to use voir dire to address all of the hot-button issues in his case. He told the jury that he wanted them to be brutally honest about how they felt about his client’s criminal convictions. He encouraged them to speak freely. For this reason, Brent did not bring his client into the courtroom because he wanted the jury to feel as comfortable as possible while discussing these sensitive topics and believed that would be best accomplished in the absence of the plaintiff.

He started the discussion by focusing on the venire’s motorcycle bias. Brent then went into his client’s criminal history. He told the jury that the only reason they were there for that trial was because the Defense believed that Brent’s client’s criminal history entitled them to a discount on his injuries. Brent chose to be very honest and upfront with the jury during voir dire. He discussed the safety rules for the community at hand and talked with potential jurors about their abilities to say what they expected of other drivers in their community, and to hold rule breakers responsible for all harms and losses. In the end, Brent was extremely happy with the jury seated to hear the plaintiff’s case.

Opening:

The KBC gave Brent the Reptile^© Damages outline for opening, for which he learned the value of using statistics and bumper stickers. The in-house counsel for American Family Insurance was present for Brent’s opening and he told Brent that he liked both Brent’s opening and his bumper sticker.  Brent’s bumper sticker was, “Failure to yield, yields disaster.” He developed his bumper sticker at the College with his peers and instructors. The Defense used their opening to admit that their client was at fault and was the cause of the plaintiff’s injuries. The only thing they disputed was the amount of damages. Brent’s rules went as follows:

1. A driver making a left turn must yield to oncoming traffic to prevent crashes and protect us all from mayhem.
2. A driver must keep a careful lookout for others on the road to prevent crashes and protect us all from mayhem.

Witnesses:

Every witness Brent brought to the stand was a damages witness. Brent started with an eyewitness, who also happened to be a friend of his client. His client’s friend gave the story of liability and damages. He testified to the plaintiff’s health and demeanor after the wreck, as well as to the effect that the injuries would have on the plaintiff’s daily routine and ability to work.

Brent also called on the defendant driver. Brent had the defendant agree to the safety rules. Brent then asked the defendant what he did for a living and had him to describe the physical demands of his job. The defendant mentioned that his job requires him to lift, pull, and walk. The defendant agreed that his own job was physically demanding on his body. Brent then discussed each bone the plaintiff broke and how each limited the plaintiff physically. Brent asked the defendant if those same injuries would limit the defendant’s ability to perform his job and daily activities. The defendant agreed that plaintiff’s injuries would also limit him also. Brent asked the defendant whether he would want to be compensated if he could no longer perform the tasks required of an EMT and the defendant agreed. The jury was able to see that this case was not about the plaintiff’s injuries, but about anyone who is injured because of someone else’s negligence.

Brent also called his clients’ employer to testify about the plaintiff’s harms and losses. The employer testified to how these injuries would affect the plaintiff’s ability to remain a mechanic. He talked about the body parts involved with being a mechanic and discussed the physical toll that the job has taken on his body after several years in the profession. Given the plaintiff’s injuries, his employer testified that is was very unlikely that the plaintiff would be able to continue as a mechanic in the future.

The last person to take the stand was the plaintiff’s sister. Her testimony was emotional—she talked about how she received a call on the night of the wreck from the EMT, and showed up at the hospital not knowing if her brother would be alive. She witnessed the limitations of his injuries and even allowed him to live with her while he recovered. She talked about his difficulties and took him off-Code. No longer was he the big rough criminal, but simply a brother.

His sister was crucial. She humanized him and showed the jury that he was appreciative of those who helped him. She testified to the fact that her brother would never be the same. By the end of her testimony, she and the plaintiff were in tears. The jury perceived her testimony to be real and honest.

Closing:

During closing, Brent weaved in his theme of responsibility and equality. He told the jury that there are three steps to taking responsibility. Brent informed that for a person to truly take responsibility a person must 1) apologize, 2) admit, and 3) remedy. Brent conceded that defendant apologized and admitted his fault; however, he had not made the client whole, and that was the remedy. Brent argued that the Defense was not trying to make the plaintiff whole again. Instead they were showing evidence of plaintiff’s criminal history and attacking his credibility.  Brent pointed out that the Defense did not call a single doctor in this case to say that the plaintiff was not hurt. They simply placed his client’s criminal convictions on the projector in hopes that the jury would not like the plaintiff and give the Defense a discount or pass. That, he argued, was not accepting responsibility.

