By Elizabeth Larrick

Note from Papa Don: Elizabeth is a frequent contributor to this blog, exclusively on the topic of witness preparation issues. She currently serves as the Dean of a newly-created course at the Keenan Ball College (KBC) on this subject (the first course we offered filled up within a matter of 22 days). It should be noted that Elizabeth has developed such an expertise in witness prep that she is often hired by lawyers to do precisely that in their case workup: Prepare the plaintiff and prepare the damage witnesses. I saw the fruits of her labor firsthand in a case I handled, where the referring attorney had hired her to do the preparation. The plaintiff's deposition probably added another 30-40 percent to the value of the case. Here is her guest blog this week:

Caption: KBC Witness Prep Faculty training Jan. 2016

The Reptile© is a symphony, as we have heard many times during seminars and college courses.  Starting with case selection criteria through discovery and into trial, there is always an opportunity to “attune” the Reptile© concepts and work it all together.  One of the biggest themes is using the Emotional Button stool: Lie, Betrayal and Hypocrisy at different levels of your case; not only bringing it out against defendants and defense “painted ladies,” but in damages. 

At the Reptile© in Tractor Trailer Seminar in Atlanta, I heard Don speak about embedding the Lie, Betrayal and Hypocrisy with the client during witness prep. Specifically, Don told the story about the betrayal and lie of a particular client in a commercial trucking case. His client was a tow truck driver who took great pride in his profession.

Don’s client was involved in a severe wreck with another commercial truck driver. The defendant truck driver lied about how the wreck occurred, and furthermore, that he was driving high on drugs. His client felt an intense betrayal to his profession by this defendant. Don explained how the betrayal and lie affected his client’s mental state by preventing him from leaving the house. It affected his relationship with his daughter because he begged her not to drive on the roads for fear of her safety. In the witness prep with this client, Don was able to help the client organize his feelings and fears into Major Truths. But even more, the betrayal and the lie became chief damages for the client. 

At trial, the Black Hat stipulated liability in order to keep the facts of the lie and drug use out of the courtroom. However, it all came in because the betrayal and lie were weaved into the damages. Caveat: I am leaving out huge parts of the story because my emphasis is on the witness prep portion. During Don’s story, I made a specific note to myself to look for the Emotional Buttons in my preparation before witness prep, and address it when speaking with the client during witness prep. Fortunately, I had the opportunity in the same month to attempt the new concept with a witness.

The witness prep involved a work place injury that left the client badly burned (about 30 percent of her body). Her job was physically demanding; it required constant walking, lifting heavy objects, pulling hoses, turning, bending and other physical activities. The client had worked for this particular company for more than 30 years and enjoyed her job. After her injury, she could no longer perform her job. But she could work in a different capacity as clerical staff. The client had been waiting for an answer from her employer about returning to work for nearly two years.  For my prep work, I hunted through the file documents for facts that would support betrayal, lie or hypocrisy. I screened her employment file in depth, to find out as much as I could about her history with the company. In my witness prep memo, I listed out the areas from her work that I believed supported betrayal, lie and hypocrisy. I also listed out points the defense would want to prove and the documents that supported their theories. In contrast to the defense points, I listed what the client’s Major Truth needed to be in order to swift-boat those defenses. The witness prep memo I prepare mirrors the examples Don has provided in the Reptile© Witness Prep DVD set.

On Day 1, I asked the client questions for further facts or feelings on the employment and return-to-work areas. The client was disorganized in her thoughts and her emotions ranged from happiness to anger.

She told me the story of how she had developed anger toward her family after her injury. She had several brothers and sisters – all with several children – and extended family that lived in the same town. At times, the anger got so strong that she chose not to spend time with them or speak to them.

She told me that one of the main things she had learned after her injury was how to say “no.”  She explained before she was hurt, she worked an average of six days a week, and she didn’t really spend much time with her family. When she was working, her family would ask for financial support and she always said yes, mostly because she was so busy. After her injury, the whole family checked on her in the weeks after, calling her nearly every day.

This attention slowly trickled to a stop after a few months until eventually, no one was asking her how she was doing. But they again started asking for help and expected her to give. However, she wasn’t working and began to see how they asked for something without ever giving anything in return. This was compounded by the fact that she was now on a limited financial budget. She said she saw how her family asked for support and never showed their appreciation or gratitude.  It hurt her and those hurt feelings turned to anger. 

The story hit me on several different levels; I saw isolation, loneliness and betrayal. But most importantly, I saw she was giving me an opening to talk about betrayal and hypocrisy. She gave me the permission story – a story that gave an example and gave me permission to talk to her about betrayal.

In the time between Day 1 and Day 2, I went back through her story, going over my notes from Day 1 and documents in the file. She felt betrayed by her family – but did she feel betrayed by her job? I strongly believed the stories were parallel. 

I started Day 2 off by asking her about all the details she could think of relative to her job. She loved talking about her job and her co-workers, and had lots of great stories. We then moved into developing Major Truths in the area of liability. It was after we had set out Major Truth No. 1 and No. 2 that I started to ask her about betrayal. I used the example of her family. We worked together through the two stories – family and job – and she made the connection. She then went on to explain she had all those betrayal feelings about her employer all along but hadn’t ever really organized it in a way to really see them. She felt the emotions, but couldn’t quite put her finger on it. 

I believe one of her main hindrances in seeing the betrayal was how much her job gave her a sense of self and sense of pride. She loved her job because it gave her confidence and she was respected by others. She loved her co-workers and had essentially created a family at her work place. They celebrated birthdays and anniversaries together, made meals for each other during the week and spent time outside of work together. They respected her and she respected them on many levels. She let the positive experiences and feelings of her job hide the ugly truth about her employer. She even let guilt into the equation by feeling badly when she accused her employer of wrongdoing, despite knowing she did nothing wrong to cause this injury. We pulled apart the feelings with the facts of her clean employment records, long history with the company, and clear liability for her injuries and laid it out in an organized fashion. 

She was so much happier for it because she did not have anyone to talk to about this at home. She had been to counseling but it was very different than what she and I did; we organized the feelings from the facts about her employer and made it into a powerful into Major Truth about the betrayal. We used her words, her stories, and empowered her for her deposition.

But to be clear, Day 1 wasn’t planned or orderly like I wanted. I started with misconceptions but after that, we couldn’t stay on topic. Instead of forcing it, I just sat back and listened to her in silence. I felt that no matter what she said, I could use her stories to help me on Day 2.

I sensed immediately that she hadn’t been able to talk to anyone about the lawsuit or her injuries openly. I didn’t go in asking about how she felt betrayed – the word wouldn’t have made sense to her and she would’ve likely shut me out of those feelings; rather, I prepared by looking for areas where I thought I would find betrayal and hypocrisy, and then sat back and listened. Her feelings were real and not fabricated; I couldn’t have made it up for her. I just used what we’ve been given in the process of witness prep and applied patience.

In her deposition, she rocked her Major Truths and stood her ground against relentless Black Hat attorneys. She faced three separate Black Hats that day and her story of betrayal by her employer was authentic. At the beginning, when she and I put the betrayal Major Truth together, she was hesitant because this employer had provided her a good life. But we put logical facts to connect her anger and betrayal feelings. We organized her story and it worked beautifully. 

As part of my preparation, I always put the Emotional Buttons into every memo and look for factual support in the case.

Not every case will support betrayal, lie or hypocrisy. And more importantly, NOT EVERY CLIENT will support betrayal, lie or hypocrisy.  As with all witness prep concepts, the key is authenticity. You can’t fake it, or you risk putting your client on-code. At the same time, you risk losing your clients trust by pushing to fabricate emotions. Take the time, look for the Emotional Buttons, and continue the Reptile© Symphony.

Note: See this week’s Trending update for a case event reported to us from Texas about witness prep.

By Don Keenan

The issue of whether or not questionnaires are better than traditional voir dire is a question that will be asked by our children and our children’s children. While I don't believe that this article is going to change things much, if it will influence one or two trial lawyers then it's worth it to me.

THE 7 REASONS NOT TO USE A QUESTIONNAIRE:

1. Questionnaires Have No Personal Contact.

It goes without saying that a questionnaire is simply words on a paper. The jury provides answers to those words. First, you cannot read body language or facial expressions from a questionnaire, nor can the person answering the question make eye contact with you.

If someone were to try and tell me “an answer is an answer,” I'll tell you that person's got no business being a trial lawyer. An answer must be viewed through the lens of “do I believe the response?” Was there any hesitation; did the response feel strained or doubtful?

If someone can get a personal, emotion connection through a questionnaire, they're a better trial lawyer than I think I am.

2. Questionnaires Give the Rat an Opportunity to Think.

We all know there are certain rats embedded in our jury panel. With their beady eyes and their long nasty tails, they're just conniving away to get on our jury to kill us. They know what to say and what not to say during jury selection. So why give the rat an opportunity to think and ponder the best possible answer to get on the jury? When I'm doing my rat killing during jury selection, I keep it fast and up-tempo. This is calculated in order to distract the rat and not give him time to think. 

3. Questionnaires Do Not Get the Full Value of the Juror's True Response.

Virtually every questionnaire I've seen has a ton of rhetorical yes/no or true/false questions. At a very minimum, the questions are often confining so the respondent is forced to choose between two extremes. If you are in a live voir dire, you can get a sense of what’s behind their verbal response by any hesitation or facial expressions. This tells you the juror wants to give more than the basic answer to the question. I've often said things like, “Ma'am, you look like you want to say more about that question. Please let us know?” or, “Sir you have a troubled look on your face. What problems do you have with this question?”

4. A Questionnaire is not Bubba's Way of Expressing.

One focus group member told me he felt like a jury questionnaire was like applying for a bank loan. I asked him to explain why it felt like a bank loan application. He told me they are all pointed questions, without an opportunity to expand and tell his true answer. “When I go into a bank, I want to be able to sit across from a human being and tell them why I need the money and convince them that I'm worthy of it. I can't do that on a bank application,” he said.

5. The Questionnaire Gives You No Opportunity to Go Off-Code.

For those of you who have watched the Keenan Method of Voir Dire DVDs, you know that there are 11 separate sections that give trial lawyers the opportunity to go off-code. Some are very short questions, such as: “Do any of you feel, during our time together, that I have by tried to invoke sympathy on behalf of my client through my questions, body language or voice inflection?” or the longer version, “How many of you have seen a trial on a TV show where a lawyer who is representing the victim will ask the jury for a certain monetary verdict? And how many of you believe the lawyer gives the true number they want, versus asking for more?”

Now there's a whole lot more to this than I've just written here, but this gives you a tremendous opportunity to go off-code and bond with the jury – which is something you cannot do on a questionnaire. 

6. Questionnaire Gives Zero Opportunity for Cross-Talk.

I have often lectured that voir dire is actually an “audition” for the jurors’ with me, to see who would be my best and who would be my worst on the jury panel. The manner that they answer the question gives me great insight as to who I want, and don’t want. When the judge permits (most do) my ability to create cross-talk, on many of the questions I can see actual deliberation occurring before my very eyes.  (Cross-talk is when you take the response of one juror and ask another juror whether they agree or disagree or have a different take on that issue.) I strive to get everybody talking to me, and talking with one another. Not only is cross-talking tremendously effective, it also vastly shortens the time you need for voir dire. In my recent Boston trial, the judge required us to do one-on-one questioning of each juror at the bench. It took more than a week to get a jury put together. Daily, I reminded the judge that if he just permitted cross-talk, we would have had a jury in the first half of the first day.   

I don't care how great of a lawyer you are, you can't get cross-talk through a questionnaire. 

7. Questionnaire does not reveal the True Face of the Black Hats.

I don't think I've ever had a voir dire where the Black Hats haven’t popped up like Jack-in-the-Boxes, objecting to this and objecting to that. I can tell on the faces of the jury that they despise this type of interruption. They heard the question, they think it's legitimate, and they want to answer the question. They simply can't understand why the Black Hats don’t want the question to be asked. So a good voir dire reveals the Black Hats as purely on-code; thus the contrast between you and them begins. You can't get a casting of the Black Hat on-code in a questionnaire. Finally, think of it this way: Every single question on a questionnaire can be asked in a voir dire; however two-thirds of effective voir dire questions will never make it to a written questionnaire. 

Let me end this post with a funny story that happened not too long ago…

Whether it's true or not, I have a reputation among the Black Hats and Taliban at being pretty damned good at voir dire. Ryan Skiver and I were getting ready to try a case in Phoenix and the AIG brought in a super fancy Dan, sure enough trial lawyer from Los Angeles. This fella was a real piece of work and let me know that he could do the triple sow cow in the courtroom. After all his puffing up, I was a little befuddled when on the eve of trial they filed a motion to ban my voir dire and instead have it conducted purely by questionnaire. No question in my mind that they were afraid of what I could do in voir dire. What does that tell you about the effectiveness of attorney-conducted voir dire?

Bottom Line: You can't get with a piece of paper and a bunch of written questions what you can get with human interaction and face-to-face connection.

By: MICHAEL PETERSON, KEENAN LAW FIRM

This month’s Reptile© Superstar is Gustavo Alzugaray. Gustavo practices plaintiff’s personal injury law at Finkelstein & Partners, LLP. Gustavo’s firm focuses on med mal, product liability and MVC cases.

Outside of the law, Gustavo participates in a military outreach program and engages in clothing drives for the needy. Gustavo enjoys spending time with his daughter, and using her as a sounding board to estimate Bubba’s reactions at trial. 

Introduction to Reptile©:

The Reptile© method is a mandatory practice at the Finkelstein Firm. Initially, Gustavo had a tough time believing in the Reptile© system; however, after attending his first Reptile© seminar, he realized how wrong he was about the Reptile©. After the seminar, Gustavo was so excited about the Reptile© that he took all of the information that he learned and used it in his next deposition. According to Gustavo, the defense attorneys had no idea what to do, or how to handle the questions he was asking their client. This resulted in many Reptilian questions being answered with very few objections.

According to Gustavo, not only did the Reptile© shorten the deposition process, it also left an impactful imprint on the defense attorneys and, ultimately, the case. Gustavo firmly believes that from depositions to closing, the Reptile© system empowers the jury to return the right verdict.

Facts of the Case:

This case involved a three-car crash at an intersection. The defendant had a stop sign. The intersecting roadway had no traffic control device. The defendant testified that she came to a complete stop, looked both ways, and saw no oncoming cars. The defendant drove into the intersection and immediately crashed into the plaintiff’s car, which was traveling on the intersecting roadway. The defendant’s car continued through the intersection, and then came to a stop after crashing head on into a car that was stopped at the stop sign in the oncoming lane. Heavy damage was sustained by all three cars.  

