By: MICHAEL PETERSON, KEENAN LAW FIRM

This month’s Reptile Superstar is Mike Haight. Mike has been practicing law for over 20 years in Las Vegas, NV. He and his partner’s firm focuses solely on Plaintiff’s PI.

Outside of the law, Mike is involved in his wife and daughter’s non-profit organization “Serve/Receive”, which provides financial and academic support along with peer mentoring to disadvantaged young girls who have an interest in volleyball and other team sports but who otherwise could not afford to participate.

Introduction to Reptile:

Mike’s Reptile journey started in 2010, when he read the “REPTILE: The 2009 Manual of the Plaintiff’s Revolution.” Mike attended the Welcome to the Revolution seminar in Las Vegas that year and thoroughly enjoyed the seminar; but he did not make the decision to immerse himself in the Reptile until 2012.

Mike has now attended several seminars and taken five KBC Courses. His favorite was the Damages Course. According to Mike, “the College Courses are amazing. The information taught has revolutionized my practice of law and reinvigorated me as a lawyer.”

Facts of the Case:

This case involves a motor vehicle collision. The wreck occurred during stop and go rush hour traffic at 5:00 pm in Las Vegas. While the Plaintiff was stopped in traffic, the Defendant’s vehicle rear-ended his car. The Plaintiff learned after the collision that the Defendant was tending to his two dogs rather than watching the road ahead. The police were called to the scene to inspect the wreck. There was less than $400.00 in damage done to either vehicle and both drivers told the police that they were not injured, so no police report was done.

The Plaintiff was 65 years old. Two days after the wreck, Mike’s client began to experience pain in his neck and back, but Mike’s client didn’t see a chiropractor until a week later. He then had chiropractic therapy for 3 1/2 months and incurred medical bills of $5,084.  He was salaried and did not miss any time from work. The insurance company did not believe anyone could have been hurt in the wreck, and only offered $200.00 to settle the claim. Therefore, Mike’s client had no choice but to file a lawsuit against the Defendant.

In Nevada smaller litigation cases, you must attend a mandatory but non-binding arbitration. At the arbitration the Defendant insinuated that Mike’s client set up the wreck and then lied about his injuries. At the conclusion of arbitration, the arbitrator ordered a $9,000 award for the Plaintiff. However, since the order was non-binding, the Defense appealed and made the decision to go to trial.  In Nevada, these sorts of cases must be tried from start to finish in one day in front of a jury of only 4 people.

Before trial, the Defendant offered only $1,000 to settle the case. Mike’s client rejected the offer because he would have still owed money for medical bills. On the morning of the trial the Defendant “stipulated” to liability, and then objected to Mike’s attempted use of safety rules since liability was no longer in dispute. The Court sustained this objection, agreeing that the case was “only about damages.” The Defense had also filed an MIL to preclude Mike from claiming the Defendant had attempted to avoid his responsibility, which also was granted.

Pre Trial Reptile:

Prior to trial, Mike focused this case many times. Mike was interested in discovering how Bubba would react to his client’s age, pre-existing diabetes, kidney, and heart trouble, and the fact that the majority of these specialists failed to make any mention of the wreck or Mike’s client’s neck or back pain in their records. Mike used Don Keenan’s Witness Prep Method to help his client develop his Major truths, so that he could defend himself against these traps at trial. One of his client’s major truths was that he told his doctors about his neck and back pain and that he did not know why the information was not in the records. Another key truth was that he only wanted his medical bills paid and nothing more.

After the wreck, Mike’s client had been diagnosed with neck and back sprain and strains.  It was during the Reptile in Trial College Course last year that Mike learned to embrace the term “whiplash” instead of running from it. Mike focused the term and discovered that the focus group not only understood the severity of the type injuries that can follow a whiplash but also the potential for permanent injury.

His focus group participants did not believe the term had a negative connection, and they understood that a person could develop lifelong problems because of a whiplash injury, even without a lot of visible vehicle damage. This gave Mike confidence knowing that a Jury could connect his client’s injuries, despite the low visible damage to the vehicles.

Reptiled the case:

Voir dire: 

Under Nevada’s Short Trial rules, Mike only had 30 minutes for jury selection and only 2 ½ hours more or the rest of his case. Mike’s entire Voir Dire stemmed from the information he learned watching the Keenan Ball Voir Dire video, along with what he learned about Rat killing questions. Mike went off-code by asking the 12-person panel about their passions, their understandings of what other people think about trial lawyers, and if they would permit him to earn their trust. He talked about the safety rules, and he addressed how the jury had to follow traffic safety rules when they came to the Courtroom that morning. Furthermore, Mike focused on what it means to be accountable for your actions. He used the analogy of the broken window, and he trusted his WWDYL questions to get rid of 3 rats using for-cause objections, even though his prior instincts would have been to keep 2 of them on the panel. Mike believes the information he learned at the Reptile College truly provided him a jury that could keep an open mind.

Case in Chief:

Mike called the Defendant as his first witness to use him to establish the safety rules. Mike’s bumper sticker for the case was the one his paralegal came up with – “the best prevention is to pay attention.” Interestingly, when the Defendant took the stand and Mike asked him whether he had ever heard that bumper sticker before, the Defendant answered “yes”.  Mike then asked the Defendant to explain what the statement meant.

This led Mike into his safety rules. Mike wrote his safety rules on a flip board for the jury to see. Mike’s first safety rule went as follows: “a driver must pay proper attention to road ahead to prevent serious injury and death to us all”. However, the Defense objected to use of his safety rules, and the Judge sustained the objection concluding they were improper reiterating, “This case is only about damages.” Despite the objection, the jury saw Mike’s safety rules and also saw how afraid of them the Defense was.

The Judge also went on to rule that Mike could not use the term “safety rule” at trial.  However, Mike was a woodpecker. So Mike had the Defendant admit to the jury that he had read the NV Driver’s handbook, where it states in its preamble that this book contains the “rules of the road,” that are in place “for driver safety.” The Defendant agreed that the DMV Handbook said those things and that it did contain the traffic rules designed to protect everyone on the roadways.  As a result, for the rest of the trial Mike was able to refer to the traffic safety rules as the “Rules of the Road.”

Mike then had the Defendant “Spread the Tentacles of Danger” by asking the Defendant to name the worst that can happen when you do not follow the “Rules of the Road.” The Defendant agreed that a driver must pay proper attention to the road ahead to protect us all from harm, that a Driver must follow a safe distance behind the cars ahead to protect us all from harm, and that a driver must remove potential distractions from inside his vehicle to protect us all from harm.

The answers the Defendant gave matched up perfectly with Mike’s safety rules. Mike’s goal during direct was for the Defendant to give credence to his safety rules, so that the jury could understand that Defendant was aware of the safety rules when he violated them.

Mike then asked the defendant to admit to his Interrogatory answers and deposition where he stated that Mike’s client had “stopped for no reason.” This drew objections, which Judge sustained. Mike then asked the Defendant if he thought Mike’s client was lying about being hurt. Without hearing, an objection from the Defense, the Judge told the Defendant not to answer and asked the jury to disregard that question. Mike rephrased and asked the Defendant, “Do you believe anyone could have been hurt in this collision.” The judge allowed it. The Defendant said “No” and went on to say that he did not think that anyone could have been injured in this collision. This was an important part of Mike’s goal of polarizing the case.

Mike then placed his client’s treating chiropractor on the stand.  Mike’s client had been in a wreck 4 years earlier suffering neck and shoulder pain, and he had filed suit on that case as well. Rather than be nervous as to how the jury would react, using techniques learned from the MIST book, Mike had his chiropractor explain to the jury that the prior wreck had made his client more susceptible to injury in this one.

He also explained that factors such as age, physical condition, and not bracing for the wreck all combined to cause a whiplash injury. The chiropractor then used demonstrative evidence to educate the jury on the mechanism of injury, and he also addressed the opposing expert’s claim that the treatment failed to document the Plaintiff’s condition.

To bring even more credibility to his client’s testimony, Mike had his client’s boss, wife, daughter, and co-worker testify as “before and after” witnesses. Each of them verified the changes in his work habits and lifestyle since the wreck. They testified to the Plaintiff’s ongoing struggle, and his willingness to continue to fight.

The theme of Defendant’s case was the client was a cheat. The Defense hired a chiropractor from California to review and comment on Mike’s client’s unrelated medical records – about 700 pages, and to heavily criticize the care he had received from his chiropractor.

Mike chose on cross-exam to keep it brief with the DME to avoid justifying his existence. Mike wanted to place him on-code by asking a few key questions.  Mike asked whether he had conducted a physical exam. The DME did not. During the Defendant’s case-in-chief the Defense had repeatedly insinuated that Mike’s client was dishonest and opportunistic. They insinuated that Mike’s client must be faking due to the lack of visible damage to the cars, because Mike’s client told the police officer that he was not hurt at the scene and claimed not to have pain for two days, because he waited a week before he went to the doctor, and continued to clock in at work.

Mike asked the DME non-leading questions about whether he was aware that his client told the police officer that he was not hurt and that he waited seven days to go to the chiropractor. The DME proudly said he was aware of those things. The DME also testified that he was aware that the Plaintiff had not missed any work. Mike then asked the DME if a “faker” would do these things. The DME could not answer, but the seeds were planted with the jury.  Mike followed up by asking the DME about his pay and the amount of work he does for the Defense. This was objected to by the Defense but overruled by the Judge.

Mike then used his client’s employee files to show that his yearly reviews constantly raved about his honesty and high ethical standards. The jury could clearly see that the Defenses’ characterization of the Plaintiff was underserved and false, and that the DME was simply a hired gun for the Defense. Using the techniques, he learned from the “Reptile in the Mist” book, Mike was able to effectively present the DME as a “painted lady.”

Closing:

Mike credits the arguments he made in his Closing to Don Keenan. During his close, Mike utilized the blog article Don Keenan wrote about the “Price an average American has to pay for justice”. Mike started his Closing by discussing the importance of the civil jury system in America. Mike discussed how America is set apart from the rest of the world in that a person’s peers determine the outcome of our conflicts.

Mike explained to the jury that while they might think they were on this jury by chance, they were instead “chosen” to render a verdict in this case. Mike then reminded them of the rules of the road, their purpose, and he used the Defendant’s own testimony to remind of what could happen when a person chooses not follow the rules of the road. Mike talked about low property damage, and analogized the low visible damage to his client’s vehicle to eggs in an egg carton – by stating that the condition of the carton rarely reflects the condition of the eggs inside.

Mike also discussed how accepting fault is not the same as making things right. He tied that back in to the broken window analogy he used during jury selection. Mike discussed how a Defendant cannot just admit he was wrong, but that he also had to make it right. Mike explained that the Defendant made a choice not to pay attention, and that choice placed everyone at risk. During his close, Mike placed the phrase “Conduct rewarded is conducted repeated” on the board for the jury to read.

Mike then reinforced the jury’s importance to the community when he read to the jury an inscription on the wall in the main hall of the Court House which says “when you have protected one person, you have protected everyone.”  At the end of his Closing, Mike  asked the jury for a verdict of $25,000.  The Defense argued in its close that Plaintiff should get nothing.

Verdict:

After deliberating for an hour, the jury returned with a verdict of $25,000. The Judge did not let them ask questions of jury, but as they left the Courtroom all four of the jurors shook Mike and his client’s hands.

Mike was humbled by how the jury truly did “ring the bell of justice hard and loud,” and he felt they truly understood that they were “chosen” as jurors for a reason.   Mike witnessed how the Plaintiffs’ Bar truly can retake the High Ground even when the deck is stacked against us, and how the Reptile will allow a Plaintiff to cut through BS and reveal the truth to the jury.

In Mike’s opinion if we utilize the common sense and the Black letter law techniques that we are being taught, then we should feel confident that the jury would get it right. Despite this being a MIST case, Mike believed there is no substitute for hard work and preparation. A great part of which comes down to simply utilizing the techniques taught in the Reptile books and in the Reptile Courses.

According to Mike, the best way to change the tort reform system is by winning the smaller cases. Mike and his partner have challenged themselves and all of their associates to try a minimum of two cases this year. Congratulations to Mike on a great job and a great verdict for his client!

By Don Keenan

Have you ever had a deponent in the face of a very simple question, ask you:

“I don’t understand what you’re asking counselor?”

“I’ve answered that question before. How many times do you want me to answer it?”

“That’s a nonsensical question I’m incapable of answering.”

“I’ll need to have that question repeated counselor.”

I teach at my referring attorney workshops in Seaside, Fla., that you should be able to detect one of these rascals by gathering up prior depositions and trial transcripts.  A leopard will not change its spots; therefore, shame on you if you don’t understand what’s coming in advance.

MAJOR TRUTH: Try to ascertain the reason for the obstruction, which is likely due to one of two possible motives.

First is that the deponent just wants to mess with you, maul you, and send you the message that he ain’t giving up much of anything (and anything he does give up, you’ve got to earn).

The second reason could be – and most frequently is – because the expert is just trying to buy time, to understand where you’re coming from and to form the best possible answer to give you without helping your case.

Use your gut instinct to determine which of these motives is behind it. Once you’ve determined it, go about shootin’ this egg sucking dog by one or all of the following three steps:

Step #1: WRITE THE QUESTION DOWN. 

You should already have your powerful bulls-eye questions written down verbatim, so therefore peel off those questions on separate sheets of paper and when the deponent starts giving you the “I don’t understand, etc., routine” you can simply say to them, “Maybe you’ll understand it if you see it in writing. Perhaps your visual skills are better than your audio skills at understanding – so here, let me hand you a piece of paper with my exact question written on it.”

Then go about to slicing and dicing the deponent: Do you agree that this question is simple; do you agree that the words within the question are easy to understand; do you agree that the jury and my client have the right to simple answers?

Just make sure you keep these questions tight. Be the woodpecker and stay along the egg sucking dog until you’ve got him. If you have to run through a half a dozen of these questions by showing him the questions in writing, then just let him know that as long as it takes, you’re going to stay on him.

STEP #2: Use the Dictionary.

If you know in advance that you’re going to have a difficult witness, start off the deposition by telling him that you have read more depositions and trial transcripts then you can even count, but the thing you’ve realized is that he has difficulty with a lot of the questions due to understanding the meaning of the words being used.

Now, we’ve already covered that you’ve sent him the message (even before the first question) that you know he’s a leopard and that you know about the spots. To many such deponents, this can begin the Chinese water torture of intimidation. Once you’ve established you know the game, tell him that you’ve brought a dictionary with you to the deposition (point to where it is, on the middle of your table), and tell him you’ve brought it to help everybody out with understanding the words in the questions being asked. I’ll say to the deponent, “Whenever there is a word you don’t understand, then I invite you, sir, to use this wonderful book of meaning and get a definition to which you agree. I assure you if it’s in this book then I’ll also agree with the meaning so we can move on and not get entrenched with wrestling over a word’s meaning. The dictionary will be the referee.”

A photo illustration shows a 2nd edition copy of The Macquarie Concise Dictionary, the authority on the English language in Australia, on a coffee table in Sydney October 17, 2012. REUTERS/Tim Wimborne

Once again you have to be persistent; just as soon as they start babbling about how they don’t understand the question, start sliding the dictionary towards them. I’ve had depositions where I’ve had to do that four or five times but then the next time when I start to slide it, he knows he’s cooked and will back off and I’ll get an answer I want.

Tip: Don’t get a complicated full dictionary that offers up five meanings for every word (this will just play into the experts’ hands); if possible, get a simple (almost childlike) dictionary. In fact, if you’re comfortable with a children’s dictionary then, by all means, use it. The jury is not gonna disagree with what’s in the children’s dictionary and Lord help the witness who does.

Step #3: Call the Witness out.

Any of you who have been to my depositions seminar know that from time to time I will “call out” a deponent for their body language. If they fidget with their hands, their neck gets red, they look up at the ceiling, etc., I’ll call ‘em out on it and ask why they are fidgeting, why is their neck getting red? Is the answer to my question written on the ceiling – is that why they’re looking up? This technique of calling a witness out can shake the witness’ confidence, especially if you expose something that they didn’t want anybody to know.