Brent argued that the jury had the opportunity to teach equality to the Defense and force them to take responsibility. The Defense was asking the jury to treat the plaintiff differently because of his criminal past. Brent argued that we must treat all people equally in the civil justice system. Brent argued that the jury’s role was to place a value on plaintiff’s harms and losses and to sign the verdict form. He argued that it was the jury’s job to convey what these harms and losses are worth. That way, when a doctor, lawyer, or neighbor suffers from those injuries, that jury would be responsible for the benchmark set in the city of St. Louis. He told the jury that their verdict would tell the Defense that they treat the plaintiff the same as anyone else and hold the defendant responsible for the injuries caused and the harms and losses suffered.

Brent spread the Tentacles of Danger by getting the defendant to admit on the stand that anyone could have been riding on that motorcycle. In closing, Brent reminded the jury of that and how the defendant admitted that he thought that he had hit a jogger at the time of the crash. He told the jury that the criminal justice system had already punished the plaintiff for his mistakes in the past and, therefore, that discipline was not in their job to impart.

VERDICT:

The jury returned with a verdict of $1.75 million. According to Brent, his focus groups taught him where to go with his safety rules, how to take his client off-Code, what harms and losses drove the case, and where to focus to overcome the negative attribution in this case. To say that Brent had an uphill battle is an understatement. Despite Brent’s unstable client and his pending felonies, the Reptile^© came out on top. This case is proof that the Reptile^© works.

According to Brent, “If you can get the jury to understand that giving the defendant a pass poses a bigger danger to the community than enforcing the safety rules, then you are one step closer to winning you’re a case and properly advocating for your client.” Brent left this trial with not only a win, but also a stronger belief in the Reptile^©.

By: DON C. KEENAN

            When I was a puppy lawyer, one of the tipping points at which I felt that I was a sure enough trial lawyer was the time that I got the court to take judicial notice of the Georgia Life Annuity tables. 

The author as a puppy lawyer

            With the sound of the gavel, the court validated the life expectancy in my case to the jury. My mama was in the courtroom—my last remaining living family member—and she was beaming.  I felt like I'd won the case. 

            Today, if I admitted the statutory life tables (or even work expectancy tables), in my opinion, I would have committed malpractice.  I would have just shortchanged my client's recovery by fifteen, maybe twenty years. 

            While I don't often talk about how Codes are obtained, the life expectancy Code was so easy that I'll give you a bird's-eye.  First—you Google life expectancy (or somebody else does) and you look at the first 20 pages and simply pull out any of the blurbs that give a numerical end date.  You then go under ‘News’ and see what the professional media, life insurance companies, the annuity people are saying about life expectancy. 

            Though Codes and virtually every topic are much more extensive than I outlined above (seven steps often take a full day and don't resemble in any regard the type of focus groups that lawyers have become accustomed to), when we were researching them, Google and the ‘News’ were so telling that we then proceeded to do the "expectation" focus group:

            “Ladies and gentlemen, assuming that you have good quality of life—that is you can walk, talk, have your mental faculties intact, and are not in pain—how old do you expect to live?" 

            —In your own focus groups, you can also tell your subjects that they can use their family as a go-by, or use articles they've read or anything they care to consider to answer the question.— 

           Then we had everybody write the number on a piece of paper with their name on it and had each person sign theirs.  (This technique is always used when you believe that some of the early answers will taint and change the late responses.) 

             After all of the predicted ages had been written and passed to the front, we did a real quick eyeball to see if there was a bell curve—that is: some on the low side, some on the high side, and then everybody else in the middle; or it was a “pack” number—that is: everybody's virtually the same. 

            Obviously, this type of focus group takes all of about 15 minutes, and afterwards you can go on to other issues or cases depending upon what's on your agenda. 

            In the seven or eight life expectancy focus groups that I have been involved in, the general "pack" number was 90.  The bell curve came out at roughly 90 because, on one end, you have those who said 100 and, then, on the other end, a few who said 75. 

            These results are interesting, but predictable if you know the Reptile^©.  If you ask someone: "you said 90 but, now, could it also be greater than 90 or less than 90?"—Most folks would say greater than 90, but not less.

STOP RIGHT NOW:

            Ponder to yourself: why such optimistic numbers?  And why does it blow the leaf off the tables?  Stop now and think about it, and when you get an answer come back and read further. 