The plaintiff had dropped his daughter off at work just moments before the crash. The sound of the impact between the cars was so loud that the plaintiff’s daughter heard it, and ran up the street. She found her dad in his car, dazed, with the air bags deployed. An ambulance arrived at the scene, and took the defendant to the hospital. The plaintiff remained at the scene, waiting for his wife to arrive to take him to the hospital. At the hospital, X-rays were taken and the plaintiff was diagnosed with a soft tissue injury to his wrist and shoulder. He was referred to an orthopedic doctor and upon follow-up, MRIs of his shoulder and wrist positively showed tears and ligament injuries.

The defendant set forth both liability and threshold defenses. They argued that the plaintiff failed to keep a proper lookout and should have seen the defendant’s car entering the intersection. They further argued that the plaintiff only received four months of treatment and refused surgery to repair his shoulder and wrist injuries. Based on his return to work and limited treatment, the defense argued his injuries did not meet the threshold requirements necessary to establish a compensable injury.  

Gustavo argued that if the defendant had stopped her car at the stop sign, she would have clearly been able to see the plaintiff’s car approaching the intersection. Alternatively, he argued that the facts clearly showed that the defendant never stopped her car before entering the intersection. This was proven by the fact that after the defendant crashed into the plaintiff’s vehicle she continued through the intersection and crashed into another vehicle.

The one hurdle Gustavo had was his client’s damages. He knew it would be hard for the jury to quantify his client’s injuries, due to his limited treatment and work appearances. He figured that the best way to approach this was through his client’s Major Truths.

Pre Trial Reptile©:

Gustavo’s deposition of the defendant was successful; at deposition, the defendant admitted she could have prevented the wreck if she looked or stopped a little while longer. Moreover, the defendant testified that it was reasonable for the plaintiff to believe that any car that had come to a stop at the stop sign would not have proceeded into the intersection unless it was clear and safe to do so.

Using The Keenan Method of Witness Preparation, Gustavo chose to spend a lot of time focusing on his Major Truths. The plaintiff felt bad for the defendant who was an older woman, who had been seriously injured in the crash. According to Gustavo, the plaintiff was a “things happen” type of person, who was simply thankful that no one had died in the crash.

Gustavo was determined to get rid of that attitude, so he had his client focus on his relationship with his young son. At the time of the trial, the plaintiff was a very proud father of a 15-year-old boy, who was very active in sports. He and his son would often practice different sports together, and the plaintiff never missed an opportunity to coach his son and be at his games.  

Gustavo had the plaintiff talk about how the crash changed his life, especially with his son. When the crash occurred, his son was about 7-years-old. He shared with Gustavo how the crash and his injuries prevented him from being active in his son’s life; he had to endure watching the other dads throwing and catching a baseball with their kids, while he watched from the sidelines. He carried with him a feeling of guilt. He felt he had let his son down.

He missed a very important time in his son’s life – time that he could never get back. Gustavo helped him understand the truth, which was that the collision was not his fault, but instead the defendant’s fault. Her choice not to follow the safety rules that all drivers must follow in order to keep us all safe was the cause of his loss of time and enjoyment with his son.  

REPTILING THE CASE

Voir dire:

Gustavo asked the venire whether any of them were drivers. He asked them about the safety rules they learned when applying for, and obtaining, their driver’s licenses. The venire discussed the safety rules and their importance in society. Gustavo asked them if they expected everyone to follow the rules and the venire told him EVERYONE – from the police to pedestrians – must follow the rules of the road. He asked them why and they replied, “If people don’t follow safety rules, there is chaos; people get hurt, and lives are changed.” When asked whether there were any exceptions to not following the rules, whether you could give someone a pass, there was a unanimous “NO.”

When he gave them Don Keenan’s 2:30 a.m. stop sign scenario (no cars on the road, feeling foolish), the jurors responded by telling him that it did not matter the time or the amount of traffic, the rules are the rules! Gustavo knew he was on his way to setting up his Reptile© case.

Opening:

Just before opening, the defendant conceded liability. Despite the concession, Gustavo began his opening by detailing the safety rules that all drivers must follow in order to keep everyone safe. Defense counsel objected, claiming that liability had been conceded, so to allow safety rules to be discussed would be improper. The court overruled the objection and allowed Gustavo to continue.

Gustavo’s client was a former military man, with a “tough guy” persona. He was a very proud and well-groomed individual. Gustavo had the plaintiff discuss with the jury what he felt, saw, and heard at the scene of the crash. He told the jury about his health before and after the collision. He went on to explain and discuss his treatment, and the fact that the doctors informed him that surgery was his only option. Gustavo’s client told the jury he refused surgery to his wrist, shoulder and knee, because such a procedure would force him out of work anywhere from one to three years. Gustavo’s client was very good at presenting his Major Truths; however, he lacked the vulnerability and connection that Gustavo wanted him to have with the jury.

The only way Gustavo knew how to crack his shell was to have him talk about his relationship with his son. Gustavo asked his client to talk with the jury about how his injuries changed his relationship with his son, and how he was upset that he could not get those years back. Gustavo’s client explained to the jury how he used to help his son practice with his little league team; however, after his shoulder injury he could no longer throw the ball. Anytime he attempted it, he would often have motion and pain issues that led to extreme pain and swelling.

Moreover, while all the other children would have their fathers tossing the ball to them in practice, the injuries forced his son to have to warm-up with other dads, while he watched from the sidelines. Their connection on the baseball field defined much of their relationship and Gustavo encouraged his client to express to the jury how his injuries caused him to miss precious years with his son. Gustavo’s client began tearing up as he expressed his guilt to the jury about these lost years. The jury was able to connect with his client, and his testimony gave the jury another reason to enforce the safety rules in this case.

The plaintiff’s treating physician took the stand next. His physician explained that he could do nothing about the plaintiff’s continued pain, unless the plaintiff decided to undergo surgery. He had informed his client that arthritis would likely set in if he did not get the surgery, which would likely leave him in even worse pain. He also testified that if the plaintiff had the surgeries, he would likely be out of work for the next two years. The physician reiterated to the jury what the plaintiff told him: “As the sole breadwinner for my family, I cannot afford to miss that much time from work, while my family goes hungry.” 

The defendant’s DME testified that the plaintiff did not have any orthopedic disability, despite the positive findings on the MRI. He arrived at this diagnosis without having more than half of the plaintiff’s medical records. The DME even stated that he knew the plaintiff’s treating physician, who he believed was a great surgeon. Gustavo asked the DME whether he thought the physician was lying to the jury. The DME said, “No.” The jury simply disregarded him as an on-code expert.

Closing:

Gustavo wanted to use his closing to empower the jury to define what they will (and will not) accept from drivers in the Bronx. He informed them that their verdict would tell everyone whether or not the safety rules that keep everyone safe are, in fact, important. Gustavo also addressed the defendant’s false repentance. He asked the jury whether it was fair for the defendant to refuse accepting responsibility for causing the crash, and then admit fault right before the plaintiff’s opening statement.

Gustavo told this jury that he believed $100,000 for the plaintiff’s past pain and suffering was fair, and $150,000 for future pain/suffering and loss of enjoyment of life was fair as well. He told them, “If you want to give this defendant a pass for the injuries she has caused and the lives she has disrupted, then your verdict will reflect that; however, if safety in your community is important to you – if holding those accountable who violate the safety rules and injure others is important to you – then your verdict will reflect that as well.”

The jury returned with a unanimous verdict in a total amount of $350,000. The judge seemed confused and asked the foreperson, “Are you sure that is your verdict?” to which the foreperson replied, “Absolutely, judge!” 

Gustavo has been employing the Reptile© on all of his cases, but this case in particular crystalized for him just how effective it really is! According to Gustavo, the Reptile© has completely changed the way he analyzes and handles his trials: By applying the safety rules using the Keenan Method of Witness Prep, spreading the tentacles of danger, and overcoming the defendant’s stipulated liability. Implementing these techniques helped Gustavo overcome adversity and obstacles, and achieve a truly remarkable verdict.

By Don Keenan

No one can doubt that at our current juncture in American history, there is major polarization between ethnic groups. The polarization in certain instances rises to outright hatred, distain and Reptilian fear. Having been born and raised in the South, fighting against discrimination most of my life, I push back. I have written on this subject before but it's been a while, so let's revisit some of the Major Truths.

I enjoyed the friendship of Johnnie Cochran for many years and had a bit to do with him joining the Inner Circle. Johnnie was not without strong opinions and one of his big ones was "race is the most important factor in a case." A while back, Johnnie and I were in San Francisco with adjoining rooms at the Ritz Carlton on Knob Hill. I remember our discussion one night that went well into the early hours of the morning – fueled by single-malt scotch, of course – on the topic of race and why it can deflect good judgment and (as he believed) be the major factor in a verdict. I wish he were still around to see our country today…

We know from the Reptile© that fear drives ethnic hatred. Carl Rove and his posse were able to get W elected by convincing their base that unless they fought back and elected W, this country would be overcome by Mexicans, Chinese and lord knows what other groups. We see it still today in presidential politics. But one factor that has intensified things is the spreading of terrorism throughout the country.

Bubba sees the terrorists as folks who are "different" than Bubba and his friends. We all know that ISIS and the Taliban are the primary (if not exclusive) perpetuators of terrorism; however, recent focus groups do not direct fears of terrorism against just people affiliated with ISIS or the Taliban. Now each and every single Muslim is a terrorist. The majority of Americans agree with Trump – let's ban all of them! Did you ever think you'd live to see a day such as ours? 

Surprisingly, the fear of terrorism has thrown a net over all ethnicities. When we focus grouped people's thoughts about Pakistanis, I was shocked to learn that a sizeable number of the focus group participants believe that there are Pakistan gangs and, of course, Pakistan terrorists such that every Pakistani is suspect. Likewise, they have similar feelings about people of Asian descent. Bubba is somewhat correct in believing Asian gangs exist, but Bubba also believes that there is a proliferation of Asian terrorists infiltrating our country. So Bubba's broad net encompasses everyone; Mexican terrorists, Polish terrorists and of course my tribe, the Irish (even though history does regrettably contain the horrors of Irish terrorists).

With Bubba believing everyone except his family and friends are terrorists, we need to revisit an article I wrote a couple years ago which is still very timely. You can find the original "Immigrant" blog in the Keenan Edge 2 book (p. 131), as follows:

“Lend me your tired and your lonely,” proclaims the Statue of Liberty, but how many Americans really embrace Lady Liberty’s proclamation?

Please don't think anti-immigrant fever has only started during our time. My great-grandfather came to this country as a 19-year-old and married my great-grandmother the third day he was off the boat; together, they suffered extreme prejudice. He was a carpenter who, along with my grandfather, built the home I was raised in. I was fortunate to have my great-grandfather live in the house for my first 10 years of life. My grandfather was perceptive enough to save many of the anti-Irish signage that hung in the windows of many of the shops: “Micks Not Welcome,” “Paddies Separate Entrance.” These signs were hung in my basement playroom and, while I didn't realize it as a kid, I was told the stories behind those signs in order to understand the poison of ethnic discrimination.

For those of you who have been to the Reptile© in Trial seminar, you learn the code for immigrant. I'd love to give it to you here, but I have a policy of not discussing codes on the blog for fear that the Black Hats will get it, so I'm going to talk in generalities. My focus groups have revealed the specific hot buttons for immigrant hatred. You shouldn't be surprised that they think (in their own words): Immigrants suck from the public craw, take jobs away from Americans, breed like rabbits, commit crimes to a higher degree, live among their tribe and don't integrate. However the most poisonous is that, “they don't speak our language.” This is at the epicenter of the hatred.

When you call about your over-the-phone service, you're invited to “press 1” for English and several other numbers for other languages. This tells Bubba those others aren’t Americans because they haven’t assimilated. My great-grandfather spoke Gaelic (which, in my humble opinion is a beautiful language; however, it was prohibited in my household). Knowing that the language is the hot-button issue, I've got one simple rule I've abided by for over 20 years: No client of mine will ever give testimony at a deposition or trial through an interpreter. I will move mountains to see to it that my client learns English. This may sound mean, but in reality, I have found that not speaking English on the part of many of my immigrant clients is because of their fear that they can't learn it. Speaking their native tongue provides a sense of security. But for every one of our immigrant clients who ultimately learns English, we always have a party complete with cake and tacky American flag hats.

We go about doing this either in person or over a video conference if our client lives out of state. We go to great lengths to locate technical schools and local language centers (many of which are church-based) in order to help our clients learn to speak English. If that fails, we'll assign a paralegal to work one-on-one in person or over the phone – whatever it takes, they will speak English. I can't tell you how many clients who, after they learned to speak it, thank me in the office (often in tears) for helping them learn the language and having faith in them that they could do it.  There have been several times when I've actually acknowledged this transition in direct exam:

“Now Maria, when we first met you, you couldn't speak English. Why did you learn?”

Each and every client has a different story to tell. Usually, it comes down to the fact that they understand how important the civil jury process is to them and it's something that they didn't have in their native country; they wanted desperately to tell the story of their case to this American jury speaking English. When you have a wrongful death case and it's the surviving spouse who is giving testimony, speaking in English, they learned in order to help in the courtroom – not because it's a trick, but because it's an honest expression of how we transition immigrants into Americans.

I also detest the term “immigrant.” To most, it has an immediately negative connotation. So I always use the phrase “new American” because that's exactly what my great-grandfather was when he came here, “a new American,” and he was proud of it. I also use the witness stand to dispel the poison created by the immigrant stereotype with the following questions;

"Why do you choose to live in a multi-ethnic neighborhood and not simply a neighborhood of your nationality?

Why do you want your children to grow up with other ethnic groups as opposed to only yours?

Have you ever, or did you ever, consider taking government benefits?"

Their answers to these questions all affirm that they are “new Americans” who would never think about taking from a country that has already given them numerous opportunities they never had before. Years ago, I tried a case in Dallas, Texas, and our focus groups revealed a burning hatred for the immigrant Hispanic client. So I decided to start my jury selection in an unusual way:

“Ladies and gentlemen, I’d like you to think long and hard about this next question: How many of y’all can state under oath without question or hesitation that the first person on your family tree came to this country legally?”