The beauty of the call out is that, even if the jury had not been paying attention to this body language before, after you call them out the jury will surely pay exclusive attention to the body language.

But it’s not the body language I want to recommend to you in this article; rather, it’s another type of “call out.” Put the cards on the table and call the deponent out: “Some people would believe what you just said is simply buying time to answer the question. Are you buying time?”

Bam, you’ve exposed them. If that’s the true reason why they’re being obstinate, then that’s a knife through the gut. But of equal importance, it gives the jury a reason why they’re not answering the question. Remember Chapter 2 in the Reptile book, which teaches the Reptile^© despises legalese, medical-ese and engineer-ese. Anytime you complicate things with that type of questioning, you strengthen the bubble that threatens them and Bubble will not trust it.

There is another technique that I would advise for the most aggressive woodpeckers, which is what I call the “rope-a-dope” named after the great Muhammad Ali (who is, in my opinion, the most famous fighter in history). The name came about during his title fight with Joe Frazier in Africa; the “rumble in the jungle” fight.

You see, Joe Frazier did not have fancy footwork. He knew only one movement and that was straight ahead; he was like a human battering ram that clearly didn’t have the foot movement like Ali (float like a butterfly and sting like a bee). He never retreated, he always came forward; thus, Ali devised the rope a dope move to beat Frazier.

The rope a dope is pretty much what it sounds like; you plant your backside next to the ring’s rope and put your boxing gloves around your face, keeping your elbows tight and then you let your opponent pound away. Ali later recounted that he concentrated on abdominal work with equal voracity as his bag work because he wanted his opponent to be able to deliver as many body shots as possible without hurting him. So we have the rope a dope in action in the heavy weight fight with round after round after round of Ali with his back on the ropes taking punch after punch. The brilliance of the strategy is that sooner or later your opponent is going to tire out, which is exactly what Frazier did. He lost his arm strength in the later rounds and could not protect his head and Ali proceeded with lighting speed to make Frazier’s face look like it came out a meat grinder. Google Frazier’s pictures after the fight and you’ll see what I mean.

I’ve enjoyed my reminiscence, thinking back on one of the great fights of boxing history… But what has that got to do with taking a deposition?

We actually have something better than a fighter – we can use rope a dope and let the deponent continue to argue, be obstinate, squirt the octopus ink in the water and at some point, we don’t even need to knock them out. Bubba knocks them out by no longer listening.  (I’ll say it again: Remember the Reptile^© celebrates simplicity and clarity and hates complexity, confusion and ambiguity.) If you don’t like the “rope a dope” idea then I will encourage you to embrace the “give ‘em enough rope to hang themselves” concept. Either way they will expose themselves to the jury and they will knock themselves out.

This is obviously easy to do even if you’re a puppy lawyer and doesn’t require nearly the same amount of skills the other steps above require. So I’ve provided this simply as a default safety net for use as you see fit.

Bottom Line: An obstinate, difficult witness can be a gift. Know how to use it.

By David Ball

Note from Papa Don: It’s time to hear from our good friend David Ball. Read it, and then read it again. It’s a big one.

Behind almost every systems failure is a macro systems failure, too often ignored. The macro failure reveals the most important safety duty anyone ever has. Violating that duty is one of the most needless and dangerous things anyone can do. Meeting that duty is the most effective safety measure ever invented.

Focus group this one and you’ll be astonished.

To start, let me reword that first sentence a bit better:

Behind almost every systems violation failure is a macro systems violation failure too often ignored.

As we well know, jurors forgive failure – because failure implies inadvertence. The Reptile^© ignores inadvertence because no one can keep people from doing inadvertent things because there’s no volition involved. That’s what inadvertent means. To err, after all, is human.

On the other hand, violation is volitional, and that grabs the Reptile’s undivided attention.

Now let’s look at the bigger systems violation – the Macro violation – that lies behind the violations we usually look at.

We’ve ignored the Macro too long, even though it’s where the Reptile^© really goes to town – rides into town – armed to the teeth, and if you haven’t seen the Reptile^© armed to the teeth, you ain’t seen nothin’.

When you find the Macro systems violation, it gets the Reptile^© going, even when the violation that hurt your client seems inadvertent. The Macro can even turn an act of God into a systems violation. An earthquake is an act of God. But buildings in earthquake zones must be earthquake-resistant, because long ago engineers studied exactly how buildings fall down in earthquakes and developed methods to prevent it. Bingo! An act of God is now preventable negligence. The same rings true in every single field. The most egregious danger is one that should have been investigated and fixed once it injured someone the first (second, third, fourth …nth) time. It’s the mother of all systems violations. This is the Macro.

Previous events supply more than mere notice. The analysis/investigation duty a previous event creates can be the defendant’s most outrageous violation in the case.

Whether the specific incident that injured your client was a violation or something inadvertent, (or an act of God, or voodoo from the sky, or just plain bad luck) if it ever happened before (anywhere, anytime, anyplace), then it created a duty for the company to investigate it and as far as possible fix it. The earlier event creates absolute safety requirements. The company must:

1) Investigate to determine why something went wrong, and

2) On that basis, take the steps necessary to prevent it in the future.

RULE: When a company [or hospital, public facility, manufacturing company, etc.] has something go wrong that injures, the company must investigate why it happened – and then take the necessary steps to keep the same thing from injuring people in the future.

RULE: When a company [or hospital, public facility, manufacturing company, etc.] knows that something has gone wrong at a different company in its field, the company must investigate why it happened and take the necessary steps to prevent the same thing from injuring people in the future.

Even if your defendant’s system has not failed this way before, they should have followed lessons learned by failures in other similar systems. In other words, if Chrysler knows that Ford did something that injured someone, Chrysler must investigate it so they can keep from doing it themselves in the future.

These are the “Stop-It-Next-Time” rules. (As you’ll read in an upcoming blog, you should label your rules.) Every safety expert, not to mention everyone’s common sense, will support and insist on the Stop-It-Next-Time rule. There’s no defense to violating it.

As Papa Don points out, safety rules are founded in blood (injuries, death, etc.). That blood must trigger investigation and remedy. Otherwise the defendant is liable to the next person it injures.

The human brain is hard-wired to follow the Stop-It-Next-Time rule. It is among the most important survival traits we have. We could not have survived as a species without it.

BRIDGES

You can talk about the following in trial: The 19^th and first half of the 20^th centuries were the time of bridge-building throughout America. Vast spans went up all over the place. Most stayed up. Some fell down.

Ironically, the reason most bridges are now safe (except for poor maintenance) is that so many collapsed back in the day. This is because whenever a bridge collapsed anywhere, bridge engineers flocked to the site to learn why. Once they found out, they made sure no one ever allowed that particular problem to arise again. They followed the Stop-It-Next-Time rule.

For example, we had only one “Galloping Nelly”: The Tacoma Narrows Bridge, which fell down months after it opened in 1940. Investigation showed it had been designed without taking “simple harmonic motion” into account. Once the engineers discovered this cause, simple harmonic motion became a primary topic in every freshman engineering class. From then on, no more bridges (and hardly anything else) ever fell down due to a simple harmonic motion problem – unless the design engineer had cut class during that topic.

If engineers had not studied Galloping Nelly to find out why it fell, many – maybe all – bridges built since then would sooner or later collapse for the same reason. And because of this, the hospital/construction company/car manufacturer/whoever’s error that injured/killed your client should have been prevented years earlier – after it happened the first time, and certainly after it happened numerous times.

When you don’t fix something it stays broken.

Let’s say a trucking company learns that one of its drivers had a bad driving record the company did not know about. And that bad driver wrecked and killed someone. The company cannot hide behind saying, “Oh, he kept his bad record a secret from us.” The company has already learned from its own experience – and the experience of other trucking companies – that job applicants sometimes hide their bad driving records. That makes it foreseeable. So the company is obligated to do an exhaustive search on every applicant. Again: the Stop-It-Next-Time rule. When a company [hospital, public facility, manufacturing company, etc.] has something go wrong and injure someone, the company must investigate why – and then take the necessary steps to keep the same thing from going wrong and injuring someone again.

In this way, go beyond using previous events as notice. Show how they lead to a specific rule violation in your case, and how it is the most serious possible safety violation. It’s an outrageous violation and it makes your Tentacles of Danger as menacing as Tentacles can be, because the Stop-It-Next-Time rule is relevant to almost every way in which people can be injured.

And this Macro gives you intentional negligence every time, even when (on the surface) it looks like simple negligence or an accident or an act of God. So when lightning strikes your golf-playing client, the golf course owners who knew this had happened before (on their own course or others) had to follow the Stop-It-Next-Time rule. Not by chastising God but by monitoring weather and then sounding alarms whenever lightning is a possibility.

In hospitals, accidental overdosing due to a label-reading error seems terribly accidental and thus barely culpable. But hospitals know that label errors occur and how serious the consequences have already been. So they must follow the Stop-It-Next-Time rule. For example, the hospital finds out a particular medicine used in emergencies is often given in the wrong and thus lethal dose. So the hospital must figure out how to make sure that error stops happening. If they follow the Stop-It-Next-Time rule, they might, for example, now require double-checking of labels at every stage, from hospital pharmacy through picking up the bottle through injection: two sets of eyes must see and approve. Or, different doses must be in different shapes and colors of bottles that cannot be mistaken for each other. Or whatever other measures that can Stop-It-Next-Time.

These measures can be set up when there’s plenty of time to think about and implement it, rather than during the instant of the emergency situation. So failure to do it is far more blameworthy. Violation of the Don’t-Do-It-Again rule is intentional – one must choose to ignore a known danger – and will strike jurors as a thousand times more outrageous than a nurse’s simple and inadvertent label-reading error in an emergency.

THE FAA EFFECT. When an airplane crashes, the FAA spends months, even years, investigating until they find the cause. Based on what learn, they mandate the fix(es). This has made flying go from our most dangerous form of transportation into the safest. If the FAA had not been routinely following the Stop-It-Next-Time rule for decades, then flying to a Reptile^© College would be ridiculously dangerous instead of one of the safest ways to travel.

Failure analysis and correction constitute our single greatest tool against injury. Companies who ignore it are the biggest possible menace to the community. You multiply the Tentacles of Danger exponentially by asking the offending company, “Was your level of investigation the last time this happened greater, less, or the same as it has been with other problems you’ve had that injured people?” Think it through and you’ll see that all three possible answers hurt them. And the two answers they can use – greater or the same – shows that they routinely act without regard for human safety.

And here’s the beauty of it: Every single time the same thing happened in the past without the company having followed the Stop-It-Next-Time rule is a separate act of negligence that directly led to hurting your client. They violated the rule the first time – and then again, and again and again, and again . . . all the way to your client. The initial violation and each one following are separate proximate causes of your client’s injury. These are big-time dominoes.

In most situations, this means an act that injured your client, which might not in itself have been at punitive levels now is – because violating the Stop-It-Next-Time violation is always conscious, willful, gross, reckless, and even malicious.

It’s also a Reptilian outrage.

And where a judge won’t let you argue community safety, the tentacles when someone violates the Stop-It-Next-Time rule argues it for you.

The greatest offender is the medical profession. They don’t merely ignore the cause of injuries; they aggressively hide them. One reason many people sue is just to find out what the hell really killed Uncle Jerry. The second reason is that they want a successful lawsuit to do what following the Stop-It-Next-Time rule should have done the first time(s) it happened.

With the exception of the commercial airline industry, virtually every other kind of company is almost as bad. Pharmaceuticals. Construction. Manufacturing. Trucking, and other kinds of land transportation. Premises owners. They keep hurting us in the same way over and over. That would be impossible if they met their Stop-It-Next-Time duty.

To a safety engineer, every kind of safety “failure” is the best possible learning experience. There is no better foundation on which to make things safer. There is nothing worse to ignore.

This Macro systems violation, the mother of all systems violations, should become a major part of your work. Never do another case without thoroughly searching for and dealing with it. It even magnifies emotional damages, because your client feels a hundred times worse when he learns his injury should have been prevented by measures the company was required to take years before he got hurt.

Want to read more? See To Engineer is Human (Petroski) and Black Box Thinking (Syed).

By Don Keenan

We’ve traveled over the first three important parts of witness preparation:

1. Getting to the true self-awareness/authenticity,

2. Removing the guilt, and

3. Embedding the Major Truths of the client.

In our journey, we have recognized that the Reptile^© is at the core of each of those important client realizations. Before we move on, we need to address another equally important area of the witness preparation and that is what frequently occurs: The client’s contributory/comparative fault.

The survival Reptile^© in us simply wants to ignore any arguable contributory/comparative fault within our client. But if we ignore it, will it go away? No, woodpeckers, that dog won’t hunt. Not only will it not go away, it can potentially kill your case.

Today we’re going to talk about how to embrace contributory/comparative fault and improve upon it in order to, in many instances, win your case. This topic is so important that I put it on a separate DVD which is included on the Keenan Method of Witness Preparation series. Because the DVD goes into quite a bit of detail on this subject, so you should review it at some point.

THE STORY/PARABLE

You all know by now that I enjoy teaching through stories/parables and will do so now.

Shortly after the Keenan Method to Wit Prep DVD series came out in 2009, I received a call from an out-of-state lawyer who said he had a great damages case but was afraid the contributory/comparative fault would either lower the damages or result in a defense verdict.  Sound familiar?

He outlined the facts: His client was an Olympic athlete in training for some type of triathlon and was in the mountain roads of Colorado heading up a hill when she was confronted by a truck, speeding and coming across the center line in the opposite direction. The bicycle athlete swerved to the right to avoid certain death and became paralyzed from the waist down in the process.

I thought for a moment and said it sounded like a great case, why do you need me? He said his client is a very truthful person who admitted to being two feet outside the designated bike lane. I must admit that when I first heard it, I saw it as bad news. So we worked out an agreement, as customary, and ran a couple focus groups to find out just how bad the bad news was.

One focus group put 7 percent negligence on the bike rider and a second one put it at 5 percent. We scheduled two focus groups in the venue right before we scheduled the plaintiff’s deposition. One focus group put fault at 3 percent and the other 8 percent negligence on the bike rider.

If you want verification of how strong compliance with rules is by not only the defendant but also the plaintiff, listen to this: All four focus groups autopsied the mechanics of how the wreck occurred and each and every one of them came to the realization that the woman being two feet outside the bike lane had absolutely no effect on her injuries.

She swerved to avoid the truck and the focus group found that if she would have been smack in the middle of the bike path, she would have swerved anyway and the same injuries would have occurred. However (and this was the big lesson), no one was going to give her a pass on breaking the rules. She should have been in the bike lane but she wasn’t; therefore, she had to bear a certain percentage of the fault.

Now all you law review folks and order of the cliff Bubbas will probably argue that unless the rule violation caused damage, then it should be irrelevant. I’m not smart enough to figure that one out and don’t care because I can live with (and, in fact, embrace) the 3 to 8 percent range.  It’s a gift, which you will realize in a moment.

So I began to prepare this beautiful, spirited young lady per the seven steps on the KWP template. When we got to her concerns, it was no surprise that she said her concern was that people would blame her for being outside the bike lane.

Because she brought it up first and was honest about it, I knew everything would turn out fine.

Now, do you think I jumped in and told her about all the focus groups and the findings and the rationale? Hell no! I asked her to peel back the onion and reveal what percentage of responsibility she felt she had. (There’s a beautiful story regarding the details of how she answered this question, which I’ll leave to those who watch the DVD.) She came to rest at 5 percent and did state emphatically that it was the most painful, difficult question she ever had to ask herself.

Over the next couple of days, I worked through the remainder of the witness preparation template and I went into the deposition confident – no, there’s a better word, overpowered with how this would work out.

The Black Hat reached the point of asking, “You don’t accept any responsibility for the outcome of your injuries, do you?” (Just look at how that question is phrased; mean spirited, condescending.) She replied in a mild mannered voice, “Yes, I do.”