            Well, I hope you got the right answer, because it is pure Reptile^©—Bubba wants, needs, and believes he deserves to live a long life.  That's pure Reptilian survival.  So, once again, the Reptile^© imprint comes screaming at you. 

            At the Keenan Ball College, the faculty of the voir dire course teach you exactly how to imbed the life expectancy question into jury selection.  Isn't it obvious that, if you got a poll of jurors who all hovered around an expectation to live 90 years or more, that they are going to be very accepting of your economist and your argument that your client deserves the same life expectancy?  During voir dire it takes maybe 5 minutes. 

            Some of you are saying: “Papa Don, are you just running these in the South?” Well, we first learned nearly nine years ago that true Reptilian imprints are independent of demography—they're the same in Tacoma, Washington as they are in Albuquerque, New Mexico as they are in Summersville, Virginia, and so on… 

            Beliefs on life expectancy are no different.  We've done focus groups to support this in five or six states so far. 

            So, what does this mean for trial?  Well, I tell my economist that if they're going to use the tables and give me a 70 year life expectancy then I will take out a gun and shoot them graveyard-dead on the spot.  I simply ask the economist to investigate life expectancy in the same way we went about getting the Code for it, except minus the focus group. 

            There are tons of articles, studies and major media that make out a 90-year expectation to be shortchanging the plaintiff.  Please recall the 23 February 2015 TIME Magazine cover that carried the photo of this gigantic, plump, white baby with the heading "THIS BABY COULD LIVE TO BE 142 YEARS OLD". 

            Even if Bubba didn't read the story or buy the magazine, he’s for sure going to have seen that title and he’s going to have seen all of the media that USA Today has generated and all the morning talk shows that follow after those print stories.  It's a tsunami of expanded life expectancy. 

            Try to get your economist to reference the stuff that Bubba may have seen:

"Well, as reported by Time Magazine, you may recall that the one with the plump little white baby on the front claims current research indicates that in the next number of years, people may live to be 142-years-old." 

            If your economist says that, not everyone but some on that jury are going to be hit with a light bulb—they are going to recall it and then they are going to appear smarter than the rest of the jury by telling the others that they saw it.

WORK LIFE EXPECTANCY

            Now, let's turn to the curve for work life expectancy—this saddens me.  My grandfather who raised me, along with my mother and grandmother, after my father died when I was a year-and-a-half-old, looked forward all his life to retirement. He worked very, very hard, only to die a month and a half after he retired.  I still choke up at the thought. 

            But the Code for work life expectancy will make everybody choke up, because the Code is "I'll never retire"—and the simple elements of that Code are no pension, no equity, no savings account, tons of living expenses.  All of these elements equate to the fact that the 99% in this country can never retire.  So, once again, I've got the economist that's going to use a work life expectancy of 62 and, once again, my Smith & Wesson Silver 38 Special with hollow-point bullets will kill that economist graveyard-dead.  The shortened calculation cheats my clients, and I can never let anybody cheat my client—particularly somebody I'm paying to be my witness. 

            Now, there's plenty of data out there that talks about the inevitability of no retirement for the 99%.  In fact, what the data does show is that a sizeable number of folk will be laid off or fired before they reach company retirement, and the replacement job that they will have to get will pay just a fraction of what they made before.  Haven't you noticed a lot of grandparents slinging burgers at McDonalds? Grandparents who are janitors and maids in hospitals and hotels?  You think those folk enjoy it or do you think their very existences depend on those meager McDonalds paychecks? 

            Focus groups have proved time and time again that Bubba don't think he's ever going to retire.  Just five minutes or so during voir dire will completely support your argument for this.

            Now, during voir dire you may want to go beyond what they quote to be their life expectancy and ask the members of the jury to answer, “Who’s the oldest person you know?  How long has the oldest person in your family lived?”  I love the anecdotal stories that’ll come out, where they talk about Uncle Harry mowing the grass at 97. 

            You see, my fellow woodpeckers, something as important as life is emotional, not logical, and tables ain't got nothing to do with it. 

            BOTTOM LINE: There's a new day for life expectancy and work life expectancy—and it's all pure Reptile^©.  