There was a lot of soul searching. Out of more than 60 people, only a handful of hands went up with many of them simply not knowing. I also gave them “permission” (as you see me do in many instances) by stating that my great-grandfather was an illegal immigrant, and I had bonded with my client because he was a break-your-back-laborer much like my great-grandfather. So, in closing argument, I started something like this:

“Ladies and gentlemen, I stand before you as the most thankful lawyer in the U.S. There is nothing more I want to do with my life than to represent people, but I recognize that I'm not fulfilling my dream through my efforts alone. Today, and every day, I stand on the shoulders of my immigrant Irish great-grandfather and my first generation Irish grandfather. My dream would not be possible without their unspeakable sacrifice and, yes, the slings and arrows of mean-spirited discrimination.

“I don't know it for a fact but I strongly suspect that each and every one of you has someone in your family who has given similar sacrifices so that you could stand on their shoulders and live the American dream.

“So it's with a lot of sadness that I look at my client, Jose, who understood that, by coming to this country, he would sacrifice his dignity and his health and he did so firmly rooted in the American tradition of making a place for his family, giving his children and his children's children an opportunity. But the sadness of all this, as you know ladies and gentlemen, is that Jose will never have children of his own because his body has been crippled and he lives in such constant pain that he's living a life sentence – never having the opportunity to create a better world for his children.

“We all suffer when this happens because God only knows what Jose's children would have given this world. We all remember Jimmy Stewart in that holiday movie It's a Wonderful Life and it makes us realize that all of us have a purpose and that purpose effects each and every one of us.”

Like many of my cases, it was a no-offer case and the power of that case not only secured a compensatory verdict, but was the first case in Texas history after bifurcation of punitive damages was mandated because it also yielded a punitive verdict. I know in my bones the ethnic arguments were profound to the jury because after their verdict, all but two of them wanted to talk with me and did so until 8 p.m. that evening on only one subject.

They all thanked me for the reminder that everyone has someone who made great sacrifices for them on their family tree and the hours that we spent talking had nothing to do with Jose or his case. Everyone wanted to tell me the story of their forefathers and mothers and did so proudly and emotionally. And several of them indicated that they had never really thought about it until it was triggered during the trial and after recess they would call other family members in search of their roots. I strongly believe that when I told the jury standing behind Jose that I was looking at my great-grandfather, thinking about what it must have felt like to be a hated immigrant and the sacrifice that followed, for some on the jury, they saw in Jose someone on their family tree.

I didn't have a clue what the Reptile© was at that time, but I know now that it was clearly at work in that Texas courtroom and had a great influence on the verdict.

Permit me to tell you of a great contrast that occurred in my life about 10 years ago when I was honored to be the recipient of one of the 100 gold medals of freedom given by the Ellis Island Foundation, which includes a spectacular gala at Ellis Island with a fireworks show on the ferry back to New York surrounding the Statue of Liberty. I am not embarrassed to say that standing on that platform with 99 other accomplished Americans – all more accomplished than me but all from different ethnic groups – it was one of my proudest moments. But I also understood it was not my moment; I received that honor and told the audience it was on behalf of my great-grandparents and grandparents.

As I was going back to my apartment I had a “new American” cabdriver, an Ethiopian who shared with me that he had saved up enough money to have three of his children join him in America and was working hard to get the other two passage. But I tell you this story because as we were stopped at a stoplight, the poison of ethnic hatred came out. A car full of mean-spirited people started yelling at my cabdriver, “Go back home.” I usually spend 10 days or so every month in New York and find that, while it is the ethnic melting pot, it still has burning ethnic hatred.

As trial lawyers we must be aware of this and deal with it.

The poison of the ethnic bias can take many forms other than fear and loathing. For example, I found that in a case where I was representing a deceased Pakistani fellow that there was local admiration for the Pakistani community; however, the poison came out when the focus group told me that Pakistanis don't grieve over the death of a loved one, they celebrate it and look forward to joining them again wherever the Pakistani heaven is located. (This notion is utterly ridiculous, but you have to deal with it anyway.) Likewise, I had another wrongful death case involving a Korean. Once again the local community admired the work ethic of the Korean and had no fear or loathing, but when it came out in focus groups that this was an arranged marriage where the man had all of the choice and the woman had none, it affected whether to compensate the surviving wife. Mean-spirited comments came out, such as: “Well now she'll be able to live her life how she wants; she didn't chose him to begin with.” This is also preposterous, because in working with many Koreans who have had arranged marriages I've observed a deep love and admiration.

I want to end by telling you about one more case, where I represented a deceased Hispanic fellow. The trial was in a county where the jury was entirely made up of African Americans.  Now I heard that there was strong bias by African Americans towards Hispanics and vice versa, and I was able to confirm this through a number of focus groups.

But I want to tell you the one distinguishing feature: How low the socioeconomic position of both groups is what dictated the degree of bias and hatred. The focus groups told me this was because, at the lower level, they compete for the same jobs, they perceive each other as committing a lot of crimes, and there is a lot of fear between the two. Ironically, this bias evaporates the higher you go on the socio-economic ladder. For example, an African American family who can afford a housekeeper or a landscaper loves and admires the Hispanics and vice versa. So this translated into my approach to jury selection (which the defense was oblivious of) and rendered me a jury of African Americans who were well off and accepting of Hispanics.

I could write more, but I hope that this will stimulate your thoughts and give you some tools to overcome this poisonous bias and prejudice that still exists in this country.

Bottom Line: If you ignore the bias and hatred, you do so at your own peril and your verdict will be severely affected; however, if you use the tools of the Reptile© you can level the playing field and secure a good verdict.

By Joey McCutchen & A. Tyler Hudgens

Note from Papa Don: As you know, one focus of the New Frontier is to spread the word that we own the law and our techniques are rock solid. This has three legs:

1. Open seminars to include State Bar seminars with a Reptile©-Lite, now changed to Reptile© in Practice, content;
2. Publication of articles in any forum that will publish them; and
3. Creation of a hard bound book Essential of Tort Law with the Black-Letter law in States.

Last fall, three Arkansas stalwarts – Joey McCutchen, Jim Lyons and Paul Ford – agreed to host the first Reptile© in Practice seminar. Lots of hard work went into it, but they set the gold standard (as I knew they would) and they have set the Arkansas Trial Lawyer RECORD for a seminar. We all owe a debt to these three and the other speakers at this seminar. Here’s an update on how the event went:

The Arkansas Trial Lawyers Association (ATLA) hosted a CLE seminar on Jan. 29, “Black-Letter Law You Have Forgotten.”  This CLE was billed as “Reptile©-Lite” and aimed to introduce Arkansas trial lawyers to the Reptile© while emphasizing that it is grounded in the black-letter law of the state. The excitement surrounding this seminar was evident in the turnout: 77 members of ATLA attended the event, making it one of the best-attended CLEs ever.

Defense lawyers are trying to beat down the Reptile© by convincing judges that it is inconsistent with the law. Through this seminar, ATLA aimed to pull back the curtain on this tactic and show that not only is the Reptile© consistent with the law, but the law is also on the Reptile’s side.  As was emphasized over and over, “We own the black-letter law.”

Joey McCutchen emphasized at the beginning that the Reptile© is a symphony, not a buffet. He encouraged anyone who was interested in utilizing Reptile© tactics to come to one of the Keenan Ball College (KBC) courses to get the full immersion in the Reptile© paradigm, which is necessary to employ the Reptile© to its full potential. Joey noted that the purpose of this particular seminar was to introduce lawyers to the basics of the Reptile© so that they do not go into court with half-formed snippets and make bad case law, ruining it for the rest of us.

Gregg Luther spoke first on the topic of the black-letter law fundamentals that undergird the Reptile©. The centerpiece of black-letter law in torts is Palsgraf v. Long Island Railroad, and Palsgraf was likewise the centerpiece of Luther’s talk.

Palsgraf established the principle that foreseeability defines a defendant’s duty. Therefore, the plaintiff’s lawyer must establish that his client was a foreseeable victim. Arguing foreseeability allows us to spread the tentacles of danger. Gregg went on to show that a lot of Arkansas case law requires foreseeability to be proven as an element of negligence and that the Model Jury Instructions practically require us to spread the tentacles of danger as an element of proof.

Len Gabbay spoke after Gregg, covering Reptile© voir dire. Len emphasized the three rules of voir dire:  1) bonding, 2) rat killing, and 3) being genuine and real.  Len spoke about using the passion question in order to bond with the jurors. When the jurors feel like they are bonding with you, they are more comfortable and more truthful. When jurors are more truthful, you can find your rats more easily. Len emphasized the need for trial lawyers to go off-code during voir dire so that the jurors will trust them. Voir dire is also the time to begin emphasizing to the jury their role as the conscience of the community, which tells each member of the jury that their collective verdict means something for the community as a whole – and not just our clients.

Mindy Bish covered winning a case in the opening. She emphasized the need to take the time to dump the “lawyer speak” and make an opening statement using simple words with short sentences, so everyone can understand it. Returning to the theme of foreseeability, Mindy starts her openings with a statistic showing just how foreseeable this type of harm is. She also uses safety rules to show the jurors how this kind of harm could be prevented. In this seminar, she discussed the seven rules to use in formulating these safety rules. She then took the group through the Ball opening format, step by step, to show what to do (and not to do) when formulating an opening.

Danny Ellis instructed the group on direct and cross examinations. Danny continued the theme of foreseeability in describing how to conduct direct examination. Reptile© lawyers must ask questions that go to foreseeability. When questioning experts, they must establish the maximum range of harm. Reptile© lawyers should also prove liability through the defendant when possible. On cross-examination, we have to be off-code and perfect. When it comes to defendant experts, we should either hijack or disqualify them.

Paul Ford covered closing arguments. Closing arguments, once again, show the necessity of being off-code. We must be subtle, not telling the jury what to do and not marshalling the evidence. We must gently remind the jury of what they have seen and heard. An important tool of Reptile© lawyers in Arkansas is Model Jury Instruction 104, which allows jurors to use their own personal observations and experiences in deliberation. Arkansas has great case law that emphasizes the role of the jury as the conscience of the community. We also have law that suggests that lawyers may walk right up to the line of the Golden Rule and that allows arguments telling the jury that they can send a message. Paul emphasized that empowering the jury is one of the most powerful things a Reptile© lawyer can do. Empowering the jury allows it to create a legacy in its community by saying that the defendant’s conduct will not be tolerated.

Judge Chip Welch rounded out the day with a presentation on ethical considerations when using the Reptile©. Judge Welch reminded us that lawyers must always obey the rules and law of the tribunal in good faith. He also reminded us that our rules of ethics prohibit us from alluding to any matter that is not supported by evidence, or voice any personal opinions as to culpability. As friendly as Arkansas black-letter law is to the Reptile©; however, those ethical considerations should be relatively easy for Reptile© lawyers to fulfill.

The survey taken among attendees after the seminar indicated it was a resounding success.  Every speaker was given high marks for their presentations, and the CLE course received an 86.36 percent rating as “Excellent” and a 9.09 percent rating as good. Not one attendee marked the course as “Fair” or “Poor.”

Here is a sampling of the comments received about the course:

• “Cutting edge topic that was made accessible to average Arkansas attorneys…”
• “The speakers truly believe in the Reptile© and it comes across.”
• “Practical information that is useful, citations to Arkansas law.”
• “Speakers were great.”
• “This was incredibly well done…”
• “Loved learning how to apply technique.  We always learn legal stuff but no application.  This felt applicable.”
• “I do not ever give the highest rating, but this seminar was just that good.”

Some comments even suggested a bigger room in the future, to hold all of those woodpeckers who were interested in learning more. All in all, the Arkansas Reptile© seminar was a success.  ATLA hopes that its experience in hosting this seminar can help trial lawyers in other states provide something similar and introduce more and more attorneys to the Reptile©.

By Don Keenan

Of all the courses at the Keenan Ball College, the feedback we get about the mediation course indicates it's the biggest game changer. Of all the courses, this one’s a game changer because whatever preconceptions the students come with, the class gives them a completely new experience and a completely new way to handle the settlement process. The difference is like night and day or black and white.

Some graduates of the course have described it as “smash mouth.” Others are a little less dramatic, describing it as taking ultimate control of the settlement process. In fact, at the beginning of a mediation class we went around the room and asked each student what his or her No. 1 failure was in terms of completing the case. This of course was Page 1 out of the System Failure Analysis template: Identify the failure and set up how one can prevent it. So we spent the next two days aimed at “how to prevent loss of control.” It worked.

FEAR

After 40 years, I still look forward to experiencing new things and pushing the envelope. However, what I'm about to tell you next is a story that I can only hope to repeat – but don't think I ever will. I tell you the story because it illustrates more profoundly than words how actions can prompt survivability in the Taliban and Black Hats.

First let us all understand one of the first major truths of settlement: The opposition is not going to settle unless they fear something. They either fear you or a big verdict, or they fear you uncovering a piece of evidence that you don't now have. Believe me when I say that fear in some form cuts the check, it ain’t them thinking they are doing the right thing.

THE STORY

South Carolina has a bizarre form of medical malpractice insurance. It's essentially a state-run fund that operates by the fund assessing on an annual basis, with each covered doctor in the state an assessment.  The assessment is based upon how a normal insurance company would go about collecting premiums, specifically making sure that the fund has the necessary cash on hand to pay out projected claims.

As such, the fund hired former insurance folks to help assist in underwriting, manage the risks and settle cases. However, these insurance risk folks actually work for a governor-appointed board. The statutory purpose of the board is to supervise and make sure the risk management folks do their job. Their ultimate responsibility is to make sure the fund don't go broke.

South Carolina has always been a favorite venue for Papa Don. The state actually has judges appointed by the governor who have actually tried cases. Furthermore, given that South Carolina is a relatively small state in terms of territory, the judges are assigned to sit all over the state (not getting entrenched in local politics or sentiments). It’s a state that still bans attorney-conducted voir dire, although I've been able to request voir dire and successfully get it in all of my cases.  Nonetheless, the South Carolina bench (in my opinion) does a better job at voir dire than most plaintiff's lawyers around the country.

South Carolina has always been a fertile verdict ground for me. Although everybody else was surprised, I wasn't when a jury in a rural county rang the bell of justice for $14 million in a no-offer medical malpractice case.

Thank goodness I faced a really tough trial judge. Not tough in the sense of being unfair, tough in terms of making sure his record was bullet proof. Remember judges have Reptile© survival instincts (just like anybody else) and a judge's worst fear is the humiliation of being reversed.

After the verdict and the motion for a new trial was denied I did what I always do on big verdicts: I reached out to former appellate judges to get their read on how the appellate court would rule. In this case, I had three retired appellate judges tell me that the record was solid but the chances of reversal was near 70 percent because the verdict was just “too big.” So they strongly advised settling our case short of a decision.