In hearing that answer, the Black Hat simply asked the mean spirited question again, as if he hadn’t heard it or he didn’t believe it. Upon second asking she said, “Sir, I just answered that question and yes, I do accept partial responsibility for what’s happened to me.”

I’ll add here that Abraham Lincoln once said that if you want to confuse and conflict your enemy, just tell them the truth because they won’t believe it.

It took the Black Hat a moment or two to compose himself, but he rebounded to typical Black Hat blabbering. “If you say it’s a percent then it could be 7 percent, isn’t that true?” and that dance lasted for five or six questions until he got to the point where he closed his legal pad and out the door he went.

Several days later, before the scheduled mediation, the case settled for policy limits.

I could just imagine the Black Hat, going back to the Taliban cave and telling his troops that this beautiful athlete in a wheelchair admitted 5 percent responsibility. He no doubt said something like, “How in the name in heaven are we going to say zero fault on our driver when he was speeding, had bad brakes and crossed the center line?!”

So there you have it my fellow Bubbas and Bubbettes, the case became bulletproof when the defense realized they could not try the case, looking into the jury’s eyes, and telling them the defendant was zero percent responsible.

We’ve done the deposition of the plaintiff admitting a certain percentage many times and it usually follows the same outcome: The Black Hats realize they’re cooked; there is nowhere to run except, of course, the stipulation. And they know by now they’re going to get hammered with the Reptile^© in the stipulated case.

THE TIPPING POINT

Let me now address the ultimate tipping point in that case, which I believe will happen in all of your cases as well: When you compare the fault of the plaintiff versus the fault of the defendant and spread the tentacles of harm (remember there’s three legs on the STD stool, and here we’re talking solely about the “harms” leg), then your case goes on steroids.

Let’s look at the harm caused by a bicycle being two feet out of the bike lane, traveling up hill.  The only harm that’s going to occur is to the bicyclist. Now let’s look at the harm caused by a speeding truck with bad brakes crossing the center line. That harm is death, brain damage, amputation, paralysis, blindness and the list goes on. Ask Bubba, between the trucking company and driver versus the bicyclist – who poses the greatest harm? Once again the true core of the Reptile^© trumps the tricks and manipulation of the Black Hats.

ADDITIONAL COMMENTS

Let me anticipate some of your questions… What happens when the percentage on the plaintiff is greater than a mere 5 percent? Well, we focus grouped that issue a number of times and we’ve actually gone as high as 30 percent on the plaintiff and still it’s had no net effect on the outcome. Remember the percentage is only one part of it. The other (more important) part is the harm posed by the defendant versus the harm of the plaintiff. Every case that we’ve done lines up just about the way the truck/driver and bicyclist lined up; no harm by the bicyclist’s actions except to herself and huge community harm by the trucking company and driver.

But it is very important: Do NOT venture into guessing about the percentage. You MUST do focus groups (yes, I said groups – plural – because I don’t know if you want to hang the destiny of your case on one focus group, do you?). The two or more focus groups will give you comfort and soft landing for what will occur in the courtroom. You don’t want to be surprised.

Also, do not underestimate the power of the Black Hat’s realization that they have no credibility in trying the case as a zero percent on their client. That course almost rises to the level of a lie and you know what happens when that occurs.

The final question I can hear you asking is, “What happens if the Black Hats admit a percentage but it’s not 50 percent?” Well, to this question my friends, I have to tell you that I’ve not confronted that yet. We’ve not tested it yet. But we are now at a time where the Black Hats are throwing anything and everything on the wall to see what sticks, so it’s probably coming. We’ll deal with it when it does.

I had a recent verification of the power of client admitting fault with my good friend Tye Smith, a solid lawyer from Oklahoma and KBC faculty member. I’ve had the pleasure of working as co-counsel with Tye on several products cases.

Recently, Tye had a tractor-trailer case in which the focus group indicated 15 percent fault on his client.  Tye proceeded to trial, mentioning in opening statement, “Ladies and gentlemen, my client is accepting partial responsibility for this wreck.”

That’s all he said.

The jury hung up 11 to one in favor of the plaintiff and the judge called the jurors in to discuss their preliminary findings with the lawyers and carrier. During that debriefing, the judge asked whether they put any fault on the plaintiff and they said yes (the answer was 15 percent, the exact figure that the focus group assigned). The results of this case are even more astounding given that the courtroom watchers (to include the judge) thought, frankly, that the plaintiff’s fault was high – almost in the category of a defense verdict.  It was also remarkable because Tye never told the jury that 15 percent amount; they got there all on their own. To have them mirror exactly what the focus group said is another testament to the power of the focus group.  Thus, proceeding without focus groups is foolhardy at best.

BOTTOM LINE: Do not underestimate the power of the truth in admitting that your client was partially responsible. To do so creates a powerful balance of credibility between the plaintiff and the defense saying “no liability.” And to do this effectively can be a real game changer, not only in your case but eventually within your practice as well.

By: MICHAEL PETERSON, KEENAN LAW FIRM

This month’s Reptile© Superstar is Andrew Garza. Attorney Garza is a Connecticut native. Andrew currently works at the Law Offices of Andrew P. Garza, L.L.C, where he specializes in personal injury, workers’ compensation, and criminal defense. He and his Reptile©-partner, Ryan McKeen, will soon open the Connecticut Trial Firm, LLC, which will try Reptile© cases into the future.

Outside of the law, Andrew enjoys camping, carpentry, tennis, softball, snowboarding, and cooking. He currently lives in Hartford County, Connecticut with his wife and young son.

Introduction to Reptile©:

His partner and friend, Ryan McKeen, introduced Andrew to the Reptile©. Andrew attended the Welcome to the Revolution Seminar in December of 2014. He has graduated from a few courses at the Keenan Ball College and has purchased both The Keenan Edge 1 and 2.  Andrew was skeptical when he first heard of the Reptile©. After attending his first seminar, he realized the Reptile© was not a bag of tricks. According to Andrew, “If you work hard to embed the teachings of the College in your practice and in your life, then you should expect the trial success to follow.” All Andrew has heard since his introduction to the Reptile© was that “The jury does not care about his client.”

It was not until last October that Andrew truly understood the meaning of that statement. It was his 4^th Reptile© focus group. Andrew was watching the focus group in the background as another lawyer was leading the discussion. Andrew began to notice, that as the other lawyer began to shift the focus of the discussion towards the Plaintiff the negative attribution from the focus group participants began to pour out. The lack of sympathy and viciousness that they showed towards the Plaintiff was eye opening. From that day, Andrew has made a concerted effort to present the case from the Defendant’s perspective.

Facts of the Case:

This case involved a T-bone collision. The Defendant ran a stop sign and T-boned the car that Andrew’s client was in. The Plaintiff suffered soft tissue injuries because of the wreck. The client’s medical bills amounted to $24,000. Andrew and Ryan represented the passenger and another attorney represented the driver. The biggest hurdle in the case was the fact that Andrew and Ryan were trying this case with a non-Reptile© attorney. This attorney believed he and Ryan should focus the case on the plaintiffs. Andrew and Ryan disagreed because they wanted to focus the case on the Defendant’s actions. Another issue was the Plaintiff’s lack of treatment. The Plaintiff finished treatment about a year and half from the trial date. Ryan wanted to limit her testimony at trial, as it would only place them on code. The co-plaintiff’s attorney spent significant time on his client’s injuries as he thought she was the best person to discuss her injuries.

Outside of these internal issues, the Defendant opted to take responsibility at scene, but then denied liability at his deposition and during discovery. The Defense then readmitted liability an hour prior to opening statements. Prior to accepting liability, the Defense made the argument that the stop sign was obstructing the Defendant’s view. The Defense also accused the Plaintiff of faking her injuries, despite never conducting a medical examination prior trial. The Defense’s last offer prior to jury selection was $30,000. The Plaintiff refused the offer.

Pre Trial Reptile©:

The biggest issue in the case was the Plaintiff’s current condition. The Plaintiff claimed that she was still recovering from her injuries. The co-plaintiff’s attorney wanted to spend significant time discussing his client’s injuries. Andrew, being a student of the Reptile©, did not believe in this strategy, and so he and Ryan organized a focus group to test this theory. They used this Focus Group to determine whether they should have their client testify to her condition at trial. Andrew told the focus group about his client’s current health condition and the limitations that her injury placed on her daily activities.

Andrew was not surprised when the focus group came back with negative attribution. They saw her as whiner, and did not believe that she was as hurt as she claimed to be. The focus group’s negative attribution taught them to leave all testimony concerning the client’s current health condition with their before and after witnesses. Ryan and Andrew also deployed Keenan’s Witness Preparation method to ensure that their client would walk into court armed with her truths so that she would make a favorable impression upon the jury.

Reptiled the case:

During jury selection, Andrew walked the jury through the apology stool and the definition of accountability. He asked the jury what it means to take responsibility and whether their definition involves making the wrong right. Andrew asked the jury about their passions and discussed the concept of safety rules. Andrew asked the venire whether they believed that people have the right to violate the safety rules of the community. All of them said, “No.” Andrew used his WWDYL questions and burden of proof questions to eliminate the rats. He also asked the jury permission to earn their trust.

Opening:

The Defendant admitted to liability prior to Andrew’s opening. Andrew figured they might admit liability, which is why he chose to center his case on the Defendant’s lack of accountability. During his Opening, Andrew further reiterated what it means to take full responsibility, and informed the jury of his safety rules. His safety rule went as follows: All drivers must stop at stop signs to prevent death and harm. Andrew’s bumper sticker went as follows: “If you remember one thing, admitting liability is not the same thing as taking responsibility.”

Andrew’s first witness was the eyewitness to the wreck. Andrew used her testimony to spread the spread the tentacles. He asked her such questions as; “Where did the wreck take place? Was type of community is this? What did you hear during the impact? Did you hear crashing glass, twisted metal, etc.?” The eyewitness had a young child with her at the time of the collision, and so part of her testimony spoke to the fact that her child could have been in the car on the day of the wreck and was playing in a yard near the intersection.

Andrew called the Defendant next. If Andrew could redo this trial, then he would have reconsidered placing the Defendant on the stand. The co-plaintiff’s attorney handled the Defendant’s direct, and so without knowledge of the Reptile©, he had a tendency to go on code by attacking the likeable and elderly Defendant.  The attorney spent considerable time discussing the speed of the car and the Plaintiff’s health rather than focusing on the Defendant’s false repentance.

Andrew placed his client on the stand next. He had her discuss the mechanism of injury, her treatment, and the length of her examination. Andrew listened to his focus groups, and had his B&A witnesses talk about his client’s current condition. Andrew focused heavily on Don Keenan’s before and after witness article when he compiled his questions for their direct. He had each witness describe how long he or she had known the plaintiff. Then, he had them all tell a personal story about what each of them noticed about the Plaintiff’s condition prior to and after the wreck.

The witnesses described the client as a social and mobile person. However, since the injury she simply stays home and sleeps. They believed that she was afraid to drive, and that her fear has caused her to withdraw from her family and friends. They testified that before the accident, she never took a sick day. The added stress of her injuries forced her to take more time off from work than she used to. The Defense attempted to cross each of them, but quickly went on code. At one point, the Defense was yelling at the client’s daughter because of her testimony about her mother’s current condition. The Defense’s behavior disgusted the jury, causing several jurors to visibly shaking their heads in disapproval.

Closing:

During Closing, Andrew went back to his theme. He told the jury that, despite the Defendant’s decision to wait until trial to accept responsibility for liability, they still refused to make things right. Andrew placed his timeline on the screen, which showed the mechanism of injury to the jury. Andrew used his timeline to prove to the jury that his client suffered from the injuries she claimed. Andrew told the jury that if the Defense believes that she was hurt because of this wreck, then they must conclude that they are responsible for making the Plaintiff whole. It would simply be the right thing to do.

Andrew felt as though he armed the jury to be an advocate for his client. Andrew also argued that the jury was the conscience of the community. He talked about the price our clients pay to come to trial. He mentioned how the Defense’s late stipulation liability was a slap in the face for his client. Andrew re-addressed his safety rules and bumper sticker. He let the jury know that if these safety rules are important to their community, then they must enforce them with their verdict.

Verdict:

The jury returned with a verdict of $44,151.83. This was the first jury to award non-economic damages in this conservative venue in over a dozen trials. Furthermore, this was Andrew’s first civil jury trial. Trying this case with a non-Reptile© attorney certainly brought its challenges. The co-plaintiff’s attorney was so eager to focus the case on the client rather than the Defendant’s conduct. Andrew does not blame the co-plaintiff’s attorney, as he was the same way prior to his knowledge of the Reptile©. However, he would avoid a consolidated case with a non-Reptile© attorney in the future.  Andrew is glad for the lessons he learned during this trial. According to Andrew, “If the Reptile© can help me win a case for my client under these circumstances then it can do it for anyone.” Andrew encourages his fellow peers to embrace the challenge of trying cases. The Reptile© makes Andrew confident in the future success of his Plaintiff’s personal injury cases.

The blog will resume as usual next week, July 8th. The topic for next week is slated to be, “Judges Have Hearts Also (at least, some of them do)” by Don Keenan. See additional updates for this week under the “New Frontier” and “Listserv” pages of this site.

Hope all you woodpeckers have a fun & safe July 4th weekend!

By Don Keenan

ATTENTION: The Keenan Law Firm’s fellowship program will soon go into month 4. Our first fellow has already been in two trials. She has another 8 months to go. We are now ready to accept our second fellow. We have adjusted the fellowship to provide the fellow with two weeks a month to return to their practice rather than a solid year. If you have applied before we invite you to reapply. For an application or questions contact Wentrekin@keenanlawfirm.com.

Previously, you’ve heard from me in the blog, “Know when to hold them” (know when to fold them), but what happens when you know you’ve got to fold and the Black Hats don’t have any money on the table?

At the beginning of the Reptile^© evolution, I was determined to accept difficult cases out of my comfort zone. I did so because I didn’t want to get the reputation (as some lawyers have) that I’d only take slam dunk cases with certain plaintiff outcomes; secondly, I wanted to test the limits of Reptile^©.  Consequently I took a case out of state dealing with what I thought to be a preventable death in a teaching hospital. The surgery was elective and the deceased really didn’t have any preexisting conditions, plus the records weren’t clear about what happened.

As we went down the discovery road, we found that the woman’s surgery was done exclusively by a resident and the intensive care nurse was concerned because her drain fell out, and there was a notation on a previous surgery record that she had experienced respiratory distress. The IC nurse acted appropriately in trying to contact the resident, but after repeated calls only got a nurse; the nurse relayed instructions to send the woman to the floor although the IC nurse wanted to keep her and specifically wanted the resident neurosurgeon to see her.

Seven hours later, the woman died as the result of asphyxiation caused by a combination of incisional swelling and the development of a hematoma. From post-surgery until her death, no attending ever came to the bedside. So the discovery was going well, but it got even better when we located a hospital report stating the cause of death was inexperience and lack of training on the part of the residents and nurses. Further, the resident personnel and nurse files were riddled with some of the most devastating evaluations that I’ve ever seen in any personnel files in over 40 years. Shazam!, as Gomer Pyle would say.

We proceeded to trial against the backdrop of a perfect record with focus groups (based primarily on the internal report) admitting fault, and the devastating personnel records. Let me tell you the end of the story first, and then how we got there. Case was a two‑week trial, which resulted in a defense verdict in a little over two hours. The verdict was nine-three.

At the end of the first week, I had to tell the family that based on the court’s rulings I couldn’t see any way the verdict would be in favor of us. So let me overview some (but clearly not all) of the unbelievable rulings by the court:

1. The trial court ruled out any reference to the internal report admitting fault for the death. Don’t even begin to ask me why; it was a convoluted and nonsensical ruling, with all due respect to the judge.

2. The judge ruled inadmissible 99.9 percent of the mountain of negative reviews and comments in the personnel records on the two residents and four nurses.