ANSWERS POSED ABOUT THE LIFE EXPECTANCY BLOG ARE ANSWERED IN THE TRENDING SECTION, TOP RIGHT ICON ON THE BLOG

By Kris Sobczak

NOTE FROM PAPA DON: We concluded the Boston no-offer trial with a $6.6 million judgement and focus groups were very important; we did more than 20 in Atlanta and 9 in Boston. I had the pleasure of trying that case with a stud of a lawyer named Kris Sobczek. I say “stud” because he is a first-generation American from Poland, an officer in the U.S. Marine Corps and is as tough as new rope. Kris has gone through the Keenan Ball Trial College (KBC) course on focus groups so I asked him to write an article about the training. Here's Kris:

I have been asked, and have the pleasure and honor, to provide an overview of my experiences and observation at the most recent KBC Focus Group course, Course #3 (http://www.keenanballcollege.com/courses/course-3-focus-groups/#tab-id-1). 

Although it is the third course in the Reptile© hands-on laboratory and practical curriculum (i.e., the KBC) it quickly became evident to me that its importance and primacy is on par with Course #1, The Rules and Case Selection, as it makes up the core of the Reptile© and must be one of the first steps/courses. After all, we’ve heard it a million times (or darn close to) when asking another Reptilian lawyer of what s/he thinks of our rules, opening, particular piece of evidence, etc., and the answer is (or should be) always the same: It does not matter what s/he/we think. (We do not get a vote.) What matters is what Bubba and Bubbette think.

The trial will be decided by the jurors – your own Bubbas – and we need to know what is on their blackboards regarding our particular case; hence, focus groups are at the heart of the Reptile© in practice. Without them, there is no Reptile©. We can theorize all we want, but when we start dealing with real cases, real facts and real jurors in our jurisdictions – that’s when focus groups are a necessity.  The one quote from day one that resonated the loudest (echoed in one form or another by all the instructors) was: “Do not let your jury be your first focus group!”

But if you’re reading this, then you’re likely already sold on the importance of focus groups.

So then we turn to the Focus Group course. It should come as no surprise that focus groups have been the focus (pun intended) of the Reptile© educational curriculum (and a way of life and practice) in many instances and forms. There was a focus group webinar, a two-day in-person seminar, six separate blog entries to-date dedicated solely to the topic of focus groups, corresponding chapters in The Keenan Edge first and second editions and many other examples that touch upon this important topic. Now, there’s a full blown two-day Keenan Ball Trial College course on it.

The reason we need the course (and why I found it extremely valuable to attend) was the second biggest take away (and a major truth, to borrow a familiar term, of focus groups): Anyone with some time and money can put on a focus group, but to put on an effective focus group – one where you learn something true (and valuable) about your case (and yourself along the way), not just something you wanted to hear – it must be done right. To do it right, we have to know how to do it right (not just close enough) and practice, practice, practice (and in case I have not mentioned it enough, practice some more).

At KBC, we start with instructions from some of the country’s best in this arena; I had the pleasure of having Fred Higgins (from Texas) and Guss Brown (from Maryland) as instructors, with Mr. Keenan and Andrew popping in with comments both days, going over the mechanics of conducting a focus group and how to report and record the results. The last step – which the college course also touches on – and the most important part about focus groups, is that after the focus group is reported on, it must be interpreted.

The course covers the different types of focus groups that can be used. Each participant brings a real case with them, to be tried in the Reptilian way (as by now, there is no other way), which needs to be presented to the groups in the proper Reptilian way (one that stands firmly on all three legs of the Case Selection Criteria stool) and how we are going to do it. With faculty guidance and review, we decide which type of focus group is best suited for the cases that we are/were working on.

And then the live fire exercise starts.

The courtroom (or conference room) fills with a jury panel (pre-arranged by the Keenan Law Firm ahead of time; thus, we have the group’s demographic information from the beginning). One by one, we go. The instructor is introduced as the moderator and the course participants are the individual presenters. Each course participant is allocated approximately 45 minutes with the focus group panel, with half of the class presenting their cases on day one and the other half on day two (day two includes a completely new “jury” panel).

The Focus Group course has eight different cases. We each used different types of focus groups throughout the day and learned from one another’s presentations. As the student/presenter goes, the rest of us observe, take notes, practice the focus group reporting, and learn. We learn the good and the bad (as the old adage goes – it is good to learn from one’s mistakes, but it is even better to learn from someone else’s mistakes so we do not have to commit them in the first place). The instructor/moderator jumps in when necessary, or covers what transpired during breaks or after the panel leaves for the day.