Being Irish and hardheaded I just couldn't bring myself to disrespect the jury verdict by accepting less – especially in the face of a solid record.

Of course the transcript was delayed, then the ultimate transmittal of the record to the appellate court was delayed, and the Black Hats requested an extension to file the appellant's brief, which was granted and caused even more of a delay.

I represented a tragically brain-injured child who was desperately in need of rehab and thus the case needed to be over.

About this time, I asked my local counsel to see if the board of that risk fund really had any input and whether the case got settled or a decision would be required. My local counsel (a very solid trial lawyer of considerable skills) reported that of the two board members he talked with, neither knew a thing about the case. By that, I mean they didn't know about the decision to “no offer” the case and ultimately didn't know about the $14 million verdict.

Then I came to understand that this board, appointed by the Governor of South Carolina, was a typical political board made up of auto dealers, pastors, retired members of the general assembly (legislature), and a cross-section of political donors. Being on a governor-appointed board looks really good on your CV and, ultimately, your obituary; everybody in your neighborhood or country club who knows the governor sure enough appointed you to be on a “very important board.” …As it turns out, that board rarely met and did virtually no oversight of the staff. How would they?  Not a single one of them had any experience in managing claims or any aspect of risk protection.

The good news came one day, as my local counsel told me that there was an internal report done by a governmental agency akin to the General Accounting Office (GAO) of the feds into the operation of this fund. My local counsel was not without access, because when the U.S. Department of Justice previously sued the South Carolina Senate, it was my local counsel they hired to defend the state Senate (successfully, I might add).

Well, thanks to the local counsel we got our hands on this report. It blasted the entire operation as having no oversight and the current status of the fund put them one verdict (a small one) from insolvency. This was important because under the rules formulating the fund, the state taxpayers would be on the hook for anything not collected from the doctors.

The report used language like, “Violating a fiduciary duty to the doctors as well as the taxpayers” and recommended a re-composition of the entire board. In other words, fire them and replace them with folks who knew what they were doing. But the internal report went nowhere – it wasn’t on the upcoming legislative agenda and seemed destined to be filed away into obscurity.

I felt strongly that public exposure of this “fiduciary violation” was not something any of the board members would enjoy. First I considered reaching out to the board privately, to see whether I could get their attention enough to look at my case and do the right thing. But I figured all they would end up doing is lawyer up against me, and we’d be stuck with yet another delay.

Instead, I did what I do best: I sued ‘em. I sued each of the board members individually and got the court to permit an independent process server to slap each suit.

You remember the scene out of Godfather II when Michael is at the christening of his child in church while his posse is out there gunning down the Dons of the Five Families, one getting a massage on a massage table and another coming out of church. That image of coming out of the church created a profound imprint on me, such that I knew I'd hit the pinnacle of my career when it was reported that one of the board members was served, you guessed it, coming out of church.

Service occurred over a Friday, Saturday and Sunday and, without question, panic was in the air. News reporters were calling the board members, neighbors called the board members they knew to ask them, “What is this?” Several camped out on the front porch of my local counsel, pleading for him to do something.

Each member pled “I didn’t know” and begged, “What can we do?” [As a side note, I didn’t really think about the overall ramifications of the suit but I understand several of the board members who were business owners with outstanding loan renewals began to fear that they would be put out of business.] Getting back to the pleading board members – what could they do? Our response was simple: Pay the verdict and the interest amount and we'll dismiss the suit.

I'm happy to report the case was settled for the full verdict and interest within 10 days of the fiduciary lawsuit. Although it was not a condition of dismissal I did publicly congratulate the board members on doing the right thing. I acknowledged that they had no knowledge of the case, the no-offer, or even the verdict itself; therefore, they could be expected to do the right thing in the future.

There is no question in my mind that the Reptile© sense of survival in those board members is what helped my case settled for full value for my young client. You see, the board members never knew about the case, didn't know about the verdict and it wasn't until their own survival was on the line did they pay. I later learned the money came from a governor-approved diversion of taxpayer money into the fund; the fund was darn-near empty at the time of the payment. 

The fund was then assessed for each doctor in the state (which led, of course, to the following year’s medical malpractice crisis in the legislature). This occurred ironically at the same time I was trying a case in the South Carolina State Capital. Of course my name and the $15 million dollar verdict were prominently mentioned as the perpetrator of the medical malpractice crisis. I learned this as I was walking from the hotel to the courtroom during trial, and passed a newspaper vending machine where the issue was front page. Thankfully, it didn't influence the jury, who wound up providing a $4.2 million verdict on my case at the time.

See an example of the court complaint I filed against the defendant in my case for the Bartholomew family by clicking here.

These experiences have taught me many great lessons. When I work with my referring attorneys we strive to locate that button – the button, which, if pressed correctly – which will ignite the Reptile© in the Taliban. These are also lessons we teach at the Keenan Ball College.

Bottom Line: Never underestimate the power of the Reptile©, even if it takes you a while to find it.

By: MICHAEL PETERSON, KEENAN LAW FIRM

This month’s Reptile^© Superstar is Nicholas Naiser. Nick started his personal injury firm in 2010. His firm primarily focuses on wrongful death, catastrophic personal injury, medical malpractice, automobile accident, and employment law cases.

Outside of the law, Nick enjoys spending time with his wife, son, and their two dogs. Nick has sat on the board of directors of the Epilepsy Foundation of Kentuckiana and served as a member of the University of Louisville's College of Business Alumni Council.

INTRO TO THE REPTILE^©

Around 2011, Nick’s associate provided him with the Keenan Method to Witness Preparation DVD. Nick was blown away by the richness of the content provided in the DVD. Nick went on to purchase the REPTILE^©: The 2009 Manual of the Plaintiff’s Revolution book. Nick remembers how the jury reacted after his first Reptile^© case. The jury spoke to him after deliberations, and told him that their verdict would stand as a symbol of good in the community as it would deter the defendant and any future individuals from engaging in negligent behavior.

Nick wants to use his autopsy to inform the Reptile^© community of two cases where he was able to display the power of the Reptile©. The first case is a dental malpractice case.

FACTS OF THE CASE, No. 1:

Nick’s client had been going a dentist from 1999-2009 for regular cleanings. In 2005, the Plaintiff developed gum disease, which went undiagnosed until 2009. During that time, Nick’s client was seeing his dentist three or four times a year. The Plaintiff’s gum disease was visible via x-rays and dental records created by the dentists. The x-rays and records showed increased pocket depths and bone loss, the two most common signs of gum disease. Despite numerous visits, the Plaintiff’s dentists never informed her of the gum disease, nor took any action to treat it. As a result, Nick’s client ultimately had to have 14 of her teeth removed.

The Defense argued that they did not overlook her gum disease; they claimed she had an aggressive form of gum disease, which left no room for early detection. The Defense did not provide an offer until trial, and even then, they refused to cover the Plaintiff’s medical bills. The Defenses’ ace in the hole was the Plaintiff’s personal history. Nick’s client was a schoolteacher with a history of illegal drug and alcohol use. Unfortunately, many of these habits continued throughout trial. In light of this, Nick was not optimistic about going into trial and was most concerned the evidence of drug use would make his client unsympathetic – making a large verdict unlikely.

REPTILING THE CASE:

Voir Dire:

The Judge gave Nick 30 minutes to conduct jury selection, which was not enough time for Nick to touch on all of the issues he wanted to address. Instead, Nick used Voir Dire to address the 800-pound gorilla in the case: During jury selection, he addressed his client’s marijuana and alcohol use. He asked the jury whether they would hold that fact against his client. A few of the jurors chuckled. It was not until after the case that he learned that the jury’s perception of individuals who smoke marijuana in this venue was no different than someone who drinks beer.

Opening:

Nick’s Opening was short and to the point. His bumper sticker was: My client lost her teeth because the dentist missed her gum disease.

Nick called his client’s dentists to the stand first. During deposition, Nick proceeded to go through the records of each visit that his client had with their office from 2005-2009. After every record, he asked whether she had gum disease. Each of them said “No.” Nick posed the same questions at trial; however, this time they stated that his client definitely had gum disease from 2007-2009, but they were managing it. Nick, therefore, impeached the two dentists about 20 times, which caused the dentists to lose all credibility with the jury.

As we know, the Reptile^© hates liars, because liars threaten the survival of community. According to Nick, the Defenses’ dishonest testimony set the tone for the whole trial.

The Defense also brought in a couple of experts to testify on their behalf. In light of the Defense expert’s testimony, Nick brought in several medical articles and well-respected textbooks that touched on the types of gum diseases and the ways to check for gum diseases. The Defense’s expert testified that a dentist could simply “spot probe” the mouth in certain locations rather than check every area of the mouth. Nick challenged his testimony by revealing to the jury that the medical literature stated that a dentist is supposed to check the entire mouth when looking for diseases. One of the books Nick brought even had an illustration on its cover that showed a dentist must check the whole mouth, rather than “spot probe.” The Defenses’ expert stated that he did not care what the literature said, because that was not the medicine. The Defense stubbornness only caused the jury to disregard his testimony and place him on-code. The jury could not understand how an expert who relies on peer-reviewed medical literature would reject the soundness of the literature simply because it disagreed with the Defenses’ theory of the case.

Nick had two experts testify at trial. One was a general dentist and the other was a periodontist, or a gum specialist. Both were off-code. They spoke in simplified terms, they were personable with the jury, explained their testimony like a teacher, and used a simple flow chart to explain what went wrong and how the defendant should have fixed it.

Closing:

During his Closing, Nick hammered home the fact that his people in Louisville should not have to drive to Nashville (where Nick’s experts practiced dentistry) in order to get safe dental care. He told the jury their verdict would be the gauge for how much this community values safe dental care. He talked about the Defenses’ lies and reiterated how they went off-code during trial. Nick touched on the unsavory habits of his client and reminded the jury that this case was not about his client, but the negligence. He repeated his bumper sticker to the jury, and informed the jury that they had the opportunity to tell them how their actions affect their community. The jury returned with a verdict of $330,000, the largest reported dental malpractice verdict in Kentucky.

FACTS OF THE CASE, No. 2:

The second case took place in Oldham County, Ky. This case concerned a family that had operated a rock quarry since the 1970’s. In the mid 1990’s the family stopped mining and let the mine fill up with rain water. In 2010 they opened the quarry as a place where people could go swimming at a cost of $10 per person.

However, the community knew that people were misusing the area; taking alcohol and drugs up to the quarry, getting drunk and high, and then driving away. In 2012, a man in his mid-20’s went to the quarry and drank alcohol all day. The police began tailing his vehicle as he left the quarry and a police chase ensued. The man ultimately sped through winding country roads, crossing the centerline, and hitting a motorcyclist head on.

The impact of the wreck caused the motorcyclist’s left leg to essentially explode. The Defendant was traveling about 50 mph. Nick’s client lived for only 66 days before he died in hospital. Nick’s theory of the case was that the family who owned the rock quarry allowed people to go up to rock quarry get drunk, and did nothing to stop them. The Defense argued that they did not allow drinking on their property, and kicked out those who did.

Jury selection:

Nick’s theme for the case was profits over safety. During jury selection, he asked the jurors whether they felt it was okay to break the law to make money. None of them raised their hand. Nick analogized this case to the Kentucky Derby. He explained to the jury that people tend to drink at these types of events and bring their own alcohol, even though they are not supposed to. Nick wanted to hammer home that it is foreseeable that if an establishment allows you to drink on their premises, then people will do exactly that.   

The Defense did not come across well with the jury. Most of the evidence was not in their favor, and they continually lied to jury. The Defense testified that they did not promote or allow alcohol on the property, and they are unaware of wrecks that occurred by individuals leaving their property. It was clear the Defense was lying, and Nick had all the ammo at his disposal to reveal their lies to the jury.

Nick had the Defense testify to a music video filmed by a local band in 2014 at their rock quarry. The local band, Villebillies, went up to the quarry to film a music video called “Fill My Cup.” The video showed one of the bandmates handing out bottles of moonshine in the video. The owner of the rock quarry continued to deny that drinking took place, either on the day the video was filmed or on any other occasion. Moreover, even if it had occurred the Defense argued that the moonshine had a seal on the bottle, and thus there was no proof that liquor was inside the bottle – in essence arguing that they had no way of knowing whether or not people were drinking on the property. Furthermore, the rock quarry owner attempted to deflect blame on everyone else but himself. The jury believed the Defense was trying to make disingenuous arguments.

Furthermore, Nick had evidence of several instances where individuals left the quarry inebriated and ended up in car collisions. Nick invited three police officers to testify to multiple occasions where members of the community called the police about drinking related issues at the quarry. One officer discussed how he had to come to the scene during an incident where one individual had gotten into a DUI wreck with a pregnant woman. Like in Nick’s first case, the jury wrote the Defense off as liars. The Defense told them that they did not promote or know of incidents where individuals who left their property got in car wrecks. However, the testimony of Nick’s witnesses revealed the truth.

In this case, the jury had the option of placing blame on three defendants. They could place blame on the drunk driver, the owner of the drunk driver’s vehicle, or the owners of the rock quarry. Though the owners of the rock quarry were the furthest removed from his client’s death, Nick believed the jury placed blame on them because of the community danger. Whether it was the story of the pregnant woman or Nick’s client, the jury knew that if they did not deter the quarry’s actions then they were placing themselves and their loved ones in harm’s way.

Nick addressed this in his Closing when he told the jury this was their opportunity to change their community for the better by sending a message to Defense that their negligence would no longer be welcomed in the community. 

The jury placed 50 percent liability on the drunk driver and 25 percent on the car owner who knew that the driver had two previous DUIs. The jury also placed 25 percent on the rock quarry owners, along with punitive damages.

The jury returned with a verdict of $10,528,211.35.

By focusing on his bumper stickers, placing the defendant on-code, and revealing the Defendant’s lies, Nick was able to awaken the Reptile^© within each juror. By doing so, Nick gained impressive verdicts for his clients and demonstrated just how powerful the Reptile^© can be in any case.    

By Don Keenan

Now comes the time to bring forth my 16 power words for 2016, as I've done numerically for the last several years. (See the original Power of Words in the Edge, 1^st edition page 73; Power of Words for 2011 [courtesy of Frank Luntz] in Edge 1^st, page 80; and you’ll find the Power Words for 2012, 2013, 2014 and 2015 in the Edge, 3^rd edition [pages to be determined upon printing]).

Let me revisit the purpose of the list.