3. In complete violation of the applicable state law, the judge ruled that a physician is incapable of giving standard of care testimony against nurses. Within the context of the case, this was devastating given the depth of our physician expert criticisms.

4. To give you a flavor of how the judge used his circular ruling: There was nearly a two hour gap where not even a resident saw the patient, and the resident on deposition stated that she instructed the nurse to contact her if the condition changed; clearly, the condition did change and the resident was not informed. The resident testimony about not being notified by the nurse was excluded because the judge believed it was a physician testifying about the standard of care by a nurse, even though the question was clearly factual.

5. There was some Reptile^© that got through: First, we were permitted to use safety rules until the third day, then the judge reversed himself and said no more safety rule references. The conscience of the community was in, foreseeability was not. The statistic was referenced at the beginning of the opening without objections.

6. The judge essentially prevented any form of system violation and directed us to try only the events post-surgery; thus, the exclusion of the internal report, the personnel records, and the lack of a written chain of command.

7. Over our objections, the defense was able to go into the post-event career events of the residents (that is, all the good stuff – they went on to other resident programs, private practices, etc.) but the evidence of misery that they created, subsequently killing our client, were not permitted to be admitted (namely, that the junior resident had gone off to Florida and was involved in the brain damage of a young child during pediatric neurosurgery). Florida has the administrative procedure that permits the defendant to admit fault, thereby being immune to any of the more catastrophic damages; nonetheless, the administrative panel awarded $10 million to the family (such that the fund didn’t have enough money for this, and there is now a bill pending in the Florida legislature to fund it). Judge ruled this out but it was a fact she was on the faculty of University of Miami.

In retrospect, I don’t believe we lost the case because the judge excluded the Reptile^©.  We lost the case because the judge simply did not apply the correct law of medical negligence.

Back to the title of this article…what to do with a judge like this?

Well, frankly, there’s nothing you can do in the moment that we didn’t try to do. We filed briefs, argued case law, common sense, and nothing worked. The train was roaring toward us and we couldn’t stop it or slow it down, so we did the only thing we could: Stand proudly and bravely in front of the train to meet certain death – but with the understanding this case would be reversed, and we will live to fight another day.

In all probability, the widower will probably not make it for the retrial but his heir, a very believable and nice daughter with her expanded family, will take the benefits.

Between the Boston judge and this judge, I’ve not had too much luck with judges…so I’m going to work hard to develop some better strategies on how to confront this. By the way, we got to talk to the jury after this case, and the jurors were outraged that we could not inform them of the internal report or the personnel records.

The new trial after reversal will prove differently.

BOTTOM LINE:  Sometimes you are the bug, and other days you are the windshield.

By: MICHAEL PETERSON, KEENAN LAW FIRM

ATTENTION: The Keenan Law Firms fellowship program will soon go into month 4. Our first fellow has already been in two trials. She has another 8 months to go. We are now ready to accept our second fellow. We have adjusted the fellowship to provide the fellow with two weeks a month to return to their practice rather than a solid year. If you have applied before we invite you to reapply. For an application or questions contact Wentrekin@keenanlawfirm.com.

Tara Milliff is a recent addition to Brian Crockett’s successful plaintiff practice in Houston, Texas. Tara became a member of the Texas Bar in 2010 and joined Brian’s firm in late 2014. Furthermore, she is recent addition to the Reptile^© community, as she has only been a part of the Reptile^© family for a little over a year; however, in that time she has been one of the most avid and tenacious students at the Keenan Ball College (KBC). Tara will be graduating from the KBC in October, and today we share with you her Reptile^© journey.

Tara will tell you that she knew nothing of the Reptile^© prior to graduating from law school. After joining Brian’s firm, she quickly found out he was a “Reptile^© guy,” who wanted to start a “Reptile^©-only firm.” He began with three associates, and sent them all to the “Welcome to the Revolution” seminars, and as many classes as they could attend.

“As an associate, you will never have someone invest in you like that,” Tara said.

The KBC stuns Tara every time she attends; she is amazed by the fact that she gets to be surrounded by lawyers with so much experience, who just so happen to be as green as she is when it comes to the Reptile^©. She describes the Reptile^© as “deceptively simple.”

“When you listen to Don speak, it sounds like common sense,” she said. “Sometimes it can be hard to shed the mindset of a lawyer and make things simple.”

However, what she likes most are the results she is seeing within her practice. To be more specific, the result of a slip and fall case this past year, where she and Brian received a verdict of $140,000 on a defense offer of $15,000. Tara is quick to tell you the Reptile^© is not “voodoo” for a bad case; rather, it takes a case with the proper case selection and transforms it into a goldmine.

Within the last year, Tara has noticed the shift of the Reptile^© trainings (from hosting seminars to hosting more KBC courses): “The seminars are the cliff notes version, or broad overview of the topic, from a Reptile^© perspective straight from the mouth of Don Keenan himself. The Colleges, on the other hand, are more technical. The KBC is a place where a handful of experienced and successful attorneys gather on the college campus to receive invaluable feedback on real cases. It is truly an interactive and emotional experience.”

Tara has attended courses including Rules and Case Selection, Openings and Order of Proof, Jury Selection, Focus Group, Damages, Mediation and Witness Prep. Tara has chosen the KBC Trial Course as the last course she will take before graduating from the KBC. Tara recommends that Reptile^© members attend all of the KBC Courses.

“For those who cannot afford to attend all of them or have a busy schedule, then I encourage you to take the Rules and Case Selection, Focus Group, and Voir Dire College,” she suggested. “These are the courses where you learn to sink or swim.”

The safety rules and case selection are critical to every case; without them, you will find it hard to focus your jury on the theme of your case. The Focus Group and Voir Dire courses are not just informative, but interactive; students present their case as they would at trial, in front of a live focus group. According to Tara, “These are people coming off the street who have no incentive to be kind to you. In that environment, you gain a personal understanding about yourself, your client, and your case.”

During this article interview with Tara, she could not think of one class that was not worth attending. “If the remaining courses I have to take are as good the ones I have completed, then they are worth attending,” she said. “You get out what you put in. I know it is time away from your practice and it can get overwhelming, but I think it is worth it. Everyone should try to graduate.”

Despite the camaraderie (not to mention the good food), Tara wanted her peers to know that you cannot arrive at the KBC cold turkey.

“You must take the reading assignments and prerequisites seriously,” she explained. “It is a lot of information. If you attend, and put in the effort, then the knowledge you gain will surely add value to your law practice and client.”

During the interview, Tara discussed how she had never done an opening before she attended the KBC Opening Course. In preparation for the course, she decided to watch David Ball’s Opening video, and began a rough draft of her opening before arriving at the college. When the date for the course came, she had a draft of her opening prepared and was ready for her peers’ to critique.

Tara’s efforts were on display when her instructor, Glenn McGovern, requested she deliver her opening in front of her peers. Prior to this, she had never delivered an opening, and she was incredibly nervous. Tara was disappointed after she delivered the opening – she did not believe she did a good job – but to her surprise, her instructor said he was expecting his students to give a strong effort, but he was not expecting them to be great; she exceeded his expectations! Furthermore, Glenn provided constructive criticism and reasons why he believed she did so well.

It was a validating experience for Tara, one that provided her with the ability to properly analyze an opening in her law practice. Tara has used her newfound skills to provide insight at her firm, which is just one example of how the KBC provides immediate, real-world implementation.

The comradery also does not stop with the KBC; Tara said it is important for students to find others in their geographic region who are Reptile^© attorneys that don’t mind serving as a sounding board. This helps to retain and refine the information learned at the KBC.

According to Tara, “I bother KBC Instructor Toby Cole all the time. He helps me analyze my work and create a vision for my case.” Another strong tool is reaching out to the state Reptile^© Listserv, as the members can be a great source for answers and ideas. In addition, practice makes perfect; like Michael Jordan, “Do not be afraid to fail, be afraid not to try.”

The Reptile^© is transformative. Tara has seen first-hand how the Reptile^© has transformed her firm’s policies. Her firm went from about 60-plus cases in litigation to around 15 cases, with case selection criteria guided by the KBC, giving them a new outlook on the cases they select. Each new case is determined from the lens of whether it is a Reptile^© case, which Tara said “is a night and day difference.”

These differences have also trickled over to her firm’s method of conducting witness prep. Tara recently attended the Witness Prep College course (prior to, she and the firm watched Don Keenan’s Witness Prep DVD; then spent 2-3 days the last week on Don Keenan’s method of witness prep). The deposition resulting therefrom was the most amazing deposition on liability that she has ever witnessed.

“The client was so empowered. It was an amazing thing to watch,” she said. “I was concerned the client would not be assertive – it had the potential to be a weak deposition. However, it was a success, not because we did anything great, but because she chose to be her own biggest advocate. I called the client again to tell her how amazing her deposition was. I tend to get protective over clients because they are broken in situations that could happen to anyone. My heart goes out to them. It so gratifying when there is a good outcome. I find that when you implement Don Keenan’s Method of Witness Prep, those good outcomes tend to come about more often.”

Tara participated in her first trial this spring, a non-subscriber slip and fall case. The defense denied that the fall ever happened. Brian and Tara decided to try the lie. Brian called the defendant to testify first and, instead of being aggressive, they trusted the jury. The defendant agreed with all of their safety rules; however, he refused to admit to the fall. Too bad their Reptile^© was not harmonizing – each of the defendant’s former co-workers testified to the fall! The jury could not believe the defendant would lie to their faces. The defense failed to make an offer prior to trial and the jury chose to punish the liar by providing the plaintiff with a $140,000 verdict (Tara and Brian’s special damages were $10,000).

The KBC is transforming lawyers and law firms with every course. The instructors are hands-on and accessible, and the students are open minded and eager to learn. As Tara expressed, the KBC is certainly challenging; however, its ability to transform witnesses, cases, lawyers, and law firms is undeniable. If you have not yet attended you are missing a gem. For those that have attended, we miss you and look forward to having you back. Learn more or register here: http://keenanballcollege.com/applications/, and remember that sharing and collaboration is the key to advancing the Reptile^©.

Bottom Line: Don Keenan shares so much information that it inspires the KBC faculty to want to do the same; they not only give of their time to teach the courses, but they give examples from their own practices to make sure that the concepts are understood. It is incredibly telling that faculty keeps attending courses as students, and updating and honing their craft as well.

Please find a list of instructors that have Tara’s experience both educational and entertaining thus far:

• Rules and Case Selection – Ken Altman
• Focus Groups – Steve Ballin
• Voir Dire (Jury selection) – Toby Cole
• Openings & Order of Proof – Glenn McGovern
• Damages – Andrew Finkelstein
• Mediation – Steve Ballin
• Witness Prep – Joe Lopez

By Don Keenan

My last blog chronicled the first no-recovery jury trial that I’ve suffered since 1989, after two-and-a-half weeks in Kentucky on a case that will surely be reversed. I’ve had two defense verdicts since 1989, but had previously settled with the major defendant prior to, or during, trial. After this recent Kentucky loss, five days later we started a trial in Seattle, Wash., on a very difficult bike crash.

Before I take this dog too far down the road, let me credit the folks who worked hard on the case: Larry Kahn (the Seattle lawyer who had worked the case for nearly three years), Andrew Gould (from my office, who worked the liability side of the case), Keenen Law Firm fellow Elizabeth Larrick (who worked alongside me on the damage side of the case), and finally, the team was rounded out by Kim McClay (from Larry’s office who did most of the motion work).

The case concluded the middle of the second week for $7.25 million for reasons I will document below.

Difficulties in the facts of the case included the following:

1. It was a bike crash with no eyewitnesses. This was compounded by the plaintiff stating she recalled hitting a “bump or something” on the narrow street, right after an oncoming car that was hugging the center line moved to provide passage of our client who waved with her left hand and began braking with her right hand.

2. After she hit the “bump or something” she had no memory of how she traveled over 40 feet and struck a mailbox on the side of the road paralyzing her completely from the waist down and taking away about half of the mobility of her upper extremity. She can eat and drink without assistance.

3. A suit was filed against the municipality for creating the “bump” in the road. There had been a number of prior claims resulting from this bump; however, the municipality destroyed the claims files. In an earlier bike crash, a different court found (as a matter of law) willful destruction of evidence (the claims files) and indicated that a spoliation charge would be given to the jury. Unfortunately, our judge refused to admit the evidence of the destruction of the claims file and refused a spoliation charge. We attempted to revisit that ruling many times during the two weeks.

4. While we were precluded from getting the destroyed claims file into evidence, the defense was able to tell the jury repeatedly that the municipality had 80 similar bump incidents with people in cars, on motorcycles and bicycles, who had “safely navigated” the bump.

5. As many of you know, the code for bicyclist/bicycle is, “two-wheel deathtrap with dangerous rider.” We were able to take our plaintiff off-code by establishing that she was born and raised in Germany, where they actually issue bike licenses preceded by a bike safety course. Further, she had her bicycle since she was a teen (now age 36), was wearing a helmet and had all appropriate safety gear. However, the facts indicated that she lived right around the corner from this “bump” and had instructed her three children to never ride over it on a bike. The most damaging was the road itself, which was a steep incline in the direction of the plaintiff’s path. One of our experts foolishly did a helmet mounted video cam, traveling at 25 miles per hour down the road, and focus groups switched the code back to “dangerous death trap” in light of that. We had an interesting voir dire that I conducted, which centered (in part) on the bicycle code. In the future, I will dedicate a separate blog on the code and the successful rat killing questions we came up with.

6. Another devastating court ruling was the admissibility of the medical bills, totaling about $1.4 million (in and of itself, that wasn’t that bad). What was toxic was the fact the client used a funding service, which put the plaintiff and family on-code as exaggerators at best and liars at worst. You see, the funding company chose the healthcare providers, negotiated the rates and then proceeded to pay the providers’ bills. On many occasions, the client had requested a copy of the actual bills to see the costs of service (not just what the provider was charging). Prior to trial, she was never given any accounting. Elizabeth Larrick was given the task of determining what the true medical bills were, so we could use it as evidence during trial. Her efforts were stonewalled by the funding company; they refused to give her access to the care providers and with the limited information she had available, Elizabeth discovered massive overbilling. Here is just a sample of what she found (and the methods used to confirm it as evidence):

$425.00 + $265.00 per hour for RN care visits, making average RN home visit $815.00 (for approximately 2-3 hours); company accepted 40 percent of that rate (funding company’s invoices and various depositions confirmed this information)

$425.00 per hour for RN meal prep (deposition)

$85.00 for CNA care (funding company’s invoices and deposition confirmed the company only paid the CNA $13-14.50/hour)

$30,000.00+ in consulting fees, travel and meal expenses to the client’s account (funding company’s invoices)

$8,800.00 flat rate per week for home health care (medical provider deposition; but the company refused to provide itemized breakdown of the charges for each care giver and/or each visit) with the weekly rate including a mix of RN and CNA care ranging from 30-100 hours a week, but patient was charged for 24/7 care

$19,000.00+ for three months of RN case manager; but RN case manager testified under oath her hourly charge is $110.00, and she only spent 3-4 hours a month on client’s case (deposition)

With this evidence being admissible, we focus grouped and discovered that while the funding company and medical providers were clearly culpable, so was the family (at least, some believed) to the point that some thought the family participated in the overbilling in order to present a bigger picture of damages at trial.

7. Larry did a good job on opening (by the time of trial we had gone through 27 revisions and 19 focus groups). As always, to make sure the opening is bullet proof, he read the opening (the defense lawyer used an iPad teleprompter). We used two statistics at the beginning. Both came in without objection; however, the rules were excluded because they were not contained in the expert disclosures or documented in the discovery depositions.