The live fire exercise goes well beyond the mechanics and without the trials (and errors) of all eight of us (with the necessary and experienced oversight and guidance), we all learn and become better. Something as simple as using the right follow up question (saying “tell us more” versus “tell me more”) gets embedded into your brain (or it certainly did into mine) when heard from instruction, then seen in action and then finally, repeated in live practice. In my case, I used a “concept type” focus group presentation; giving only few facts from a neutral point of view (key word being the neutral point of view, so the focus group doesn’t feed us the answers they think we want to hear). This technique helps get to the bottom of Bubba’s blackboard and all the negative attribution lurking out there.

Then, the challenge is to stop talking; keep it short and simple (“why,” “how so,” “tell us more”), listen and watch the jurors’ body language and group dynamics. The bottom line is I learned things about my case I did not know before (although we suspected some of these findings) and the same was true for all of the other seven participants. As an added bonus, being in front of the focus group (and being videotaped) helps with subsequent self-evaluation and helps to stay off-code, a little bit at a time.

By the end of the second day of presentations, with eight mini-focus groups done and reported on, we could (and did) commence with interpreting the results. However, this is where the greatest value of the college (the collaborative process, and hands-on work with the best) really pays off.  We learned there is no worse crime in the Land of Focus Groups than premature interpretation. By feeding off the experience in the room, we started to truly explore why Bubba is saying what Bubba is saying. This led me to my third biggest take away from the course: To understand the Reptile we must get Bubba and all that comes on Bubba’s blackboard (you’ll be surprised, I certainly was). To understand Bubba, we must go deep (squeeze the proverbial orange) and get not what Bubba says, but why Bubba says it (and what it means). This is where hands-on practice with the masters pays off in spades.

In closing, we know (and hear) that the way of the Reptile© is ever evolving and we must continuously adapt and overcome to stay ahead of the Black Hats. Focus groups are at the core of the Reptile©, as they are the first (and best) insight into the mind of Bubba. That is why there is so much Reptile© material on focus groups (all of which should be reviewed by us on a regular basis).

When you are ready to take it to the next advanced level, the KBC course on Focus Groups is the perfect, logical next step to get you there. The hands-on experience cannot be duplicated elsewhere – unless, of course, you happen to be conducting a focus group in Atlanta (or Boston) with Mr. Keenan at your side. Of all the advanced courses available at the KBC, the Focus Group course is the one that I (and you should as well) want to repeat over and over again. Each time we can learn more about Bubba and the core of the Reptile©.

By Don Keenan

Let me just keep this simple and tell you what I tell the jury in closing argument:

“Ladies and gentlemen, you know now what precious few Americans know… That is, you now know what happens when an average person is wronged by a rule breaker. You know now the price that broken person has to pay in order for the lawyer – in this case, me – to stand before you at the end of the case.

“Most folks, including myself before I became a trial lawyer, get our knowledge about the trial process from television. Isn’t it wonderful on TV how all cases presented are simple? You know within the first 10 minutes who did what, and then a miracle occurs! Sixty minutes later there is a jury verdict and the case is over.

“I realize before you got here you didn’t think a trial and the trial process was quite that simple, but you now know the full truth, the bare truth, and frankly, the sad truth: The price a person must pay in order to be in front of a jury and get justice.

“So let’s walk a mile in those moccasins. While the trial has only lasted a couple days, the litigation process has been going on for a couple long, frustrating years. The finger has been pointed at the plaintiff that she’s a liar, a faker, and she wasn’t really hurt. Then her doctor was challenged by a rent-a-doctor, a so-called ‘independent medical examiner’ that is anything other than independent. The defense has been all about delay and deny. The witnesses were compelled to a deposition room and grilled as if they were liars. And then, finally, there was the anguish over whether anyone would believe her. Imagine.

“Now you know the price an average American has to pay in order to get here.

“That price is too high, but there’s nothing I can do about it and nothing you can do about it except one thing… Ring the bell of justice loud and strong! While the price was too high, the end result is that a jury of her peers has done the right thing.”

Usually I put this near the end of the closing, but anywhere is ok. Just keep it short.

BOTTOM LINE: Just like I’m keeping this blog today, keep it short and to the point.