A “power word” is just that, a word (or a couple words) that has power. Most, if not all, power words are emotional; they immediately conjure up images that help you depict the word itself. Understand that the Reptile^© brain is the source of these images, and these images are imprints we have carried with us for a long time that will instantly flash within our consciousness when the word is spoken.

As with former power lists, the words will be helpful during your depositions, voir dire, openings and, of course, closings; I use them all the time and, because there's so many of them now, I frequently go back and review past lists. Oftentimes I find words I have strayed from, and need a refresher.

One final note before I begin the list: I have test driven this year’s list at the Cutting Edge Reptile^© Convention, which was held in Dec. 2015 at our luxurious Costa Rica venue. I also test-drove the words at a referring attorney workshop on premises cases. (If you’ll recall, that I break my referring attorneys into case categories of seven; within each workshop are eight to 10 lawyers with a case in that category.) Everybody comes to my beach house at Seaside at least twice a year for an intense all‑day (often into late night) exchange of ideas, which includes role-playing, demonstrations, etc. At both the Costa Rica convention and the premises workshop, I laid out the words and why they made the list. Even more importantly, I included suggestions on how to use them. Then I called up folks at random to make closing arguments using all the words. (It sounds more difficult than it is. I’ve rarely if ever had anyone NOT be able to embed all the words and, in many cases, the demonstrations are excellent.)

So without further ado, let me introduce the 2016 list of power words:

1. DREAM

In simplistic form, this word will most certainly conjure up good feelings. Most have a smile on their face when they first hear the word dream; it’s a positive, inspirational word (because a bad or negative dream has its own word, “nightmare”).

Politicians and leaders frequently use this word. Many times, dreams are the prominent theme of the speech – we all recall Martin Luther King Jr.’s Washington speech, “I have a dream. Understand that we can all use this word with the same type of cadence that Dr. King did.

2. TROUBLES

As an Irishman, to me this word means a lot. When we refer to our history, it is often in turbulent terms, with death and starvation. The Irish most certainly refer to this as some of their “troubles.” The world knows of the divisive nature of North Ireland and for an Irishman the common terminology to describe this is, “The troubles in the North.” To the Irishman this word conjures up horrific imprints of violence, bombings, assassinations and hardship. 

Clearly we Irish don't own the word “troubles.” We can use it in of our cases — but keep in mind that a word or two goes a long way. For example, we can say that a hospital had problems or a manufacturer had complications but I prefer the word “troubles” because it conveys long-standing, chronic problems. 

3. LOVE

I’m a student of all great trial lawyers and certainly that list must include Clarence Darrow. I am struck that virtually every closing argument by Darrow included the word love; in fact, he often said, “I subscribe to the book of love.”

Admittedly, when you use the word love, it gets close to the Golden Rule because at its core the Golden Rule preaches that we must love everyone and care for others as we care for ourselves.

There is no greater word to convey deep affection and caring than the word love. Don't be afraid to use it. 

4. FOCUS

Focus. It’s a word we often hear in our society today. It conveys the imprint that there is one single thing that is very important, which we must consider above all else – disregarding any peripheral matter. To focus means we have the No. 1 issue concern clearly on the table. 

5. BOTTOM LINE

Y’all probably have noticed I end nearly every one of these blogs with the “bottom line.” It’s that punch in the gut, take home message. In previous lists I have included “lighthouse terms.” This is something I’ve coined to illustrate a word or phrase that wakes up the audience and directs them to listen in on what you’re saying. They’re drawn in like a beacon, because they know what you’re about to say next is very, very important. Past examples of this have been words like, “if you only remember ONE thing,” and “the simple truth is.”

We can’t expect Bubba to listen carefully with undivided attention to every single thing we say (even if it’s only during a 20 minute opening statement). His mind will wander and he’ll reflect back on what you said a few minutes ago; regardless of what he’s thinking about, the fact remains that he’s not concentrating at that moment on what you're saying.  Use “bottom line” and Bubba immediately wakes up and (let’s go back to power word No. 4) he’ll begin to “focus” on what you’re saying again. Bubba says to himself, I may not understand all the stuff this lawyer is saying, but when he/she tells me this is the “bottom line,” then I know it's important and I'm going to listen. 

6. TRIAL LAWYER

I’ve written blogs about this very thing, from the standpoint that we should not run from who we are. We should be proud! We should tell the jury we are a trial lawyer and we accept our heavy burden to represent our client fully!

But I must credit our adversary, the evil genius Fred Luntz, who gave us Bubba's understanding of what “trial lawyer” means. In his book Words that Work, he says that if the politicians who pay him loads of money to tell him the words they should use, Frank says the word lawyer does not demonize us. He explains that everyone has a lawyer or knows a lawyer and when (not if) we have legal problems, it’s the lawyer who saves us.  He goes on to say that you cannot demonize us by saying “trial lawyer,” because Bubba understands that Abraham Lincoln was a trial lawyer, Clarence Darrow was a trial lawyer and, of course, Atticus Finch was a trial lawyer. The term “trial lawyer” is indeed lofty, notable and good. 

So don't run from who you are, use this term throughout your case – so long as you do it with your head held high and proud. 

7. TOLERATE

Anyone who’s been to a Reptile^© seminars or a Keenan Ball College course knows the power of this word. You’ll recall that when you’re eliciting Bubba’s expectations during voir dire, you do so with examples like the following:

Your expectations that tractor-trailer drivers will be safe, do you believe you deserve that?

Your expectations that tractor-trailer drivers will be safe, do you believe you have a right to expect it.

Finally, you have expectations for tractor-trailer drivers to be safe; will you tolerate not having that?

The word “tolerate” simply nails down the extreme importance of whatever issue you're trying to drive home. 

8. MISERY

Under anyone's view, word misery is something no one wants. It's a term that describes the very worst. The term conjures up horrible images that no one wants to experience.

Let me expand for a minute: I once taught in a referring attorney beach workshop that these terms are not used once; they can be the basis of your whole case, as you tell your client’s story. I asked some of those referring attorneys to pick out a word or two, and I’d show them what I meant. “Misery” was a word they selected, so I got up and went on for about 10 minutes.

I described a client’s situation by starting out, “Let me tell you what misery is…” In my example, I went on to describe that misery is not knowing whether you’ll have a roof over your head much longer, not knowing if you can feed your children their next meal, not being able to stand on your own two feet. Misery is when your spouse looks at you and she sees half or less of what they married. Misery is the end of the road. Misery is when it just can't get no worse. Think of how this can be demonstrated; how a word can anchor the story.

9. PRACTICE WHAT YOU PREACH

When did you first hear this term? I’m betting it was when you were a little kid. I’m also betting that when you first heard it, you liked it, because using this term points out sure hypocrisy. It’s a great term to use against hospital policies and procedures, or a manufacturing plant’s safety rules, or a municipality who says they care for the little children in the community but yet their playgrounds are danger zones. You can get a lot of traction with the term, so work on it and try to embed it in all of your cases. 

10. DOWN WITH IT

Admittedly, most baby boomers won’t have this term in their nomenclature. I certainly didn’t; at least, not until I started to realize that it’s used often by 20-somethings, 30-somethings and even some 40-year-olds. It means “are you okay with this?” Are you down with it? It’s the baby boomer equivalent of dig it, groovy, neat, etc. 

In Costa Rica and at the referring attorney beach workshop, my younger crowd got a major chuckle out of me using this term. For some reason it gave them great delight; however, what it conveys is important – I’m a man who speaks to all generations in whatever language is necessary. I now like that term and use it often.

As an aside, this was another power word the referring attorneys asked to use as a story-builder. So I used the acknowledgement that the term was not from my generation, and said the following:

“There's no question, ladies and gentlemen, that the great strength of America has always been and will always be diversity. We're a melting pot. Our family trees trace back to many different countries and many different experiences. It goes without saying that each generation has its own music and its own things that are popular.

Take for example the phrase ‘down with it,’ which is clearly not a phrase from my generation – but my generation had similar words that meant the same thing. We, in America, as diverse as we are, blend together and that blending brings us strength. In the final analysis, that's what a jury is: A collection of folks from the community from subdivisions to high rises, trailer parks to apartments; a diversity of educational backgrounds, work experiences and life experiences. 

At the end of the day our justice system is what Thomas Jefferson proclaimed over 200 years ago, ‘justice by the people,’ and the people at its core are diverse. At the same time, many of us have the same goals and aspirations for our lives. John Kennedy said it best in his first and only inaugural address, ‘We are all citizens of the same planet and we all cherish our children and wish to make a better place for them so yes we are different but yes we are the same.’”

11. JUSTICE BY THE PEOPLE

I was surprised to realize I’ve never used this term on any previous power words list. I can’t remember a single closing argument where I have not included the term ‘justice by the people’ and used it in the same manner that I just outlined in my example in No. 11.

We live in a time where 99 percent are average and 1 percent has true meaning and traction.  Virtually all of my juries have been in the 99 percent. They're just regular people; they’re not mega-wealthy or powerful. When we talk about our vote in an election meaning little or the fact that so many bad things can happen in our nation from Wall Street to Main Street, none of us feel like we can have any effect. We're simply victims.

However, when the day comes that an average citizen takes an oath to be on a jury, the whole situation changes. They look around and they see 11 other people that are just average folks like them. Sooner or later it will sink in that together, for the first time, these 12 people on this jury are going to make a difference. Each vote matters and they can change the status quo. 

Nothing is more reptilian than that.

12. YOUR TIME

No matter what materialistic things we've acquired in our lives, nothing is more important than our time. My time – it’s an opportunity to think how I want, do what I want (even if that’s to do nothing it’s okay, too, because it’s my time). Our Constitution guarantees all of us the right to pursue our happiness. Mind you, there's no guarantee that we will obtain happiness, but we sure enough have the right to pursue it. Our pursuit of happiness is on our terms and during our time. 

13. CONSEQUENCE

Boy, do I love this word. Many of you have heard about the trial judge in Boston who put the tightest dog collar on me ever, of any judge in my career. He ruled I could not use the word “responsible” or “accountable.” He thought those words were inflammatory and were intended to incite (in his words) “the Reptile^© in the case.”

After he banned those words, I was taking my nightly journey to the outside cigar bar down the street from our hotel and set about to conjure up words I could use to replace responsible and accountable. I actually went into the book I've been writing for several years on the topic of words. Just like Gomer Pyle said, “Shazam!” There it was right in the pages of my book’s draft: “responsible, accountable and consequences.”  I actually wrote in the book that consequences is a stronger word because it immediately implies that something has been done wrong and the person must stand in and be held accountable. For that reason, in my opinion, it’s a far more powerful word than accountability.

So I went about using the word consequences in trial to the satisfaction and joy of the judge. Truth be known, I had more joy in using the word than the judge had in hearing it. 

14. NASCAR FAST

Regardless of whether or not you are a disciple of the NASCAR circuit everybody knows the term NASCAR fast means really, really fast. Like, 200 miles per hour fast (or more). When you’re describing a speeding motorist, or a speeding tractor-trailer, then you want to label the driver as driving “NASCAR fast.” Everyone knows it’s okay to drive that fast if, and only if, you’re actually a NASCAR racecar driver. But nowhere else! By definition, off the track, to be NASCAR fast is to be dangerous.

I've even used the term NASCAR fast to describe the “conveyor belt” that happens within a doctor’s office when he’s seeing 30-someodd patients in a single day. It's a fun term with a lot of power and it gets the job done. 

15. DEPENDENCE

No one wants to be dependent on anyone, especially if the dependence is for normal, every-day matters like feeding yourself, bathing, getting in and out of bed, using the restroom, etc. There is no way to put a good spin on the word dependence. So, I like to say that the defendant caused my client to be in a “world of dependence” on others, for everything. In the courtroom, we’re there depending on the jury to hold the defendant to the consequences of their actions and to make this right. 

16. DIRT SIMPLE

Clearly this conjures up images of something that is ground zero simple. You just can't get more simple than dirt simple. Let your imagination roam to all the places you can use this powerful imagery word…

I'm often asked why the best speakers on the trial lawyer seminar circuit are often southerners. I've also been asked why southern trial lawyers can go anywhere in the country (New York City, Santa Fe, New Mexico, Omaha, Nebraska, it doesn't matter where) and do well – whereas other lawyers, with all due respect, don't. I may be wrong about this but in studying myself and other southern trial lawyers I've come to believe that we are great storytellers. We can conjure up emotion and imagery and a lot of it comes from the words we use. When I was in southern California for several months for a trial, my opposition was a Los Angeles trial lawyer of some esteem. I couldn't help myself sometimes; when I would object, I’d tell the trial judge, “that dog won't hunt, judge.” For some reason, it had a way and, although I didn't intend it to break up the monotony of the trial and produce some levity, it did.

BOTTOM LINE: Take these 16 words and do your own closing argument using all of them. If you can’t do that, then simply write me a letter or an email with all these words in it. Practice using them to tell a story. If you practice, it really will become dirt simple.

By Paul Luvera

NOTE FROM PAPA DON: My dear friend Paul Luvera was a mentor to me in my early days of the Inner Circle. He has graced this blog with several articles in the past and what follows is a continuation of his brilliant insights of how we should do trials. Here’s Paul:

Last week I spoke at the Washington State Association for Justice Seminar. When I retired I had decided not to give talks in the future since I wasn’t practicing law. The exception I made was for the Inner Circle of Advocates convention because of my long association and past presidency of that organization. When my longtime friend William Bailey asked me to speak at last week’s convention that he was conducting with Seattle lawyer Rebecca Rowe I agreed because of our many years of friendship.

The title of this seminar was “A Closer Look at Experts: New Ideas and Fresh Perspectives.” All of the talks were helpful, but I thought I’d share few of the ideas and thoughts of some that I found significant.

One of the talks was by a physician on laboratory tests. While I have studied statistics and epidemiology because of its frequent testimony as a subject (particularly in malpractice cases), I learned some helpful information. Somehow the significance of the “Bayes Theorem” had escaped me. Essentially, this theorem says you must consider pre-testing relevant factors – not just the outcome in determining accuracy. While tests results like DNA may have a high accuracy in general, there are a number of factors that must be looked at other than the result.

In my practice, I had primarily focused on research, outcomes and statistical conclusions as well as test results almost entirely in challenging the accuracy. I had not evaluated the subjective probability of the outcome obtained. For example, if a pregnancy test is administered to a room full of men and a positive test result is obtained, it is possible that there is a person in the room who appears to be a man but has the capacity for pregnancy. However, the odds are extremely high that the test is a false positive, simply on the basis of the rational subjective evaluation of the group tested.