8. Finally, there was the fact that the client had no memory of what happened after she hit the bump. How did she travel 40 feet down the hill and strike the mailbox? Elizabeth (who is also Dean of the Witness Prep for the KBC) will soon write a blog on how that gap of memory should have been filled. In the meantime, with the gap clearly in the existing trial testimony, the defense was able to build most of their case around saying it was impossible for her to hit the bump. Instead, they theorized that after she waved to the oncoming car and began braking, she lost control of the bicycle – well after she passed the bump – which caused her to hit the mailbox. The defense had a ton of experts establish this point of view, including a bicyclist expert, a biomechanical engineer, a human factors expert, and others. The client’s lack of memory provided the runway for the defense’s defense.

THE GOOD STUFF

We were able to employ the Reptile^© stool technique for this case, producing strong evidence that the person who designed the bump was unqualified. Our first witness was a very experienced road construction expert, who told the jury that only a civil engineer could design these bumps and their written approval was required – which did not occur in the case.

Additionally, we were able to establish some hypocrisy in that the investigating police officers referred to it as a “speed bump” in all their reports. This was important, because the rules of the road and road construction require all speed bumps to be painted and have a warning sign.

Both were lacking on this bump and any of the other 66 bumps. So we got some spreading the tentacles of danger. However, the fact that the plaintiff lived less than 75 yards from the bump (traveling this road on bicycle and car hundreds of times) put a dent in the painted and signed evidence, because focus groups clearly believed she knew the bump existed and where it was located.

Another plus occurred when Andrew successfully excluded the video reenactment done by our expert (but we were certain that the defense would get it in during their case). So by the end of the first week, we ended no better than a 50/50. When we settled in the middle of the second week, we had increased the odds with Andrew effectively arguing that the video reconstruction done by our expert was excluded.

On the last day, I found out that a very pleasant, gray haired lawyer from Chicago was present in the courtroom for one reason, and one reason only: To see how the Reptile^© unfolded so he could (he thought) become better armed for the many cases that insurance company will see from you. I’m convinced that while he spent two weeks in the courtroom with us, he really doesn’t know how the Reptile^© was imbedded or deployed for the case.

Note: You’re probably wondering why I’m referring to the opposition as “defense lawyers” in this case. Recall my blog, “Black Hats vs. Defense Lawyers,” where I say not all defense lawyers are Black Hats (see the Keenan Edge, 1^st edition, pg. 115); in the Seattle case we experienced true defense lawyers, unlike those in Kentucky.     

I have always been upfront and candid with all of you and I’ll continue to do so by saying that while the $7.25 million settlement was good, it was not what I wanted. But I can sleep at night knowing our client and her family did not leave the courtroom empty handed. I’ve reached the point in my career where I can limit my cases to slam dunk liability and huge damages. I don’t need to try cases, as my reputation is clearly intact. I’ve said many times that in order for me to be a legitimate teacher and a real mentor to all of you woodpeckers, I need to continue trying cases (and, from time to time, accepting very difficult cases). I find that I learn more from cases like this than any of the slam dunks, so in the coming months at the Keenan Ball College, I will be updating the faculty with the new things I’ve learned. You need to know those lessons.

After two back-to-back trials, I must admit I am tired and weary. It takes a lot for this Marine to admit that, but I live to fight another day and have four trials coming up before the end of the year. Please believe that I’m a better lawyer because of these two trials, and will be fully energized for the next one in September – as well as the others.

I’ll end this where I began, and commend Larry Kahn for his passion, for the work that Andrew Gould brought to this trial, for our fellow Elizabeth Larrick, and for all the motion work done by Kim McClay. Stay tuned for additional blogs with further explanation of what was learned during this case.

Bottom Line: The agony of defeat and its pain is equaled by nothing other but the thrill and sweet taste of victory. It is this that makes us live to fight another day.

By Michael Peterson

ATTENTION: The Keenan Law Firms fellowship program will soon go into month 4. Our first fellow has already been in two trials. She has another 8 months to go. We are now ready to accept our second fellow. We have adjusted the fellowship to provide the fellow with two weeks a month to return to their practice rather than a solid year.

If you have applied before we invite you to reapply. For an application or questions contact Wentrekin@keenanlawfirm.com.

Note from Papa Don: Glenn is a two-time Reptile Superstar and a faculty member at the Keenan Ball College. Here’s his latest Superstar case:

This month’s Reptile^© Superstar is Glenn C. McGovern. With more than 38 years of law experience, Glenn currently practices at the Law Office of Glenn C. McGovern in Metairie, La. His firm focuses on helping victims of motorcycle accidents, civil rights violations, auto collisions, police brutality and product defects.

FACTS OF THE CASE:

Glenn’s autopsy this month focuses on a defective Suzuki Hayabusa. The plaintiff’s husband was an offshore contractor foreman working on an oil platform. During one of his “off” shifts, after test riding a Suzuki Hayabusa, he told his wife about his love of the bike.

The husband was planning to go home for Father’s Day. In hopes of surprising him, the plaintiff found a used Suzuki Hayabusa at a nearby dealership and took her brother (a seasoned rider) with her to purchase the motorcycle. The dealer charged the plaintiff $882.00, which included a $375.00 standard safety check. The rest of the fee went to shipping and handling for the bike, which the dealership delivered via trailer to the plaintiff’s house. The plaintiff kept the bike in her garage. The plaintiff’s brother told the decedent he did not like the way the bike acted.

Before Father’s Day, the plaintiff’s brother took the bike out for another test drive, but nearly fell off  – it had an overly-sensitive throttle that caused him to nearly lose control when the front tire lifted off the ground during the low, initial throttle settings. The plaintiff’s husband returned home in time for Father’s Day and the plaintiff presented him with the motorcycle gift.

Anxious to ride the bike, he got on it and headed out to drive a short distance to open his subdivision’s gate for a friend. He chose to ride to the gate with no helmet. As he grabbed the throttle, he did not realize it was overly sensitive; the motorcycle abruptly sped towards the front gate of his subdivision, and hi-sided the decedent. The motorcycle traveled about 290 feet before crashing into the gate. The impact caused the bike to stand up on its front end. Tapping the rear brake to bring the front wheel down was futile – the rear brake pads were completely worn down to the metal backing plates. The force of the impact threw the decedent 18 feet onto to the pavement under the gate.

The plaintiff’s husband died of brain injuries from an acute hematoma. He left behind his wife, the plaintiff, and their five children. At the time, he was 35 years old and earning $85,000 a year. He had three years of riding experience before the collision and was familiar with Suzuki, having previously ridden a Suzuki GTX 1000 for years – a make that is even faster than the Hayabusa.

Glenn McGovern sued the bike retailer for selling the plaintiff a defective motorcycle with no rear brake pad material, and for disconnecting the safety speed timing retardation system (built into the Hayabusa model to make the motorcycle safer and more rider-friendly). The defense went on-code, lied, and was caught lying during trial.

The defense argued the dealership checked the vehicle before it left the store (the paperwork showed otherwise). In their deposition, the dealer stated they inspect all brakes on their bikes before placing them on the showroom floor. However, Glenn discovered the dealership had no familiarity with metric bikes (like Suzukis), as they only primarily sold Harleys – only occasionally did another type of bike come through their showroom. Furthermore, Glenn learned the motorcycle in question had no rear brake pads. The padding material on the break pads were so worn down that the breaks were scraping against the brakes’ disc rotor.

During one of Glenn’s six focus groups, the participants informed him that they wanted to hold the worn brake pads in their hands. Glenn did this during trial. The defendant’s expert testified 90 percent of the brake pad material was still in place on the brake pads. The jury knew this was a lie when they held the brake pads in their hands.

Furthermore, the bike had an Ivan’s Timing Retarder Eliminator (TRE) plug-in resister installed in the wiring harness of the Electronic Fuel Injection Control Computer Unit. The TRE had the affect of disconnecting the timing retarding safety system, which greatly increased the throttle’s response. This made the bike overly sensitive to changes in speed, with a resulting that would surprise any user. In the TRE instructions, it states the TRE was “FOR RACE USE ONLY.” The motorcycle the plaintiff’s husband got on had the capability of reaching 183 mph, going from 0-90 mph in the first gear. The TRE has the ability to disconnect all safety systems; however, the dealership claimed the TRE made “no difference” to the performance of the motorcycle.

Glenn studied everything he could get his hands on: Owner’s manuals and service manuals – he even dyno-tested an exemplar Hayabusa at A-1 Racing in Austin, Tex., suiting up to ride the exemplar Hayabusa both with and without the TRE installed. With the TRE, the bike was 500 pounds with 170 horsepower and 110 ft. lbs. of torque. It was an unpredictable, scary bike. Without the TRE, the Hayabusa was a big docile bike; a lot slower than the Aprilia Tuono sport bike Glenn raced locally.

The Texas Speedway was rented out for an exemplar Hayabusa to be run and videotaped by James Evans, a motorcycle accident reconstructionist, who conducted testing of the bike on the track and on the dyno. One short clip of video was focus-group-tested and used at trial, showing the bike accelerating with and without the TRE for 288 feet of driving distance. Because of his focus groups, Glenn knew that even after (even any undecided) jurors saw how fast the bike was, they would conclude on their own that the dealer should have know how fast this motorcycle could go, and that it needed good brake pads – otherwise certain injury and death could occur. The defense thought Glenn was crazy for showing this video clip, but that’s because the defense did not know what was happening in the jurors’ minds.

The defense wanted to place the plaintiff’s husband on-code, as a reckless motorcyclist. They found evidence that the decedent was a member of a bike club, so they took photos of his club members’ drag racing (at sanctioned drag strips) and – although the decedent/husband had never raced with the club – they wanted to paint the picture that he did. Glenn filed a motion in limine to prevent the defense from entering any of the club members’ jackets and race activities into evidence. He also filed a motion in limine, which was granted, that prohibited the defense from using the terms “crotch rocket,” “donor cycle” or “rocket bike.” Glenn knew these words would prejudice the jury at trial and be fatal to winning the case.

On the Friday before trial, the defendant despicably filed a motion for affiliation, in regards to the decedent’s five children. The motion claimed two of them were not his children, because he did not sign the birth certificates for the twins (one of whom was named a junior, after the decedent/husband). The motion claimed the children did not belong to the husband, as he did not sign all of the birth certificates. Glenn focus grouped the affiliation issues the Friday night before trial, where he learned from the participants that the defense would be hated for bringing that evidence into trial. The focus group was like a hornet’s nest, attacking the pseudo focus group defense attorney over this issue. That issue would not be a problem at trial.  Glenn was eager to try the case that next Monday.

Pre-Trial Reptile^©:

Glenn credits the KBC and Don Keenan and David Ball for his training and his decision to organize six separate focus groups for this case. Glenn found the focus groups relaxed him and allowed him the opportunity to practice his jury selection, opening statement, and he could test out all his exhibits multiple times (some exhibits worked, most were tweaked; some didn’t work and were eliminated).

Through the focus groups’ feedback, Glenn could boil the case down. He determined there were two key issues: The fact that the husband was not wearing a helmet when he drove the motorcycle, nor a motorcycle endorsement.

The first focus group initially rated the case as non-winnable. But the participants began to change their opinion as Glenn introduced facts, such as the condition of the brakes, and the dealership’s promise – and failure – to conduct a safety check. All the jurors were not new car buyers; they were of moderate means, buying used vehicles with required “as is” agreements.  This was discussed in voir dire.

The focus group stressed the dealership’s failure to notify and repair the brakes as the most determining factor, and the earliest time in which the dealership could have prevented this incident. The defense used the “as is” agreement as its sword. It got stabbed with that sword. Glenn called the dealer as his first witness who said he would sell the bike again with worn brakes even though they might fail at the next ride or the next ride after that. The dealer was asked if he would sell a bike like this again. He said, “Yes.” He was asked why he would do that when the buyer might get injured, to which he responded was because he had an “as is” agreement. The jury was visibly irate.

The focus group gave Glenn great insight on what the perfect jury would be for this case. Their constant reference to the dealership’s lack of brake inspection led Glenn to draft a jury instruction solely geared toward that issue. The focus group participants did not change their minds when Glenn brought up the fact that she signed that waiver. They argued that since she paid the dealership to do an inspection, they owed her an inspection and thus betrayed her when they failed to do one.

The dealer lied and testified the plaintiff’s husband went with her to look at the motorcycle at one point. In closing, Glenn pointed out this lie to the jury and quoted the Bible, “The Lord detested liars and love those over whose lips roll the truth.” Glenn told the jury that when they went back for deliberations, they should ask for and check the payroll records the defendants put in evidence – the records showed the husband/decedent was 50 miles offshore working during the two weeks before he came home and was killed by the defective Hayabusa motorcycle. The jury did so. They also asked for the sales records to check the odometer readings as Glenn suggested.

USING THE REPTILE DURING WITNESS PREP

Witness prep was crucial in this case. Glenn watched Don Keenan’s Witness Preparation DVD and implemented many of the techniques and strategies in this case.

The plaintiff was left alone to raise their five kids, plus two foster children who were not her own. The death of her husband forced her to “wear a stoic mask in front of the children” and stay strong throughout the day in order to protect and care for her family. Glenn knew it would be nearly impossible to understand where his client was coming without attempting to “walk a day in her moccasins” (as Keenan always says). Glenn spent a lot of time with the plaintiff, attending church with her and staying for dinner at home with the children. He discovered she never threw her husband’s clothes out, even years later, when a small fired occurred and they got wet. She could not bear to throw any of his things away.

Guilt was discussed in depth and eliminated. Glenn learned the couple was childhood sweethearts, married when she was 17 years old. Glenn heard Keenan tell stories about how he would spend time at his clients’ homes, in their own environment, to bond with them and truly understand the impact of the case from their point of view.

In closing, Glenn’s speech was extremely emotional for the judge and jury with what he learned during these visits at the plaintiff’s home. Additionally, he could better prepare the widow by feeling what she felt and had to deal with. She talked about the fact that one of her children chose to quit football because his father, the decedent, had been the coach. The more Glenn made himself available, the more the plaintiff opened up to him with stories about how the tragedy had transformed her family. The defense filed two motions for summary judgment that they lost. Then they offered $500,000 (the Friday before trial). The plaintiff rejected the offer.

VOIR DIRE

Glenn began jury selection by asking passion questions. He discussed the burden of proof and the jury’s perception of motorcyclists.  Glenn discovered one of the jurors (who later became foreperson for the case) had recently lost her child. Glenn was glad to have someone on the jury who understood the emotions and devastating lost that his client was experiencing.

During voir dire, Glenn asked the jury whether it was their expectation that a dealership should be free of liability for defects once a customer signs an agreement to purchase a used car. Glenn could see the light bulbs going off in the jury’s heads as they began to debate the issue amongst themselves. Glenn followed up the question by eliminating the rats with his Which Way do you Lean (WWDYL) questions.

OPENING

 During opening, Glenn told the story from defendant’s perspective and focused most of his attention on the brake inspection. Glenn’s focus groups taught him that Bubba did not really care about his motorcyclist; rather, they did care about a used vehicle dealership that would sell their spouse/child/friend a defective vehicle, and then attempt to hide behind the “as is” agreement.

Glenn stated plainly that this case was not about the motorcyclist. This case was about betrayal and the promises that the dealership made, and purposefully chose not to fulfill. He paid special attention to the use of the “as is” waiver as a way for the dealership to absolve its responsibility to inspect/repair the brakes before they hit the showroom floor. Glenn told the jury the defense and claim adjuster (whom he pointed out in the courtroom) would have a party in the parking lot if they granted less than $3 million.

SAFETY RULES

Glenn had three safety rules in the case:

• Safety Rule #1: A motorcycle dealer must always inspect the motorcycles it sells to the public for any defects that can injure or kill.
• Safety Rule #2: A motorcycle dealer that charges for an inspection of its motorcycle must inspect, repair and disclose any defects before selling the motorcycle to avoid injury or death.
• Safety Rule # 3: A motorcycle dealer who voluntarily does an inspection of a motorcycle it sells it to the public must inspect, repair and disclose any defects before selling the motorcycle to avoid injury or death.