This evaluation includes the fact that there are false negatives and false positives in testing and test results. In addition, there is substantial research identifying the percentage of the number of average errors for a number of common tests. This includes things such as handwriting analysis, tooth bite forensics and laboratory testing of all types. It also brings into play the issue of the general reputation for accuracy of the laboratory, and the person who has made the interpretation. All of these are apart from the actual test result. The most important fact I got from this talk was that the focus for accuracy of statistical conclusions and test results is not simply the test result itself but the other factors that may be involved in drawing that conclusion.

My friend John Budlong talked about the motion practice and defense experts. John had a well-known case where he represented a young woman on a bicycle who struck an upright post in the bike trail, designed to prevent automobiles from driving on the trail. She was badly injured and sued the city, who had created and maintained it.

Obviously, the issue was whether there had been any other similar events, and whether the city had notice of this risk. If not, it was primarily a case of contributory negligence. The litigation lasted more than six years because of motions filed and appeals taken, resulting in the case being appealed and sent back to the trial court for additional action. The significant fact was the trial court’s ultimate findings that the defendants and their lawyers had concealed and failed to disclose other significant similar events, which were highly relevant to the issues in his case. The result was a very substantial settlement in the case. However, none of this would have been discovered if the plaintiff’s lawyer had not been doggedly determined in pursuing the issue. Determined, in spite of blanket denials that such evidence existed, coupled with claims of the city and their lawyers “searching,” but not finding, such evidence – none of which was true.

The evidence was also very important for the experts in the case. The defense experts who would be able to rely upon the absence of any previous cases or notice would be in a much stronger position than if the facts were otherwise. The plaintiff’s experts, not knowing about this evidence, would be far more vulnerable on cross examination and as credible experts, but with this evidence would be very credible. Not only would this have bearing on the case, but the testimony of experts was also significantly impacted by the presence or absence of this critical evidence.

The message is that persistent, determined discovery of relevant evidence is a very important part of your expert case.

My talk was a general one about experts. I pointed out the importance of the credibility of the lawyer over credibility of witnesses, because the impression we make about our honesty and trustworthiness is critical. I made the point that the great majority of decisions are made at a subconscious level. While intellectuals and judges like to believe otherwise, the fact is there can be no decisions without an emotional component – and the emotional component will prevail over the rational.

I repeated my long standing belief that a trial is a battle of impression and not logic. I reminded the audience of the need to have a constant theme, which follows the 80/20 rule (only 20 percent of the available evidence should be presented to the jury). I noted the importance of viewing expert testimony and the trial in general from a “big picture” standpoint. I argued that juror important values and juror significant past life experiences greatly determine their decision-making in our cases.

I reminded the audience that a trial is a morality play of right and wrong for the juror, who wants to do “the right thing; that a trial is a well-told story, a story about betrayal – not just a mistake. I pointed out that research shows that as evidence is presented it is filtered through the jurors’ values, their significant life experiences and their basic opinions. From that, they create a story of what the case is about. If you do not supply all of the parts of the story they will create the facts to complete their story of what they think your case is about, by inferring it from the evidence.

I offered a basic outline for direct examination of experts and recommended that direct examination begin with the identification of what role the witness has in the case to orient them. I reminded the audience about the importance of keeping in mind: The jury is who you are speaking to; therefore, you need to maintain eye contact and involve them throughout the trial. Research shows the primary factor jurors use to evaluate a witness is trustworthiness, self-confidence and likability. With this in mind, I offered a three-step process for cross examination:

1. Determine three primary goals,
2. Create individual chapters for each point and back them with available documentation, and
3. Put it together as your cross-examination.

I suggested that the focus in cross examination should be upon bias and lack of credibility, rather than challenging the substance of the testimony. The points ought to be focused like a rifle and limited; furthermore, when your point is made, I recommend you quit.

A couple thoughts from the seminar:

The physician talked about test results that were in conflict with expected outcomes; “seeing flashing lights in your rearview mirror,” is I phrase I liked.

Nothing very profound was said by me, but it was an educational process overall.

 By Don Keenan

You'd think we'd all be getting a little tired of going to Costa Rica after the fifth year, but that couldn't be further from the truth. This year, we had our base of operations at the five-star Four Seasons at Peninsula Papagayo. One of the finest resorts this southern Bubba has ever been to! And we had 52 attendees participate.

As far as age range; on one end, we had Walter Floyd from St. Louis – age 82, practicing 56 years – and on the other extreme we had Ashley Taylor from Louisiana who had been practicing 7 months, along with Liz Labrin from Kansas who’d been practicing less than a year as well. 

The following are some of the comments from the attendees:

“I attend every year and love the topics and keeping on the cutting edge at the same time hanging out with new and old friends.” -Sean Claggett, Nevada.  

“No. 1, I love the Reptile^© and No. 2, I love the small group. No. 3, I love Costa Rica.” -Maureen Manning, New Hampshire

“The instruction was fantastic. Love it.” -Gary Boutwell, Louisiana   

“I come to get the most recent, important information on the Reptile^© and boy, I get it.” -Augustus Brown, Maryland

“Best seminar ever. It was the greatest value for my clients.” -Matt Powell, Florida

“Everything was great. The accommodations were spectacular and the seminar even better.” -Adam Dougherty, Florida

Group shot of some of the Costa Rica participants.

Mindy Bish conducted a five-person panel discussion on all of the problems and solutions to openings and closings. That was a high energy, two-hour long panel. The next day, Shawn Claggett conducted a panel discussion of all of the Black Hat attacks, both practical and legal, and covered all of the solutions. I spoke of the evolution of harms and losses, more on Bubba words and announced the “16 Power Words for 2016,” which you just read about this month here on the blog.

For the first time in a long time, I delivered an actual closing argument. It was from my most recent trial; everyone closely listened and then we opened up the floor for comments regarding what everybody saw and heard and how the dots were connected.

David and Artemis expanded on last year’s charisma and storytelling, taking it to a new height. I can always tell when folks are interested when they take notes like they were in grade school and nobody leaves. 

For those who have not been to the Costa Rica December Convention, please understand it is a one-of-a-kind. Because of the smaller group, we are able to discuss secret sauce without boundaries, as well as announce areas that are under research and development.

Many come to Costa Rica as strangers to one another, but I can guarantee you they leave as friends.

Like every year, the demographics were perfectly balanced. New Hampshire, Oregon, Florida, California, New York, Alabama were all represented, it was very demographic. We are currently negotiating for 2016, but understand that we only set aside a block of 50 rooms. Last year we exceeded that and had well over 25 people we had to turn away. Obviously in order to prevent being turned away, you must register early!

Note: Because of a staff error last year, the registration fee for the convention did not include all the costs and we had a $38,000 loss. Before we book this year’s convention, we asked all the attendees if they would rather go somewhere else at a lower cost, or pay an increased registration of $700 over the last year registration fee – 80 percent of the attendees responded and voted to return to the Four Seasons.

By: Michael Peterson, Keenan Law Firm

This month’s Reptile^© Superstar is Thomas Greer. Thomas has been practicing law for 11 years. He is licensed in Tennessee and currently practices law at Bailey & Greer PLLC where his firm focuses on wrongful death, MVC, and med mal cases.

Introduction to Reptile^©:

Thomas was introduced to the Reptile^© via the Reptile^© book in 2009, followed by his attendance to the Welcome to the Revolution Reptile^© Intro seminar in 2010. According to Thomas, “All of this new information was exciting. It was a new way of thinking, and I sought to implement Don’s teachings immediately.”

Thomas’ favorite Reptile^© tool is safety rules. He has found safety rules to be most effective in 1983 claims and med mal cases. According to Thomas, safety rules either force the defendant to agree with the safety rule or risk looking stupid in front of the jurors. Thomas follows Don Keenan’s Trial Blog weekly and is active on his State’s Reptile^© Listserv, as he seeks to discover ways to incorporate Don’s strategies into each of his cases. In his last four trials, he has beaten the insurance company’s offer by four, seven, 74, and 10 times, respectively.

Facts of the Case:

Thomas’ case concerns a motor vehicle versus truck collision. The wreck occurred in 2012 in Memphis. Thomas’ client was traveling on the interstate heading to Little Rock, Ark., driving at around 30-40 mph due to heavy traffic. A truck that was traveling in the right lane veered into the plaintiff’s lane, forcing the plaintiff to veer toward a concrete barricade on the left shoulder. With nowhere to go, Thomas’ client pressed on her brakes and braced herself, gripping the steering wheel. The truck continued to enter her lane, colliding into the plaintiff’s vehicle.

The truck did not cause much damage to the vehicle. When the police came to investigate the wreck, Thomas’ client refused medical attention and informed the police that she was only suffering from mild pain in her right shoulder.

Thomas’ client was on business and was driving a rental car at the time of the wreck. Afterwards, she got a new rental car and continued to her business meeting in Little Rock (about 2 hours away). Thereafter, she flew to home to Houston, Tex. The next day, she saw an orthopedic doctor for her shoulder pain. The doctor assumed that it was a minor soft tissue injury and that she would likely recover. He supplied her with anti-inflammatory medication and told her to come back in six weeks if she was still in pain.  

After a couple of days, Thomas’ client began to feel pain across both shoulders and after a couple of weeks, she began experiencing numbness in her arms and hands. Thomas’ client returned to the doctor, who prescribed physical therapy for her shoulders and cervical spine. The physical therapist scheduled eight sessions; however, she was only able to complete four sessions due to increased pain. All of her post-accident care came under worker’s compensation, a process that caused delays or “gaps” in treatment, which the defense sought to exploit. Eventually, the treating workers comp doctor informed her that he was concerned that she was suffering from cervical radiculopathy. Her physician ordered an MRI, which showed that Thomas’ client suffered from a disc protrusion.

Thomas’ client continued to work full-time during her treatment. She expressed to Thomas during witness prep that she was afraid to miss time from work due to the demands of the sales industry, and feared her employer would fire her if she had too many absences. As the pain progressed, Thomas’ client decided not to continue with physical therapy and she even refused her physician’s recommendation for epidural steroid injections. The client’s medical bills amounted to a mere $9,500.

The defendant argued that Thomas’ client was not as hurt as she claimed, because she chose not to accept treatment. The defense relied on the fact that Thomas’ client did not finish physical therapy, there were “gaps” in her treatment, she did not take narcotic pain medication, her medical records did not accurately reflect what she says she complained about, she continued to go to work full time, and she even went on several exotic vacations after the wreck. Moreover, there was evidence that Thomas’ client had a preexisting neck injury in 2010. Furthermore, in 2008, she had low back pain for which she chose to receive epidural steroid injections. This led the defense to question the plaintiff’s motives. The defense admitted liability early in the case.

Reptiling the Case:

Thomas started jury selection with passion questions to humanize him and, by extension, his client. Much of Thomas’ jury selection centered on the venire’s perception of the accuracy of medical records; he asked whether they or anyone they knew had problems with inaccurate medical charts and records. Everyone on the panel raised their hand and the panel agreed to listen to what the plaintiff said about her injuries, not just the medical records. Thomas went on to ask the venire how they felt about a person who continued to work despite being hurt. The venire stated that outside of serious injuries, they expect individuals to continue working. Thomas also asked about his client’s refusal to undergo epidural steroid injections and refusal to take narcotic pain medication. The panel agreed that undergoing a medical procedure was a personal choice and that it was wise to avoid prescription pain medication at all costs. Thomas used his remaining questions to eliminate the rats that could not see past his client’s pre-existing injuries and delays in treatment.

Prior to trial, Thomas deposed his client’s doctor, as well as a second opinion workers comp doctor who had been selected by the workers comp company. Both doctors stated the client’s neck and shoulder injuries stemmed from the wreck and that the injury was permanent.

At trial, Thomas started his proof by calling two of his client’s friends to testify about her character as a hard worker, and breast cancer survivor. They testified about how she truly enjoyed her work and she was extremely hard working. Furthermore, they testified that it was normal for her to continue working despite the stresses that were affecting her personal life. Thomas had them testify to the fact that she returned to work immediately after her breast cancer surgery, as an example of her dedication and love for her profession. Their testimony showed the jury that she was tough as nails and willing to persevere through anything. They also testified that she never complained about things and would downplay her pain, but that they had seen a big difference in her activities and overall demeanor since the wreck. Finally, they testified that she was the most honest and dependable person they knew.

Next, Thomas played the deposition of the treating workers comp doctor. He used the plaintiff’s treating physician to teach the jury about his client’s injuries using diagrams and models. He also had him explain why there were “gaps” in her treatment (i.e., workers comp denied visits, diagnostic tests and other therapies).

Thomas followed up the treating physician’s testimony with the videotaped deposition of the second opinion workers comp doctor. Thomas made a big deal about how the second opinion doctor was handpicked by the workers comp company to question the opinions of the treating doctor. Yet, he also agreed that there was a permanent injury. This testimony strengthened the credibility of treating physician and helped Thomas retain the jury’s trust.

Next, Thomas called his client and her husband. Their testimony was short and to the point. They testified about when the pain developed, how the pain never went away, and how the pain affected their lives in every respect.

The defendant called a local DME to testify that any problems she was experiencing did not stem from the wreck, but from her prior injuries.  He testified that she may have had symptoms for six to 12 weeks related to the wreck, but anything after that was due to her pre-existing problems.

Thomas kept his cross of the defense very short, as to not give any of his statements any credence. His one objective was to place the expert on-code. Thomas focused his cross on the defendant’s bias towards the defense. Thomas had the expert admit that 90 percent of his testimony was for the defense and that he had worked several times with the defense’s law firm. Thomas pointed out that the defendant actually paid to fly his client from Houston to Memphis to see him and he asked the doctor, “Why would the defense firm do that?” The answer didn’t matter. Thomas went on to juxtapose the DME’s position to the medical position of the plaintiff’s treating physician, and the second opinion workers comp doctor.

Thomas performed a side-by-side comparison of findings made by the DME, to findings made by the treating doctors, in order to show that they were starkly different. Finally, he got the DME to admit that his opinion means that the wreck was a mere coincidence, and had nothing to do with her current condition. By the end of his testimony, the jury could clearly see the DME was on an island as it pertained to his opinions. Thomas’ strategy was successful at placing the defenses’ expert on code.

Right after the defenses’ expert, Thomas recalled his client so that she could directly contradict many of the DME’s statements. The plaintiff testified that she had to sit for 85 minutes in the waiting room before the DME started her examination and once started, it took only 10 minutes. She also flatly disputed many of the tests that the DME claimed to have performed on her. Her testimony coupled with the DME’s testimony proved to the jury that the expert was on code.

Closing:

During closing, Thomas focused on the jury’s role as the conscience of the community. Thomas told the jury that their verdict must speak – not just for today, but for the next 30 years – and must speak for every honest, hardworking, and dependable member of society who is injured by someone who violates the rules of the road. He talked to the jury about responsibility. He discussed how responsibility requires a person to admit to their actions and then do everything possible to make it right. Thomas went on to address how the defendant admitted to liability, but failed to attempt to make right and instead denied any responsibility for the damages in this case. He told the jury that this was their opportunity to make it right. Thomas explained that safety rules existed for one reason: To make us all safe from harm. And when rules are broken, the violator must pay for all the harm, not just some of it. Thomas revisited the medical records and treating physician’s testimony to prove that her injuries stemmed from the wreck. Thomas chastised the defense for how they had treated his client in trial by calling her a liar and a cheat.

To highlight the harm done to his client, he told the jury about how well she felt right before the wreck after her fight with cancer was finally over. He mentioned the fact that her youngest child had recently gone off to college, and that she looked forward to playing golf, taking walks, and taking vacations with her husband. Thomas wanted the jury to know that she had things she was looking forward to other than work that the defendant snatched away through his negligent actions.

Thomas told the jury that if they believe the defense’s version of the facts, then they must also believe that the defendant was the luckiest trucking company on the face of the earth. The facts showed that the plaintiff was in a wreck, started having pain immediately after the wreck, that the pain spread within a couple of days, and that the pain never went away. Yet, Thomas told the jury, the defense would have you believe that the wreck has nothing to do with her condition today. Thomas also addressed his client’s pre-existing conditions by saying,

“We all preexist before a wreck, and thus people may have problems they do not even know about. The defense is saying if you are in a wreck in Memphis, Tenn., you better be in perfect physical condition, or else you’ll get nothing for your injuries. You better not have any wear and tear or preexisting medical problems, or else you can’t recover for your injuries. Well folks, this not the law that the judge instructed and you all swore to uphold the law.”

Verdict:

The jury returned with a unanimous verdict of $300,000, which was 10 times the pre-trial offer. Despite the plaintiff’s pre-existing injuries, inconsistent medical records, lack of medical treatment and the continued work, Thomas was able to win his case through jury selection questions, swift boating, and placing the defendant and defense experts on-code, while showing that his client was worthy of their verdict. Congratulations to Thomas on use of the Reptile©. This verdict made his client whole, awakened the community’s Reptile^©, and put the defense on notice!

By Don Keenan

Those famous words, “You gotta know when to hold ‘em,” were sung by a good ol’ southern Bubba named Kenny Rogers who is also a longtime Atlanta resident. Before we go much further, let me introduce you to another southern axiom: "You can't cure stupid.”

Let me address the latter first. 

We knew in the beginning of Reptile© there would be those who, no matter how much persuasion or clear black letter law you use, there’d always be certain folks who just won’t hear it. They'll cover their ears and hang their head to block out even the remote possibility of hearing a word or two. 

Now there are some fellow plaintiff’s lawyers who fall into this category. Those include the naysayers and the Chicken Littles (where, of course, the Black Hats are in a vacuum of intellectual absence), but I want to address this article from the category of judges. 

Judges don't like anything different from they've done for forever. Anything new is toxic and invokes fear; but, we've seen that once most of the judges are educated on the black letter law their fear transpires into comfort and then the Reptile© comes screaming into the case, unrestricted and unrequited. However, we must realize there are certain judges who, no matter what you do or say, are not going to accept one thimble full of it.

Let me tell you about a couple recent occurrences first, and then I’ll give you some potential alternatives that we have available.

There was a case I co-counseled on, that was worked up by a Reptile© lawyer who did one of the best, most detailed case workups I’ve had the privilege of working on. It was a masterful job. Our venue was a very conservative area with an even more conservative judge who didn't want to rule on anything until right before trial (“rule” being an understatement because he slashed and burned our case).

Can't use rules, can't use safety, can't use conscience of the community, can't even use foreseeability (even though we called it foreseeability and I believe he understood what it was). It wasn't that toxic word spreading the tentacles – but yet, no foreseeability. This stupid judge proceeded to rule on non‑Reptile© issues, such as gutting our standard of care with witnesses. He even gutted the other similar instances.

While we had consistently gotten unanimous verdicts in focus groups (where we had the full case available), once we were gutted we did two focus groups right before trial – one in Atlanta and one in the case venue. Both groups were defense verdicts. The judge had neutered the case down to an event case – and not much of an event case at that. [As a side note, we stated that medical bills were not going to be claimed, but the judge was one of the only judges in America who said the medical bills had “total relevance to the case” and the jury must receive them.]

While my co-counsel did a great job arguing the Reptile© motions, the judge literally put his hands over his ears, hung his head and said, “I don't want to hear anymore.” As childish as that is, it points to the absurdity and mean-spiritedness of the judge. 

So what did we do when we knew we were marching into Death Valley, and a certain death therein?

At the mediation, the defendant had offered not what we believed to be a reasonable amount, but it wasn't insulting, either. The Black Hat (not being stupid) realized the likelihood of reversal and wanted to continue to negotiate even in the face of 100 percent of the rulings in his favor.

We were looking at an almost certain two-year turnaround in the appellate court. Then we had to factor in that, with a reversal, we would only come back to the same judge who could decide to gut us in new ways. The clients were good and decent people who simply wanted the matter to conclude. They wanted closure and they wanted it sooner rather than later. It was about that time the famous words of Kenny Rogers rang in my ear as we concluded this was the “time to fold ‘em.” I’m not proud about it, nor happy about it, but it is what it is.

Here’s another instance of a stupid judge. There was an Oklahoma trial lawyer who was Reptile© ready and the judge waited until the end of the first day of jury selection to declare a mistrial over some nuance concerning the specificity of pleading certain counts of negligence. I'm sure if it weren't that issue it would have been some other obscure issue. The judge “graciously” permitted the trial to continue the next day with a new panel. Nobel got a new jury, which was an even better one then the day before, because he was far more proficient at the voir dire. But the judge called another mistrial for the case during opening statement. 

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Now I'm not just taking Nobel's word for it; the courtroom had a dozen or more Reptile© lawyers present – all of whom reported there was not one single valid reason for either of the mistrials, except the judge just didn't want to try the case.

Then Nobel faced a sanctions motion by the Black Hats. While a good many lawyers would simply have “cut tail and run” (back to doing real estate closings or collecting JC Penny's accounts), this was the time you learned if a lawyer is a woodpecker or not. If a lawyer has the courage of his convictions – and I have no doubt Nobel is coming back. 

Why am I telling you these stories? 

Well, it’s because you're eventually going to be there yourself. You'll have a great case and you’ll be fully prepared and you will have a mountain of ignorance sitting on that bench screwing you at every turn. Thank goodness our careers are not defined by one trial! But make no mistake about it, my friends, it can happen and it will. And there is little you can do about it. 

Now, when I say there is little you can do about it, let’s talk about what you can do:

1. Get a local.

Although you're licensed in the state where the case is pending, consider retaining local counsel to get you some inside leverage. There is one state where I've had an eight-figure verdict and two seven-figure verdicts (all in no offer cases), where my local counsel was without question the most prominent trial lawyer in the state; president of the state’s Bar Association, president of the national trial lawyers association, when the U.S. Government Justice Department sued their legislature the legislature retained my friend to represent them. He represented the judges when they need a pay raise. My three cases were some of the easiest I have ever tried out of state. I not only had the wind at my back I had a tornado and it worked. Judges are people and somewhere they've had a former law partner, a friend, somebody that you can get to maybe help you out on your case.

2. Interlocutory Appeal.

Most judges who are trying to screw you know that time is usually very important to the plaintiff’s lawyer. As such, many judges don’t think you’ll take an interlocutory appeal (assuming you have legal grounds to do it). Obviously, if the case is riddled with errors prior to trial then the case is ripe for an interlocutory. If possible, let the judge know in advance before you file it because on one occasion the judge reconsidered and we had a somewhat decent relationship from that point on.

3. Wear the Judge Down.

In most states, you have an unrestricted ability to make an offer of proof without restraint on any issues you want to make a record. Don’t hesitate to use this procedure.On several occasions I have drawn the offer of proof out in time, moving slowly, talking slowly; judges hate the offer of proof procedure because they know you’re speaking and presenting to the record and not the judge. They know you’re setting them up and it’s not a good feeling for them. Plus, since most judges have “time-itis” (that is, everything has to be done in three minutes or less), the offer of proof is sheer death for them. I use it as often as I can one to make a record which is my right and second to wear the judge down, let him know the consequence of his bad ruling.

One time, I made four offers of proof during the morning session. Each was nearly a half-hour in length and the judge understood the afternoon was going to go the same way if he continued to cut me off on my witness examination. I never thought it possible but in the afternoon, the judge actually left me alone. I guess you could say I wore him out. Can’t guarantee this will work for you but if you’re in a bad situation already, you might as well try it.

4. Motion to Recuse.

Probably just to make a record, but if you have reason other than the rulings, then go for it. As with some of the above, even if you’re denied the filling has a way of backing down the judge.

BOTTOM LINE: Sooner or later, you’ll be between a rock and a hard place. Know when to hold ‘em and know when to fold ‘em. If you’ve got a judge hell bent on screwing you, you don’t have any great options but you do have some options so try them and see if it helps. It certainly can’t hurt your case at that point.

By Fred Hagans
Hagans, Burdine, Montgomery & Rustay

Note from Papa Don: The following article is very special. First it's written by a close cigar smoking (La Gloria) friend who is the lawyer we should aspire to be. Fred Hagans', from Houston, is the nation's most successful commercial lawyer. He's the dean of the KBC focus group college and a frequent contributor here. I was in Houston not long ago and Fred and I were smoking some stogies at a favorite cigar bar, talking about the great JOE Jamil — one of the original members of the Inner Circle. I was always inspired by my time with Joe and jealous of Fred, who got to practice law with Joe and try many cases together. We talked at length about what contributed to Joe's greatness and his health at 90+ years, so I asked Fred to do this piece on Joe (not knowing that Joe would pass in just a few short weeks after we had that conversation). Read these words and for your glory.​

Photos of Joe and Fred were taken shortly before Joe's passing, and are courtesy of Fred Hagans.

On Oct. 19, 2015, Joe Jamail – the King of Torts – walked into court on his 90^th birthday. Prior to the hearing, the judge asked Mr. Jamail to stand, saying: “I understand that today is your birthday.”  

Joe stood and told the judge: “Yessir, it is. And I have to say that there is nowhere I’d rather be on my 90^th birthday than right here in this courtroom.”

Every lawyer, defendant and plaintiff alike, gave Joe a standing ovation. A week later, Joe was deposing a witness. Joe loved the law and he loved being a lawyer. Two months later, a week after preparing an order of witnesses for an upcoming trial, Joe passed away. Our profession lost a truly remarkable man.

Over the last 15 years, I had the privilege of working with Joe on a number of cases. During that time, I was introduced to Don Keenan and the Reptile^©. As I learned more about the Reptile^©, I had the opportunity to talk with Joe about what I learned. Given his tremendous success, it is not surprising that Joe’s practice employed many of the Reptile^© principles for many years.  Without any doubt, Joe was “off-code” – one part of his success with juries.

Joe is best known for his landmark Pennzoil verdict of $11.12 billion in 1985. Joe represented Pennzoil. Pennzoil sued Texaco for fraudulently inducing Getty Oil to break a contract that would have given Pennzoil a billion barrels of oil reserves. The problem was that the final papers between Pennzoil and Getty had not been signed. The trial lasted five and a half months. If you were to go back and dissect the trial, you would find many elements of the Reptile^©. Joe simplified the case to the iconic imagery of a handshake – an idea that resonated.  He emphasized that a handshake deal in Texas is just as binding as a hundred-page written contract. Importantly, he engaged the jury, telling them they could protect their community:

“You people here, you the jury, are the conscience, not only of this community now in this hour, but of this country. What you decide is going to set the standard of morality in business in America for years to come . . .

“There is no half justice without half injustice. Don’t compromise your morals or your verdict. They think you are not big enough to send this message. I’m not.  The court is not. You are. Only you. You can turn a cold back to Pennzoil and condone this conduct, or you can say, No, no, no more.

“I ask you to remember that you are in a once-in-a-lifetime situation. It won’t happen again. It just won’t happen. You have a chance to right a wrong, a grievous wrong, a serious wrong.  It’s going to take some courage. You got that . . . .  You are people of morality and conscience and strength.

“Don’t let this opportunity pass you.”

Joe’s career was certainly legendary, and the aspects of his practice (and personality) that made him a legend continued. Remarkably, for anyone but Joe, at 90, he was every bit as relentless, formidable and charismatic as he had been for more than six decades of serving clients. Indeed, the passage of years seems only to have been additive for Joe – to his remarkable store of talents, experience added wisdom, political savviness, an uncanny sense of timing, and incredible insight into opposing counsel, issues, arguments, judges, juries, and witnesses. The strength of will he brought to each case made him an irrepressible force halted only when he realized his clients’ objectives. 

While Joe was nationally known for the Pennzoil verdict (which was affirmed on appeal, then settled after Texaco filed bankruptcy), Joe had a long list of lawyer achievements. Noting just a few of those results demonstrates that Joe’s legend is well founded. 

Photo courtesy of JoeJamil.com, “Landmark Cases”

One case I was lucky enough to work on with Joe occurred in 2010, when Joe led the landmark class arbitration Wood v. O’Quinn to a successful close with a recovery of approximately $46.5 million on behalf of a class of more than 3,400 former breast implant clients of John O’Quinn’s law firms; from whom the law firms had wrongfully taken monies improperly labeled as “expense.”

This groundbreaking case illustrates the superb lawyering that is typical of Joe Jamail. Under his guidance as lead counsel, Joe led fights exploring compelled arbitration, class arbitration, fiduciary fee forfeitures, and superseadeas bond jurisprudence. The case was filed in 1999 and included numerous hearings in the trial court, removal and remand, three tours in the Texas Supreme Court, seven mandamuses, appeal, and an arbitral hearing that spanned four separate proceedings over nearly three years. After the appeal of the trial court’s final judgment confirming the final arbitral award, John O’Quinn died. His executor negotiated a settlement with Joe in which the class obtained 100 cents on the dollar for the class’s recovery under the arbitral award. The result was that every class member received a net payment that exceeded the amount of the expenses wrongfully withheld by the O’Quinn firm.