He brought up eight witnesses to testify on the first day. The defense thought he would call the widow and children first, so they were caught off guard when the dealer was called first. The first person to testify was the owner of Harley Davidson dealership, followed by the salesman who sold the wife the motorcycle. Third was the plaintiff’s brother, who had test driven the bike, followed by the experts and B&A witnesses. The widow and her oldest child were called last. The Defense did not call any mechanics to testify, and Glenn made a point to ask why.

When asked whether the dealership makes a promise to each customer that they will road-test all of their vehicles before placing them on the showroom floor, the salesmen agreed to Glenn’s rules. The dealership owner also agreed.

Glenn had the salesmen at the dealership testify in his case-in-chief, to expose the lies and betrayal of the dealership. Glenn asked whether they had ever promised to conduct a standard safety check before releasing their vehicles to customers. The salesman agreed they had, so Glenn asked if that safety check included the brake pads. The salesman said the dealership had not checked anything off on the safety check form, and Glenn whether he knew that 90 percent of the brake pad material was missing when he sold the bike to the plaintiff. The salesman said he was aware, but didn’t care because the plaintiff signed the “as is” waiver. He further testified that the brakes would work even in bad conditions. Glenn asked him to explain why the odometer reading hadn’t changed at all from the time the bike was purchased and then delivered, if it had in fact received a safety check. The salesman lied and said it had been ridden 45 miles.

Glenn introduced evidence showing the bike had the same mileage reading from purchase to delivery to the plaintiff. On redirect, the defense had the salesman testify that he road-tested the bike on the interstate, where he was able to push the bike to top speeds. During the salesman’s deposition, he testified he had only taken the bike around the block. Glenn used the salesman’s deposition to impeach his trial testimony. The jury was disgusted; not only had the defense made multiple promises to the plaintiff and broken than all, they had the audacity to come into the courtroom and lie to the jurors about it!

Glenn knew he had a strong Reptile^© trigger in “betrayal;” however, Glenn still needed to address the negative attribution stemming from decedent’s decision to ride with no helmet. The decedent’s neurosurgeon testified that motorcycle helmets do not protect against brain damage, showing the jury CAT scans of his client’s brain on his laptop. The presentation was very interactive and informative. The neurosurgeon was off-code, and the jury loved it.

The defense expert testified that a helmet would have been effective to prevent brain injury in this case. Glenn brought in a National Highway Safety Traffic Administration study from 2009 that stated helmets are 27 percent effective at preventing brain damage. While the expert was not aware of the statistic, he was able to testify that Glenn’s information came from a credible source. Moreover, he testified that helmets did not protect against brain damage from rotational acceleration, and 60 percent of all motorcycle fatalities are a result of brain damage, according to a European COST 327 study.

According to Glenn, this case could not have been won without the focus groups, opening and closing templates from David Ball’s teaching, the WWDYL voir dire questions, and his Reptile^© seminar training. Additionally, there were a lot of terms in this case Glenn knew the jury would not understand (e.g., TRE), and Glenn noticed the jurors were initially skeptical that the TRE contributed to the wreck. However, once they saw how the TRE worked, they determined that the plaintiff’s husband needed good brakes to drive the vehicle safely. Glenn simply conveyed how the decedent would have easily handled the effect the TRE system had on the motorcycle with proper brake pads – ones that hadn’t been worn down to the metal backing plates.

CLOSING

During closing, Glenn was laser beam focused on the betrayal by the defendant. He went through each promise that the dealership made to the plaintiff, and used the salesman’s testimony to show how all of them were lies. He reminded the jury that the defense was aware of its negligence, and simply believed their waiver gave them a free pass. The defense’s affiliation claims specifically stood out to the judge as a cruel and heartless tactic by the defense.

The judge actually became emotional during the plaintiff’s direct examination, as she explained her new role as not only mother, but as pillar of strength and hope for her children. Glenn used this to his advantage by reminding the jury of the on-code behavior by the defense.

As he drew to the conclusion of his closing, he knew it was time to address the money. He knew Bubba would have a hard time quantifying the money and he wanted to simplify the case as much as possible; he asked the jury to close their eyes and imagine seeing the decedent’s son at his last football game of the season…imagine that the decedent’s son had just run 90 yards to score a touchdown and win the game…imagine this boy running over to his dad, who picks him and says, “That’s my boy!” Glenn told the jury to open their eyes, and see that that boy’s father is no longer here. He reminded them that another Father’s Day was coming up and, again, he wouldn’t be there. Glenn simply asked the jury, “What is that worth?”

THE VERDICT

The jury returned a verdict of $2.83 million. Unfortunately, the jury hit his client with 50 percent comparative fault for the husband not wearing a helmet, but Glenn was not surprised at this result (his focus groups estimated comparative fault at about 40 percent). Glenn’s client ultimately received a verdict of $1.7 million, but mostly, she simply wanted closure. She wanted justice for the dealership’s betrayal, and security to support her family alone.

Glenn fully embraced the Reptile^© in every facet of this case. From focus groups to witness prep, jury selection to safety rules, and the case theme, Glenn was determined to remain off-code and create opportunities to trigger the jury’s Reptile^©. His focus, creativity, and use of the Reptile^© truly powered this case forward. Glenn also acknowledges the help and faith of fellow plaintiff attorney, John Redman, and his firm’s attorneys and staff that helped with the many motions prior to trial.

By Don Keenan

ATTENTION: The Keenan Law Firms fellowship program will soon go into month 4. Our first fellow has already been in two trials. She has another 8 months to go. We are now ready to accept our second fellow. We have adjusted the fellowship to provide the fellow with two weeks a month to return to their practice rather than a solid year. If you have applied before we invite you to reapply. For an application or questions contact Wentrekin@keenanlawfirm.com.

Many of you probably don’t know this, but the Reptile^© was the origin of our wholesale abandonment of the phrase “trial lawyer.” The marketing patriarch of the Reptile^© technique is, of course, Frenchman Clotaire Rapaille. Many of you may also not realize it, but he ventures into areas other than products.

Several trial lawyers from South Florida approached Rapaille to determine if there is anything that can be done about our perceived poor reputation. The story goes that Rapaille quoted a million dollar fee but the lawyers came up with $800,000 and he took it.

HISTORY OF FLORIDA AND LAWYER PR

Permit me to deviate for a minute about the history of my now-state-of-residence, Florida, in the area of lawyer perception among Bubba and Bubbette. In the mid-to-late 1980s, the State Bar of Florida wanted to do something about the perceived poor image of lawyers in general (not just trial lawyers). They took an attitudinal survey to measure the public’s negativity with lawyers, as a benchmark to compare after their advertising campaign.

The State Bar threw a ton of money into beautiful television advertisements, trying to cast the lawyer in the best possible light to the general public. One I remember well was an elderly, grandfather type who was taking very short steps on his way to the front porch, where he took a spot on the swing next to a little girl and the voiceover said something like, “These are the people who take care of justice and take care of little girls as well.” The sun indicated it was obviously morning and the water sprinkler had just come on the lawn. I give you all these details because those ads were dubbed the “Massengill lawyer douche ads,” because at the time, there was actually a Massengill douche ad that had a young woman walking through a similar front lawn with the sprinkler system on.

While the ads were beautiful and took up tons of money, when the Florida lawyers went to do the attitudinal survey after the six-week advertising run, it turns out negativity against lawyers had only gone up even more.

ACTIONS SPEAK LOUDER THAN WORDS

Bubba ain’t stupid. He saw it as a direct manipulation and pandering, in an attempt to improve our image; equivalent to when Nixon said, “I want to assure the public the President is not a crook.” Now, after Rapaille spent the $800,000 on various focus groups, he made a startling discovery:

“Trial lawyers have a negative opinion amongst Bubbas.”

My God, this was truly earth shattering – a shazam moment! “Oh my,” said lawyers everywhere, “What are we going to do?” To which Rapaille said, change your name and the world will be good.

NAME CHANGE WAS HYPOCRISY

The Florida Trial Lawyers had long been one of the truly great trial associations in the country. They neutered themselves by changing the organization’s name to the Florida Association of Justice. Thereafter the domino effect of name change bounced to the West Coast, where the mighty California Trial Lawyers Association overnight became Consumer Advocates. Having nailed down Florida and California the die was cast, and the American Trial Lawyers pulled a sheet over its head and instantly became whatever they’re called now (I always forget…something about justice).

Meanwhile, Rapaille was laughing to himself all the way to the bank, knowing full well that the imprint of “trial lawyer” would never go away. That is, any media that sourced the new name would only put an “A.K.A.” afterwards, acknowledging no matter what that we were “trial lawyers.” So whether we intended it or not, we became hypocrites (at best); that is, saying one thing and being another – or liars, at worst.

Guess what? We only made things worse. What has always been strange is that the answer was right under our noses, via our evil opposition’s genius Frank Luntz (author of Words that Work, 2007), at the very time the trial lawyer name transition was occurring around the country. I say we should have listened to him because Frank didn’t have a problem with “trial lawyer.” What does he say in the book?

“It is difficult to distrust a trial lawyer in part, because we see them portrayed so favorably on television and in the movies.” He went on to say that when you think of trial lawyers, Bubba thinks of Abraham Lincoln, Clarence Darrow, etc. Y’all, we need to be like Abraham Lincoln and Clarence Darrow.

However, Luntz does advise not to use “trial lawyer;” rather, he and his team of experts suggest you use “personal injury lawyer.”  (He then goes on to say that people don’t really have a bad connotation about personal injury lawyers so “if you want to get an additional level of intensity, talk about ‘predatory personal injury lawyers’”).

There it is my fellow woodpeckers. Our own worst adversary clearly said it – at the time we were abandoning the word “trial lawyer,” we didn’t need to abandon it at all, we needed to be proud of being a trial lawyer.

I believe that with the advent of the Reptile^© (it creating an environment of truth, candor and authenticity), it is now time to destroy the words that never defined us: Association of Justice or Consumer Justice Advocates. We have always been trial lawyers and we should always be proud of that.

At the end of all my trials, in closing argument (at a time when I’m convinced I’m completely off-code) I always tell the jury that I’m proud to be a trial lawyer; I’m proud of the sacrifices that my ancestors made coming to America, living a life of hardship in order to give me the opportunity to be a trial lawyer – so you bet I’m proud to be a trial lawyer and I will challenge any lawyer that says they are more thankful or proud than I am.

BOTTOM LINE:  Reclaim the phrase “trial lawyer” and be proud of it.

By Michael Peterson

All of us have taken video deposition of a witness with the defense. Afterwards, we have someone gather and edit our clips so we can present them to focus groups. During our focus groups, we find these clips rivet Bubba. And every answer they provide ends up connecting perfectly with our theory of the case.

At this point, we are ecstatic. We have received confirmation from Bubba, and are instantly convinced our case is bulletproof.

Amidst all of this celebration, we are left with the question of whether it is even worth presenting this defense witness live at trial, versus simply showing their deposition video. If you have considered this question before, you are not alone. As a matter of fact, this very topic was the source of intense debate amongst the privileged Voir Dire Keenan Ball College (KBC) graduates on the Voir Dire KBC Listserv. During the discussion, our Reptile^© members focused on the pros and cons of live versus video, considering such questions as:

1. Does video testimony take away from the emotional impact of the testimony?
2. Why should we question them live if their video deposition is perfect?
3. Do video clips place you on code?
4. What affect, if any, does it have on your verdict?

This week’s article aims to share some of the Listserv insights into the matter, and to provide some tips everyone should consider when it comes time to making this decision.

THE CONS

Most trial lawyers fall onto this side of the ledger. We prefer the defense witnesses to be front and center at trial. We are excited to discover whether they will truly commit to the irresponsible and illogical statements they made during deposition; or rather, choose to renege at trial. We live for those moments when their lie or repentance appears to literally shift the level of tension in the courtroom. We watch as Bubba connects with that tension and we cannot imagine a trial where, in that moment, Bubba is denied the opportunity to stare into the eyes of the witness.

Ryan Skiver, Moderator of the Arizona Reptile^© Listserv and member of the KBC Voir Dire Listserv has touched on this very issue. Here are his thoughts on the differences between Bubba’s interactions with live witness testimony versus video clips:

“I know videos can literally put jurors to sleep, especially after lunch. I was forced to play a lot of video at my last trial and I will never do it again. Would you prefer to watch one of Don’s videos or see him live? Would you prefer to watch your favorite band on YouTube or live? It is not as exciting…and you have a lot of video there.

“When the jury watches trials on TV and in movies, are the witnesses in the courtroom or on video? Showing someone is lying in person is much more exciting than seeing it on film.”

Earlier in this article, I discussed the exuberance we experience after showing our deposition clips to our focus groups. However, the interactions we experience in our focus groups may be much different from our experiences at trial. During a focus group session, we can probe Bubba with questions; we can view facial expressions, ask follow up questions to ensure that Bubba understands what we are trying to convey, etc. However, at trial, we cannot check-in on the jury. All we have is a verdict, as a response from the jury about whether they loved, hated, or were indifferent to the video clips we showed. Simply put, sometimes the message we want to convey gets lost in the video.

Let us heed a warning from Georgia Reptile^© trial lawyer, Jack Shrader:

“Years ago I tried a civil rights case and used several video depositions. Death in the County jail, 6-person jury in federal court and I turned down a 7-figure settlement while the jury was out; jury came back with a defense verdict. Ouch. Fortunately, my Federal Judge granted a new trial on the ‘weight of the evidence’ and the case was favorably resolved before I had to re-try it. While you can’t make general finding from specific cases I personally will not use heavy video depositions in trial again.”

Listserv members on the “con” side were convinced that the emotional connection the jury has with the witness tends to get lost in the video. When a witness lies or gets angry or flustered on the stand, that emotion fills the room in a live setting, thus becoming even more real to the jury. Although a video may depict these very same emotions, the connection with jury is simply not that same. Ryan Skiver adds:

“Videos lack emotion, which is one of the reasons Don says to do your cross and direct within 48 hours of your deposition, because you still know what questions made the deponent feel uncomfortable and what answers made you feel uncomfortable. You cannot get that same emotion from video clips. Questions and answers do not hang in the air on a video. Dramatic pauses with time to look at the jury aren’t possible.”

For some who do it because they think the video is the cheaper option at trial, Arkansas Reptile^© Trial Lawyer Jim Lyons cautions:

“I still think you have to spend the money and focus group what you intend to use with the video being as limited as possible. I understand that…money is tight, but it will be a lot tighter if you do it the wrong way and lose when you can win.” 

THE PROS

With all of the arguments that the KBC graduates presented on the “con” side you might be wondering why you’d ever consider not conducting live testimony. However, let’s look at the flip side of the coin and hear some reasons why the use of video at trial may be more useful than live testimony.

First, we must remember that our deposition was a success. Based on our videos alone, our focus groups are identifying the system failures, holding the defendant responsible for following our safety rules, and finding ways to spread the tentacles of danger. Why should we risk poor attempts at recreating the magic in the courtroom? It is likely that the same pauses, facial expressions, movements, and ticks that we effortlessly produced in our deposition will be lost during trial. However, with the use of video, the defense’s testimony is forever plastered on tape, allowing the jury ample time to analyze and pick apart the testimony piece by piece.

Moderator of the California Reptile^© listserv, Mindy Bish, gives us four possible reasons why presenting a video instead of a live witness may be useful for a Reptile^© attorney:

1. Why should I risk giving up what I already gained?

2. Don tells us that we are to win our cases in the first four minutes of our opening. If we have an “oh shit” statistic, solid rules, and have aligned our case properly in first four minutes (and we know we have because our focus groups tell us), what difference does it make if we use videotape on the powerful moments or a live witness?

3. I find videotape to be more powerful when it is a defense witness. The jurors tend pay way more attention to a defense witness’s deposition, than a plaintiff witness’s deposition.

4. In my experience, when I do not do well, it is because my case became an event case… or, I was not subtle and the jury rejected my position because they thought I was mean or on-code. (Please understand that I have had jurors tell me they would prefer live witnesses in cases where I used videotape, while rendering a verdict for everything I had asked for…so I am of the opinion that they really do not know why they did what they did.)