The case had high stakes, resulted in a substantial recovery, and will affect litigation nationally.  The case required the integration of many rules and principles: The duties of lawyers to their clients, the strict and unyielding rules of class actions, the flexible rules of arbitration, and the progeny of the U.S. Supreme Court decision in Bazzle v. Greentree.

Joe’s work demonstrated that class arbitrations are a viable procedural device and that attorneys who handle mass tort actions can be held accountable. Joe handled this case as lead counsel, working with my firm, along with Ronald Krist and Associates, P.C., Hance Scarborough LLP, and Wilder & Wilder. On a personal note, I count my work with Joe among the true highlights of my professional life.  My memories of his relentless, unyielding cross examinations of some of the toughest, most savvy lawyers in Houston in the arbitration proceedings in this case will be carried with me and treasured among the best examples of what lawyering done right looks and sounds like.

The following is a small sample of cases tried in recent years by Joe:

• Benjamin Chang v. Kaiser Permanente Medical Center and Rattehalli Sudesh, MD.  Joe recovered on behalf of an up-and-coming-engineer whose life was forever altered by blindness caused because his insuror, Kaiser Permante, delayed authorization of a medical procedure on a tumor.
• Estate of Alfred Glassell, Deceased. Houston’s Museum of Fine Arts hired Joe as its lead counsel in this case, in which it defended its position as a designated beneficiary under a major donor’s will. The party challenging the will lost, and the Museum (represented by Joe) received its share as set forth under the will.
• Turpin v. USA Truck Inc. and David Wayne Elie. Joe obtained a verdict for $16,593,588.96 for his client – which, memorably, quantified “the smallest increment of money for the smallest increment of time” during which his client endured pain and suffering caused by the defendant, or one penny for every second of every day for which his client sought damages.

Understandably, many defendants resolved cases with Joe rather than going to trial. These are a few of his memorable settlements:

• Baylor College of Medicine v. American Guarantee and Liability Company. When its insurer denied its claim for the millions of dollars in technology, research, animals, and facilities it lost as a result of severe flooding during Tropical Storm Allison, Baylor College of Medicine hired Joe to recover tens of millions of dollars in losses.  In addition to obtaining an extraordinary settlement for Baylor, Joe waived his eight figure fee to Baylor College of Medicine.
• BP Explosion cases. Joe obtained favorable settlements on behalf of workers and their families for the deaths and severe injuries caused by the March 23, 2005, explosion at BP’s Texas City refinery.    
• Paul Cooke, Jr., et al v. Stephenson. Joe obtained a favorable settlement for a family whose son suffered catastrophic injuries when he was thrown from a recreational boat slammed by a jetski.
• Broussard v. KLLM, Inc. Joe obtained a favorable result for widows whose husbands burned to death when the truck in which they had been driving exploded and burned after being struck by an 18-wheeler truck.
• Golden v. IRISDT, Inc. Joe obtained a favorable result for a man who was irreparably injured by being exposed to too much radiation during cancer treatment.
• Mata v. Christus. Joe obtained a favorable result for a family whose infant son suffered permanent mental impairment as a result of oxygen deprivation during his delivery.
• Allsbrooks v. Zachry Construction. Joe obtained a favorable result for a widow whose husband was crushed by falling pipe as he worked on the Houston Ship Channel.

This level of activity, along with the extraordinary results, is particularly impressive when realizing this occurred during Joe’s late seventies and eighties. At a time when most lawyers have slowed down or retired, Joe continued to work relentlessly on behalf of clients, never wavering in providing his superlative services and ability.

Throughout his career, Joe amassed some of the most legendary results obtained in our profession. It is difficult to select a small list of cases and accomplishments to reflect his skill as a trial lawyer, but the following are illustrative. Simply put, Joe’s results speak for themselves:

• No list would be complete without mentioning the largest jury verdict in history—the case of Pennzoil v. Texaco. In that case, Joe was the lead counsel where the jury returned a verdict of $11,120,000,000.00.
• In the case of United States National Bank of Galveston v. Coopers & Lybrand, where Joe was the lead counsel, the verdict and judgment in this negligence and fraud case was $560,000,000.
• Cases tried by Joe as lead counsel have resulted in manufacturer product recalls, including the Remington 600, Honda All Terrain 3 Wheel Vehicle, and the prescription drug Parlodel.
• Joe was lead counsel in more than two hundred personal injury cases where the recovery (by verdict or settlement) exceeded $1,000,000.
• Joe has also argued cases before the United States Supreme Court (e.g., Gulf Offshore v. Mobil Oil, 453 U.S. 473, extending the jurisdiction of state courts to hear cases arising under the Outer Continental Shelf Act), the United States Courts of Appeals for the Fifth Circuit, the Texas Supreme Court, and numerous intermediate appellate courts throughout Texas.

Joe Jamail was recognized and included by many lawyer groups: Fellow, American College of Trial Lawyers, Fellow, International Academy of Trial Lawyers, Inner Circle of Advocates, Advocate, American Board of Trial Advocates, Fellow, International Society of Barristers, Fellow, International Academy of Law and Science, Fellow, Council of Law and Science, Association of Trial Lawyers of America, World Association of Lawyers.

In spite of Joe’s busy schedule, he still made time to serve the University of Texas Law School, where he funded numerous professorships and scholarships. He also served as the Chairman of the Texas Supreme Court Task Force on Civil Litigation Improvements. One specific donation is noteworthy: As a result of the Hopwood decision in 1995, UT could no longer consider race in admissions and scholarships. Joe stepped in and made a $2,000,000 donation to a scholarship fund set up by the UT Ex-Students Association to fill the gap and provide minority scholarships.

Perhaps more than anything other than his love of family, Joe loved and respected the law.  He felt privileged to have a law license that allowed him to represent clients. Joe lived life fully and with courage. Our profession is better for having Joe as a part of it. 

By Don Keenan

Long ago, I learned that just because you can object doesn't mean that you must object.

Sometimes, letting in legally inadmissible evidence has worked in my favor. Before I give you some examples, just remember: You don’t have to be a Jack-in-the-Box and jump up at every opportunity to object; instead, think it through and see the big picture before you make any decisions.

Most of the time, I remain seated.  Here are some examples:

SOUTH CAROLINA, WRONGFUL DEATH TRIAL

This was an electrocution case and the deceased was a not-so-nice fellow. He had a criminal record, was a serial wife-beater, and an alcoholic who never paid child support. He was working as a day laborer when the tent that he and others were erecting came in contact with low‑hanging power lines, which were hanging well below the federal code regulations. Kevin Smith, a Keenan Ball College Faculty member, and I tried the case together.

Kevin Smith, faculty member at KBC

This was a case in a state where the measure of damages in the wrongful death was survivorship to his two young daughters, one 21 and the other 18.

We knew from failed mediation that the main defense was: This guy was better off dead than alive.

That same theme continued during trial when, during cross-examination, both young girls were on cross and the Black Hat threw down eight by 10 glossies of the battered face of their mother. With the Black Hat screaming at them, “This is what your father did to your mother!” I could have very well erupted in a vociferous stream of objections. However, I'd spent a good bit of time with both girls and knew they would hit it back and slam the Black Hat, which they did.

“Sir, I can't excuse what my dad did to my mother but I can tell you that he never laid a hand on me except a hand of tenderness and he was a gentle, caring dad and he didn't deserve to die.”

Talk about counter punching.  That was the TKO in the first round by both girls. Had I objected, I would have never experienced the joy of seeing the expression on the Black Hat’s face when each girl knocked him out.

I should have said earlier this was a bench trial and the judge had 20 years of experience. At one point, the Black Hat said, “Judge, this is not a normal family.” The judge responded, “I've been a judge for 20 years and I've seen all types of families and frankly, there is no norm.  Families are complicated and each is different.”

This knowledge prepared me for how I was going to handle the next witness. The Black Hat called what he proffered to be the State's leading criminal defense lawyer. I'll remember this fellow forever, what a fancy Dan he was. Handle bar moustache, a vest with one of those key FOBs looped around his vest buttons. The judge asked the nature of the witness and the Black Hat responded that he was going to give “expert” testimony on how much jail time the deceased would have gotten for the criminal assault case he was under indictment for at the time of his death for his wife. Now, all of you know that – no matter what state you practice in – this is clearly inadmissible evidence of the highest speculation and I could have easily moved to exclude it.

What the judge said earlier convinced me to shut up and stay seated.

The fancy Dan proceeded to educate the judge on what he knew (that is, the process of the criminal case) and then came to his ultimate opinion that (a) he would have been convicted and (b) he would have gotten three to five years in jail.

As I stood to commence what might have been the easiest cross-examination of my career, the judge said, “Mr. Keenan, may I ask a question?” Well of course, I said. The judge then turned to the fancy Dan expert and said to him, “During the time of what you think would be his incarceration, assuming he would have been convicted, the two young girls would have been able to visit their dad once a week for four hours, isn't that true?”

The fancy Dan of course said, “Yes, assuming they wanted to visit.” (At that time the Judge, I'm certain, was convinced that these precious young girls would have never missed a visit). The judge's final question was, “You would agree that, after having been killed by the electrical power lines, the girls will never be able to visit their dad?” While the case was being tried in South Carolina, the powerful words of North Carolinian Gomer Pyle came to mind…

ARIZONA TRIAL

This was a fairly routine traffic crash where an armored truck sped through an intersection turning right, took the turn too wide and crashed into a mother of a special needs child. Thank goodness the child was not in the vehicle at the time.

The mother sustained a neck injury requiring a discectomy, low back injury and injury to both knees. As we were approaching trial seven years after the crash, the mother had her final of seven surgeries on her knee.

Prior to the crash the mother lovingly took care of all of the needs of her child, who had been severely brain injured since birth. Sadly, over the seven year treatment span, she reached the position of not being able to lift her child, bathe her child, or take care of the child’s bodily functions. With great sadness, she was required to relinquish care to a state-run group home. 

Repeated focus groups confirmed that the greatest damage the mother sustained was being separated from her special needs child. Ryan Skiver, faculty at Keenan Ball College (KBC), was my co‑counsel and he had retained an expert who prepared an extensive life care plan to show that private funds would provide greater care than the state-run group home. Unfortunately, for reasons I disagree with, the court ruled the life care plan inadmissible, but did (thank goodness) permit the mental anguish, anxiety, loss of sleep, etc., that the mother experienced because of the crash separated her from her child.

Ryan Skiver, faculty member at KBC

The Black Hat made the dreadful mistake of defending that everything the child was getting in the group home was more than adequate, and listed five state employees who were going to testify as to how wonderful that state care was and would continue to be in the future.

Legally, we could have objected to all this nonsense by invoking the collateral source rule. Had we done so, all of that would clearly be ruled inadmissible. But having done years of obstetrical neonatal pediatric practice with over 20 trials, I savored and was excited about letting them put on these collateral sources.

I had a number of prior children’s cases in states that did permit collateral sources and have therefore had to deal with them in the courtroom many times. The yellow brick road to defeating the “State provides well for the child” defense, is embedding into my life care planner and witnesses testimony about how long the waiting lines were to get into the programs, specific instances where state programs available five years ago were no longer funded and don't exist, and then lastly the most powerful argument, the cynical argument: “Why should the taxpayers, you and I, the bailiff, the court reporter, everyone in this room, have to pay for services for a condition caused by the defendants?”

I always found in the cases I tried in the 1980s and 1990s that my ability to slam the state services got me verdicts that paid every penny of my very high expensive life care plans and created anger amongst the jury for the Black Hats even suggesting that the taxpayers should subsidize for the defendant's errors.

So in this case, I decided not to object to the five state witnesses for the very reasons I outlined above, but also because we had discovered that the very agency the state employees worked for was under a class action lawsuit. The basis for the case was that the state agency was providing sub-standard care to children in Arizona because the employees’ case loads were triple what they should have been, and the number of children in various group homes far exceeded permissible limits. The judge in the class action suit had appointed a court monitor who was rendering monthly reports to the judge about how bad the conditions really were.

We got certified copies of all the pleadings and as well specific witnesses that could talk from personal experience about how bad the conditions of the recommended housing for the child really were.

While I had the complete legal right to object and exclude, I learned long ago the power of practicality. As I was getting ready for trial, 72 hours prior to jury selection, the carrier substantially increased their offer such that the case settled. Another practical reason for the settlement is that we knew what the defense did not – that is, the child had recently been transferred to hospice and was not expected to live but a couple of months.

GENERAL CASE EXAMPLES

I learned long ago (when I was president of the American Board of Trial Advocates in 1992) that, in studies of what juries want during trial, the No. 1 thing they do NOT want is lawyers objecting. They consistently say they want to hear everything and an objection is despised because, to them, it indicates the objecting lawyer is trying to hide something.

One of the diseases, inherent in puppy lawyers, is they spend more time on their feet objecting than they do sitting and listening.

Haley, Don Keenan’s pup

In voir dire, I will often ask a jury this question:

“Ladies and gentlemen, I am unlike a lot of lawyers, in that I rarely object. Even if I believe I've got a legal objection, I don't usually object because I think you should have all the information. Do any of you feel that I'm not a good lawyer because I'm not jumping up and objecting to everything?"

Asking this question immediately takes me off-code. In response, I've gotten a lot of answers from the jury. They’ve told me they don't like objections and they want to be able to hear all the evidence; precisely what the focus groups tell us. To make the point clear, there might even come a time during the trial where I’ll jump up and object and then pause and say, “Your Honor, forgive me, I just got overcome – but let me withdraw that objection, as I believe the jury should hear the answer.” Juries will often smile at me when this happens.

Finally –I don’t do this in all cases, but if I know the Black Hats are infected with terminal “objectionitis,” then I have somebody on my team track the number of objections they make versus mine. Then, all I do in closing is say,

“Ladies and gentlemen, I don't know if it's important or if it means anything to you, but we kept track of the 132 objections that the defense made throughout the trial. Yes 132. And I objected twice. Again, I don't know if that matters but it's something you may want to consider.”

Make no mistake about it. Juries get it. This reminds them that, throughout the trial, the Black Hats didn’t want them to hear evidence.

In 2014, many of you know I tried a case in Southern California. It went on for a long time (months) and I didn’t object once. Legally, I certainly could have (more times than I can even remember). Do you think I reminded the jury of that during closing?

Now, I've been fortunate to practice many years with the smartest legal mind I know – Allan Galbraith, who manages our southern California office. Allan bombards me with every proper legal point there is in the case but he never takes offense when I simply don't follow it.

Bottom Line: Understand the legality of the case, but also understand the big picture of practicality. Practicality, in my own opinion, is what wins your case.