SOLUTIONS

This article is not about you having to choose one side or the other. I am simply placing the argument that our peers have discussed on the KBC Voir Dire listserv in your hands, and leaving it up to you to use your best judgment to decide what will work in your case(s).

As you can tell, the tenor of their discussion leaned more toward live witnesses at trial. However, the group did not simply rest on these observations. They also formulated useful solutions to use to make use of their discussion:

1. It is important that we focus group our strategy. Not only must we confirm that our videos will influence the jury, but we must confirm that they will be more influential than having a live witness.

2. We should not feel as though it has to be one or the other. Mindy suggests playing the video clip, and then calling the witness to the stand live after playing the video. This way Bubba gets an opportunity to react to both the video and the live representation.

3. If you are nervous about the defense switching their tune, you can always use the videotape to impeach the defendant. George Fusner, Moderator of the Tennessee Reptile^© Listserv, suggests we call the defense witnesses live in their case in chief, and ask them the EXACT same question you asked in their deposition. Be short and to the point. Ask only what you need. Have your video clips lined up in sequence to impeach, and follow the Reptile^© order of proof.

There are a couple of things to take away from this article. For one, this debate occurred on the Reptile^© listserv, stemming from a member who had an upcoming trial.

By simply posting his question to the KBC Voir Dire listserv, he received an abundance of information, opinions, and solutions that he would not have had access to if he had not chosen to engage via this Reptile^© community tool. We have all received enlightening opinions from our peers – solutions we can use in the courtroom – and this article aimed to shine more light on an exclusive conversation on an exclusive listserv, which can only be accessed by graduating from the Voir Dire KBC Course. I hope this article encourages you to engage in debate on the listservs. Each and every Reptile^© listserv is an open arena that is waiting to be filled by the facts and opinions of our listserv members.

Bottom Line: Our Reptile^© listservs have a lot to offer, but only if we collaborate with our fellow members. A simple question can spark answers, fire up debate, and illuminate solutions.

By Don Keenan

Several years ago I wrote a blog on the topic of rat killing, which still gets a lot of traction. It’s a must-read in the Keenan Ball College (KBC) Voir Dire class. That class always includes two half-days dedicated to focus groups, so that students have the opportunity to practice all aspects of voir dire. None is more difficult than the setup and execution of the rat killing question(s).

In my recent Seattle case, we had an unusual voir dire process; it started off with the general, (and I mean general) questions by the court, followed by my having 20 minutes to question the 40 people. Then the defense got 20 minutes and then I got another 15 followed by another 15 minutes by the defense.

I assumed the defense would get into case-specific facts on their first go around, saving me from wasting time on my first round (plus I could listen and formulate follow-ups). So I decided my first 20 minutes would be almost exclusively faster questions and, in that time, not only did I start to go (or maybe achieved) off-code as a lawyer, I also got a ton of information regarding the core beliefs of these folks. Based on the 20+ focus groups we’d done for the case, we developed a demographic that we couldn’t live with and, sure enough, the passion question smoked out the demographics on the jury who would be toxic to the case. Many lawyers watching those 20 minutes might’ve thought I wasted my time but they didn’t know what I was after, nor did they recognize the sheer gold those questions produced.

The topic of this blog is the “rat killing question,” so let me get to that now. After the defense lawyer (note, I didn’t call this guy a Black Hat) was kind enough to give up 20 minutes of his time getting me case-specific information, so that when I got up for my final 15 minutes, the entire time was sheer rat killing. I knew there were three fertile areas to develop rat kills: First were those with a bias against bicycles, second were those who would not consider intangible damages and third, because there was a consortium claim, there were those who could not consider damages for a non-injured spouse or children.

I knew from focus groups (both from this case and others) that these areas were going to be potential places for killing rats and I was not surprised.

In the first category, bias against bicycles, I produced the first dead rat as follows (and thankfully, neither the judge nor the defense lawyer had any problems saying goodbye to this guy). Before you read the transcript, it’s important to know that we previously filed a brief based on Washington law, which says when a disqualification occurs neither opposing counsel nor the court can rehabilitate them. This is clearly the rule in most states, but as you will see shortly, the defense counsel and the judge in Washington did not get that news flash.

BIAS AGAINST BICYCLE RIDERS

Mr. Keenan: We’ve already talked about folks’ bias regarding bicycle riders on the streets and in traffic and as we acknowledge bias is not a bad thing – all of us are biased in some way, shape or form; some are biased against Republicans while others are biased against Democrats – so don’t be afraid to embrace your bias. Before we leave this topic, is there anyone else for any reason that has a bias for or against bicyclists?

Juror 19: Well, I ride a motorcycle and I have from time to time ridden bicycles and anybody that gets on the highway knows that’s dangerous. So my bias is anybody riding a bicycle or a motorcycle that sues someone else, then I don’t think they should be able to do it.

Mr. Keenan: Take that dog down the road and explain why you feel that way.

Juror 19: Well, it’s like if you were riding in a car, a truck or a bus – you likely wouldn’t get hurt – but you would get hurt on a motorcycle or bicycle.

Mr. Keenan: So it’s just black and white for you, that simple?

Juror 19: You bet.

Mr. Keenan: You appear to be a fellow who, once you have an opinion it’s been well thought out and you ain’t gonna budge from it; did I get it right?

Juror 19: You bet.

Mr. Keenan: Move to strike.

The Court: Granted.

INTANGIBLE DAMAGES

Mr. Keenan: Let’s shift gears for a moment. This case will have presented damages in the form of medical bills necessary for the future, as well a loss for not being able to work. Then it goes into another category, which the law calls “intangible damages” and that means loss of enjoyment of life, mental anguish, change in condition, anxiety, worry and lack of self-esteem –those are some examples of the intangible damages.

Some people believe that future medical bills and loss of income, if there is a case established, should be part of the verdict as well as the intangible damages that are determined by the jury.

Other people believe that a person should get a verdict of their future medical bills and their loss of income, past, present and future, but the whole idea of mental anguish, pain and suffering, and self-esteem and the rest of that list they’re just not in favor of that and will have great difficulty reaching a verdict with that issue. Some people strongly believe that.

Does anybody here today agree but lean toward the latter part of the question – you would have great difficulty doing it?

[Juror 4 raises hand.]

So, Juror No. 4, please tell us your concerns.

Juror 4: I struggle with what’s beyond – I feel that people should be compensated, that is, yes on loss of wages and yes on medical bills, but when it comes to anything beyond that – suing for additional money – then I struggle with that.

Mr. Keenan: Do you struggle with it to the point that you just are not going to be able to include that and make that part of your total verdict?

Juror 4: It’s my religious beliefs or my faith that cause me to struggle with suing an individual. I try to put it, aside – I don’t know because I’ve never been a juror before, never been in this situation, so it’s very hard.

Mr. Keenan: Well if it’s a religious belief, which you’re saying it is, we all respect that deeply; it will be awfully hard for you to set that aside in the jury room.

Juror 4: Correct.

Mr. Keenan: And based on that, do you believe that you could set it aside completely and decide the case absentee of your religious beliefs, or will those longheld and deep religious beliefs always be there?

Juror 4: They’ll always be there.

Mr. Keenan: So in other words, if we’re looking for a fair and impartial jury – with all due respect, ma’am – that would not include you. I say this while celebrating your honesty and candor, but you cannot be a fair juror.

Juror 4: That’s correct.

______________________

Juror 18: I could do it the mental anguish thing, but I have no idea what amount of money it should be.

Mr. Keenan: And that’s your concern?

Juror 18: Yeah.

Mr. Keenan: Well, that’s why we have these rooms called courtrooms and that’s why we have witness tables and that’s why, although there’s a lot of experts in this case, I’ve always believed that the best experts in the case are those on the jury because you’ve got the best expertise in life. You’ll hear the testimony, hear the arguments of the lawyers and then you’ll go back by yourself and each one of you will use your life experiences to determine those damages – would you do that?

Juror 18: Well yes, calculating enjoyment and mental problems monetarily has not really occurred to me.

Mr. Keenan: But now that you’re forced to focus on it, do you believe you could do that?

Juror 18: I think so.

Mr. Keenan: Most importantly, could you do it fairly?

Juror 18: I have problems with the word “fairly.” It’s what I like to think I could be but I really don’t know.

Mr. Keenan: Let me ask it this way; do you believe that both sides in this case would start evenly? That is, you would not be favoring one side or the other to begin with?

Juror 18: I can’t say that.

Mr. Keenan: We all sincerely appreciate the problem you’re having with this, and to be able to voice it candidly to all of us. But in the end, you would have great difficulty to the point where it would be impossible for you.

Juror 18: Yes.

The third area for rat killing was the consortium damages, here’s the verbatim transcript.

CONSORTIUM

Mr. Keenan: Part of the things we lawyers owe to you jurors is assisting you in reaching the right result. Now, we’ve been talking about damages, which you may of heard of on television shows, but let’s talk about a type of recognized damage that you probably haven’t heard of: Consortium.

It’s a category of damages, if the law permits a verdict in favor of the spouse. This is a spouse who is not physically injured but, nonetheless, their spouse and loved one was injured such that the circumstance will impact the marriage. Sometimes it requires the non-injured spouse to be a caretaker and as we learned in law school this type of damage is the three SSS’s – service, society and sex. If any of those are interrupted or eliminated, that constitutes a claim for the spouse who has not been physically injured. Some people believe that the legitimate item of damage in which they are to consider all of the evidence and if a party has been found to be at fault and there is a verdict for the injured spouse, that it is right and proper to consider a verdict for the non‑injured spouse. Some people believe this.

Other people say that the injured spouse should be compensated but just because there’s a marriage, the non‑injured spouse should get nothing because marriage is for better or for worse and they don’t think the non-injured spouse should be compensated no matter what the circumstances are. Once again, we will all respect your opinion, we just need to know what it is. So does anyone believe that the non-injured spouse does not deserve a verdict?

Juror 9: Yeah. Marriage is for better and for worse so it would be like the compensated one would be the one who is injured and not the one who has not been injured.

Mr. Keenan: So you would not consider any damages to the non‑injured spouse.

Juror 9: That’s correct – that’s just the way it is.

Mr. Keenan: And you hold that opinion firmly. I can see in your face you’re not going to change it or let anybody change it for you.

Juror 9: Correct.

Mr. Keenan: Thank you, ma’am.  Anybody else here who could not do it?

Juror 4: Yes, that’s the way I feel and I do have a strong opinion.

Mr. Keenan: And you’re not going to change. No.
__________________________________________

Mr. Keenan: Juror No. 45, you raised your hand.

Juror 45: I think my issue, and I guess I would say the evidence would be important, is what the special circumstances are with either spouse in terms of, you know, prior to the accident, and physical disability or, I mean, I would have to do that in relationship with the prior situation.

Mr. Keenan: I appreciate that.

Juror 45: However, I think it would be weird to designate the spouse as opposed to also the parents of the person who was hit and the children of the person – it’s like, where do you draw the line on everybody that’s been affected by the accident? I’m not sure it should cut off with the spouse.

Mr. Keenan: Well, we do appreciate that and sometimes we have problems philosophically with certain legal circumstances, but my question – whatever the concerns you have are strong, legitimate concerns, do they stop you from considering that the evidence supports it – the verdict on behalf of the non-injured person.

Juror 45: Well, I have nothing unequivocal. I would have a hard time awarding something to that person, I think, who was not the person who was injured.

Mr. Keenan: So that “hard time” is something you feel strongly about.

Juror 45: I think it is – I don’t think it would be impossible, but it would be difficult.

Mr. Keenan: So here is the question: Would you be comfortable judging their case?

Juror 45: I don’t know, I guess I would say if there’s a question in my mind as to whether the non‑injured spouse should get damages then I suppose there’s a question.

Mr. Keenan: Well that’s the beauty of the jury system – that’s how this is supposed to work. Thank your, ma’am, for your candor. So the bottom line is, you don’t believe you could do it, be fair and impartial.

Juror 45: Correct.
__________________________________

BOTTOM LINE: Ok, it’s test time. You are in a state that prohibits juror rehabilitation. You have the five jurors above who have been questioned and challenged on cause grounds (jurors 19,
4, 9, 18 and 45). Which are disqualified on cause grounds? Reply to mpeterson@keenanskidsfoundation.com with your answer.

By Michael Peterson, Keenan Law Firm

Richard Hall and Anthony Tantillo return as Reptile^© superstars of the Keenan Trial Blog. Richard and Anthony practice plaintiff’s personal injury law at their New York-based firm, William Mattar, P.C., where they specialize in MVC and slip and fall cases.

INTRODUCTION TO THE REPTILE^©

It was around 2011 when Richard picked up Don Keenan and David Ball’s seminal book, Reptile: The 2009 Manual of the Plaintiff’s Revolution. The first time Richard used the Reptile^© was during jury selection, where he was stunned to see how the Reptile^© encouraged lively and stimulating debate amongst the venire. The reactions he saw were more honest and substantive than any of the reactions he had received in his non-Reptile^© cases.

For Anthony Tantillo, it was the phrase, “Conscience of the Community,” that persuaded him to join the Reptile^©. According to him, conscience of the community encourages the jury to be more than a man or woman in a seat, but an active change agent in their community.

Richard and Anthony have attended every Reptile^© seminar offered and are graduates of six Keenan Ball College (KBC) courses, including Rules and Case Selection, Openings and Order of Proof, Damages, MIST, Trial, Mediation and Settlements. Richard and Anthony feel the college is very distinct from the seminars. While the seminars provide a groundswell of new information in a large group setting, the KBC brings a personal touch with one-on-one guidance, hands on participation, and peer driven feedback.

FACTS OF THE CASE

This case concerned a motor vehicle collision where the defendant ran a red light and struck the plaintiff head-on, as the plaintiff was traveling down the road. The damage to the plaintiff’s vehicle was substantial and, as a result of the wreck, the plaintiff suffered two lumbar herniations and whiplash symptoms. The plaintiff also underwent a shoulder injection for the pain stemming from the wreck.

The defendant originally claimed that his view of the red light was blocked by a train bridge, but later changed his testimony at trial to say that he ran a green light.

The Defense denied any fault prior to, and throughout, the trial. The insurance company made an offer of $20,000 and a final offer of $50,000 before the trial began. The plaintiff refused both offers.

PRE-TRIAL REPTILE^©

Before trial, Richard and Anthony organized many focus groups. They used the focus groups to develop their safety rules and bumper stickers. They learned through the focus groups that they did not need much to prove liability; the participants told them to put away the maps of the intersection, and to simply tell the jury that the defendant ran a red light.

Richard and Anthony also used their focus groups to determine how to convey their client’s damages to the jury. They gave the focus groups a choice of six medical providers they were considering for use during trial; the participants helped them narrow down the list to the plaintiff’s chiropractor and primary care doctor. Richard and Anthony also used focus groups to test their medical terms; the participants told them they would describe the plaintiff’s injury as a “torn disc” versus the more medical/sterile terminology of “disc injury” or “disc herniation.”

Richard and Anthony also focused their system failures. They presented their statistic to the focus group, which claimed that of 1,000 wrecks, 20 percent result from drivers who choose to run red lights. The focus groups were all surprised by the statistic. Richard and Anthony made this statistic their first system failure. Their second came from the defendant’s denial of fault. Richard and Anthony argued that the defendant’s failure to take responsibility was a problem that had reached an epidemic level in our country.

JURY SELECTION

Richard conducted jury selection, which he started by going off-code and empowering the jury. He let the jury know that, if selected, they would have the power to enforce the rules that keep the community safe. Richard did this by obtaining a transcript of the jury room video that plays during initial jury orientation. Richard and Anthony chose the transcript of the jury room video because it allowed them to stay off-code, while providing the jury with an opportunity to hear the conscience of community argument straight from the Court’s own mouth.

Richard read the following:

“Remember that when we serve on juries, as many thousands of us do all the time, all over the country, we are not only guaranteeing the rights of others to a fair trial, but guaranteeing the same rights for ourselves, and our families.”

Richard asked the jury what that statement meant to them. This exercise produced a lively crosstalk on the subject. From there, he went to discuss the safety rules. He asked the venire if they agree that a driver must follow the rules of the road to avoid placing the community in danger. Everyone agreed. A few jury members even had the opinion that there was an epidemic in America of people getting away with a “slap on the wrist.”

Rather than going on-code as lawyers and feeding into their argument, Richard and Anthony allowed the jurors to broadcast their opinions to the group. A few members cited a recent judicial scandal in the local county, while others mentioned the Hillary Clinton scandal as evidence that our society is facing an epidemic of people not taking responsibility. These discussions showed the jury that they have the power and a duty to hold people responsible for their actions.

REPTILING THE CASE

Richard and Anthony heavily relied on their training from the KBC courses and their focus group sessions to steer the direction of this case.

Richard delivered a KBC Opening. He spent a majority of the opening on their No. 1 safety rule; drivers must always stop at red lights. The theme of the case centered on the repentance argument, and Richard and Anthony both observed the jury nodding their heads when they argued that it was important to admit when you do something wrong, ensure it never happens again, and pay for the damages caused.

After the opening, Richard and Anthony followed their order of proof. They let the first responder police officer set the scene of the wreck, confirm their statistic, and explain that running red lights is a problem in the community. Anthony went on to examine the eyewitnesses, who described what they saw and helped polarize the defendant’s testimony. The defendant originally claimed that his view of the traffic light was blocked by a train bridge.  When pressed by Richard on the stand, the defendant actually stated he “ran a green light.” Anthony later argued that no one “runs green lights.”

Richard showed the jury that the defendant was willing to say anything to deny responsibility. During discovery, Richard and Anthony learned that the defendant received a speeding ticket from the wreck and was able to get the ticket dismissed. They used this information to show how the defendant was already “cut a break” and argued that conduct rewarded is conduct repeated. They further argued that the criminal justice system had failed the community and they urged the jury not to let that happen again.

Richard and Anthony next examined the plaintiff’s chiropractor and then primary care doctor. The doctors came off as honest and friendly. Richard and Anthony used a simple visual with both doctors, which had been developed during several focus groups. The visual consisted of a two-sided Microsoft Word document. On one side there was a list of times their client went to the doctor before the wreck (a total of five times); on the flip side, there was a list of how often the client went to the doctor after the wreck (which was enormous, taking up the whole page). This visual was particularly powerful, one of the jurors even audibly gasped when they saw it.

The last person to take the stand was the client. Anthony had worked with the client to make sure he knew his major truth, which was, quite simply, that he had a green light and he did nothing wrong.

The client’s major truth coupled with his image as a good, hard-working guy helped take him off-code. Anthony’s direct exam helped show the jury that the plaintiff’s claims were accurate and true. The plaintiff’s willingness to stick with his major truth left the defense weak and ineffective. The plaintiff did not claim specials, lost wages, or future medical bills. According to Richard and Anthony, their exclusion of these special damages helped to bolster the honesty of their client. All that remained was to show the jury the pictures of the damage to the car. The sheer damage from the crash caused one juror in the back row to loudly exclaim, “Wow.”

CLOSING

Anthony began his closing by restating their safety rule. He also reminded the jury that the defense had yet to claim any responsibility for this wreck

The closing focused on deterrence; Anthony asked the jury to send a message to the defendant that the community would no longer tolerate this kind of rule violation. Anthony hammered damages home by using the “pebble and the shoe” argument: He asked the jury to imagine a pebble in a shoe and argued that for one day, having a pebble would be irritating; for two days or more, it would become a problem. At that point, we would all be trying everything possible to get that pebble out of our shoe. Anthony argued that for us, we can simply take off the shoe; however, his client could not, and would never be able to

Finally, Anthony made sure to arm the jury one last time by letting them know that they had the power to stop this from happening in their community by rendering a verdict in favor of the plaintiff.

VERDICT

The plaintiff received a $1.17 million verdict, which served as a record breaking verdict in the county for soft tissue damage. Their client was elated. Neither the plaintiff nor especially the defense expected a verdict this large.

CONCLUSION

Richard and Anthony give thanks to Don Keenan for everything he has done to share the Reptile^© methodology. According to Richard and Anthony, the KBC faculty is an incredible resource and has been instrumental to their successes; they believe that if you follow the lessons the KBC teaches, the verdicts will come and amazing things will happen. Anthony and Richard believe there is no better proof that the KBC courses truly work than this verdict. Using their case selection criteria, focus groups, safety rules, and polarization, Richard and Anthony were able to overcome the pitfalls of a conservative jury and empower the jurors to act as the conscience of the community.

By Don Keenan

Disclaimer: This article is not so much an infomercial for the consult as it is recognition of a cutting edge trend in trial practice that you need to be aware of, either as a future consultee or consultor.

ORIGIN

When the Reptile^© first exploded back in 2009, the phone at the Keenan Law Firm literally rang off the hook with lawyers wanting co‑counsel on their cases to make sure they did the Reptile^© correctly. Some of the callers were past referring attorneys I’d worked with in the last 35 years; however, the vast majority was new lawyers (many who were already very accomplished).

Then one day we reached a point where we simply couldn’t take any more cases (or, at least, take them and be able to staff them properly). I’ve always vowed that one of the cardinal sins of plaintiff’s practice is taking a case that you cannot immediately attack and push to an early conclusion. One of my very good friends and prior referring attorneys said to me, after we told him no, “Papa Don, there must be another way?”

Therein began the origin of what I want to talk to you about today, which is the consult: www.keenantrialconsult.com.

CONSULT vs. CO-COUNSEL CASE

The first and perhaps only difference is that neither I nor anyone at the Keenan Law Firm is ever an attorney of record. As such, we don’t take depositions, attend ADRs, or participate in the trial of the case. But for everything else, we are up to our eyeballs in the case.

WHAT ELSE IS LEFT?

We begin a consult the same way we begin co‑counsel and that is with either one, two or sometimes even three focus groups. These are done first to determine if we can make a difference. If we can, then we commence working on an end-game strategy, overseeing the discovery to include the depo “hit list,” the client/witness prep and “major truths,” development of the timelines and all other aspects of demonstrative evidence. Finally, we oversee the swift boating of the ADR.

If and when the case goes to trial, we are available for extensive trial preparation and daily communication, either by phone or video conferencing.

WHAT ARE THE BENEFITS?

With a consult, you and your firm remain in total control of your case. Any consult advice we give, you’re naturally free to modify and/or reject. Additionally, on top of the one‑on‑one consult, you are also included in a specialized case workshop twice a year. All of our co‑counsel or consult cases fall into the following categories:

• Tractor-trailer
• Commercial vehicle
• Premises liability
• Intentional torts
• Malpractice
• Products liability, and
• General (for any other miscellaneous categories)

Whether you are a co‑counsel or a consult, you are included in the workshop dictated by your type of case. We make sure there are no more than eight lawyers per workshop and we conduct two case-specific workshops per year at the beach.

WHAT’S THE BENEFIT TO PAPA DON?

Obviously the consult fee is less than co‑counsel, yet the amount of time I’ll put into a consult equals (by the time of the conclusion of the case) the same amount of time as if it were a co‑counsel. However, it’s possible to do ten consult cases for every one co‑counsel – mainly because there is no travel involved or hands-on direct work with the client or witnesses.

This saves a considerable amount of time, leading me to the powerful benefit: We get to see ten times more cases and clearly, after a while, we start seeing the same reoccurring defenses and the same reoccurring problems. As such, we have developed a body of knowledge that we would have never had with a purely co‑counsel case load.

WHEN DO YOU DO A CONSULT?

Well, we clearly prefer doing the consult at the beginning of the case, which ensures we can have a major impact and time to do many focus groups along the way. On occasion, we have done consults a week before the trial. The winning streak won’t last but remarkably, in all of those week-before-trial-consults, the case has either resolved for big money or went to verdict for the same.

WHAT ARE THE FEES?

If we start from the very beginning, the consult fee is usually about one‑third of your fee, net. Thus, if you had a referring attorney the referring attorney fee would come of off the top first, then our third comes out of the remaining. Depending on how much work will be done, and the degree of difficulty on the case, the consult fee could be as low as seven percent, but is never more than a third.

WHAT’S THE TRACK RECORD?

We’ve done well over 120 consults; to date, only two resulted in defense verdicts. Both were early in the consult development time frame.

Within a two‑month period, we had two $15 million verdicts on consults. One of those cases was a retrial from a hung jury, where there was only one juror on the hung jury. Thus far, our consults have led to 5 eight-figure cases and more than 32 seven-figure cases.

Because the referring attorney maintains complete control of the settlement amount, no settlement has been below $500,000.

CRITERIA FOR CONSULT ACCEPTANCE

Generally, the case must have a (grossing) value of $1 million or more; however, there have been exceptions. Our co‑counsel criterion is $5 million gross or more. The case must have a successful focus group and I’m often surprised as to which cases make it through the focus group, and which do not.

CAN THE CONSULT BE CHANGED TO CO‑COUNSEL?

Of course! But the $5 million threshold must be met.

When we considered offering consult services, I called around to several lawyers with practices similar to mine and asked whether or not they’d ever offered a consult. I was surprised to find them all say they’d never considered it.

IS A FLAT HOURLY RATE AVAILABLE?

To put is simply: No. I’ve never been a Black Hat and an hourly fee makes me cringe. Plus, I want to know the case is good enough that I’ll work solely on contingency. Beware of the guy offering a flat hourly fee because that person has no skin in the game. They’re not going to have the guts to tell you the case is a dog. When people submit their cases to us, we have no problem telling them that dog won’t hunt.

Seven years of providing consults has convinced me that this arrangement will grow in the future. I can see top employment lawyers offering consults rather than co‑counsel, same for MIST lawyers, slip and fall, commercial cases, divorces… The list goes on and includes all categories of cases.

Perhaps in the future you will consider a consult; if so, I would enjoy working with you. Furthermore, if your expertise develops along with your track record of proven results, I encourage you to consider referring attorney arrangements on a consult basis as well.

BOTTOM LINE: Trial practices have evolved and a consult may be in your future. Find more information by visiting: www.keenantrialconsult.com.

Opening by Don Keenan / Closing Argument by Pat Maloney Sr.

This week’s guest blog is a real treat – it’s a closing argument given 30 years ago – and I’d encourage you, please don’t read this one in a rush. Get some private time and squeeze this beautiful orange.

San Antonio lawyer, Pat Maloney, Sr. (1924 – 2005), has had a significant influence on my life starting back when I was a puppy lawyer and I stumbled on a series of cassette recordings (remember those?) called, “Million Dollar Arguments,” where lawyers were invited to re‑give great closings on tape. Plaintiff’s lawyers around the country could then purchase some or all of these outstanding arguments. Hands down, my favorite (for reasons you will soon see) was Pat Maloney’s $26 million closing. I listen to it over and over again, because of its power and because it rocked me to my emotional soul.

Many years later, I became the youngest member inducted into the Inner Circle. It was at that time that I met Mr. Maloney in person, along with his long-standing wife Judge (our clever nickname for her because she was, of course, a judge) on the way to breakfast on the first morning. I was awestruck and called him “Mr. Maloney.” He laughed and said, “You’re that kid from Georgia,” – right before he said, “stop calling mister.”

Pat later became President of the Inner Circle, which came as no surprise. I was elected President to follow Pat, and that was a big surprise (to me, at least). As his Vice President, I got to spend some special time with Pat, including time at his larger-than-life office building in San Antonio. The office was laden from floor to ceiling with memorabilia and had a desk bigger than Texas.

Today, my friends, what follows in this blog is an argument that will make the hair on the back of your neck stand up – because of its power and because Pat was Reptile^© before Reptile^© was cool. If you have a minute please take out a highlighter or a red pen and underscore the multitude of Reptile^© references and issues in the below. You will find it truly, truly remarkable.

If you’ve got a moment I’d really appreciate feedback on this one. –Papa Don

Note: To download a PDF version of this closing argument, click here.

FLORES v SURTIGAS: Million Dollar Arguments

                                                May it please the Court and you,

Jurors true, I’ve now spent 30 years in trying lawsuits

in many places in Texas and many places in the United

States and I sincerely feel that every case that I’ve

ever tried is really a predicate for this particular

lawsuit.  I sincerely feel that notwithstanding all of

the injured people, all of the pain, all of the mental

anguish that I’ve embraced as an attorney, encompassed

and talked about all my life, all of that

disfigurement, all of that misery absolutely pales when

contrasted and compared to the pits, the depths, and

the morasses of suffering and mental anguish and

disfigurement encompass an young Jimmy Flores whom we

represent in this case.

At this time I’m so aware of my own

Inadequacies and my own disabilities in performing this

Terribly formidable task of adequately representing

this young man, his family, and Magdaleno Solis.   You

Will recall three month, two weeks, and five days ago

in voir dire examination I asked each of you,

Individually and collectively, do you have the courage,

Can you stand tall enough to give millions and millions

And millions of dollars in this case if you feel the

Facts and the circumstances warrant it.  I told you

then you are going to hear of suffering and of pain an

Of mental anguish and of mutilation and agony,

the like of which you’ve never heard or contemplated before in

your entire life.

You were told several months ago

Before you became jurors that you would hear a story of

tragedy which cannot possibly be equaled.  I told you

then that you would hear expert after expert after

expert testify as to the design and the manufacture of

this tank by the defendant, Lubbock Manufacturing

Company, which did make and does make now and

Unreasonably dangerous product for the purposes of

which it is intended.  You’ve seen that this promise

And this assertion has been very richly fulfilled.

During all of these many months and many weeks that you

And I have been together, I’m sure it hasn’t escaped

Your attention that you community is blessed with the

Services of a magnificent judge who has given us a

Very, very fair trial.  You’ve seen him under very

Trying circumstances recognized that your community and

His community as a consequence of this terrible debacle

Have been put through great and collective agony and

Anguish and pathos, the like of which has never been

Known before in the history, not only of this state,

but in the history of the United States.

We told you that the very best minds

In the country on this subject would be brought before

You to testify that this is a catastrophe which never

Could have happened but for the negligence, but for the

Fault, the greatest catastrophe in the history of the

United States on your highway and the very thought,

Jurors tur, it could have and should have been avoided

is socking but a terribly true conclusion.  Just

Think, with the properly designed and built tank, this

Holocaust, this inferno all would never, never have

happened.

No, in discussing the overall aspects

Of negligence, we’re not going to detail that is

Preceded by me during the last three days, by the other

attorneys and the other attorneys and the other

attorneys, but rather we’re going to generally

summarize some of the salient aspects as to why in

design and manufacture there were glaring failures.

Before doing that, however, there are

some ideals and some ideas that we can perceive as

proper guidelines for you and vehicles for you in your

deliberation and in your judgment s jurors true.  When

it comes to the agony and the suffering and the anguish

in this cause, I warn you now, I’m going to lay it on

you pretty hard and pretty heavy because I think to do

otherwise would be the height of infidelity.

Notwithstanding, my five children, now

Since grown, I’ve never been one to say, now, you’re a

Young man or you’re a young woman and, therefore, don’t

You dare cry.  That’s nonsense. The Lord made us to

Laugh and he made us to cry.  So, I don’t have any

Apologies when someone like little Norma Flores,

Jimmy’s sister, got on that stand and started to tell

you about Jimmy.   She broke up and so did I.  You saw

that we were already break up during my interrogation

of her, as I could see you as jurors were also, and I

Admit I simply couldn’t go on with the interrogation or

her recitation.  I don’t apologize for it because when

you as jurors were crying with me, I couldn’t see

anything wrong with it then nor do I now.

The deep compassion which I am going

To call from you during the time that I’m going to

Visit with you may be a little too much for me, also.

But, again, if it is, I have no apology because it’s

Something that has to be done if a fair trial is to be

Accordied in this dreadful cause.  When I tell you,

Jurors true, about the integrity of our system and

about the height to whch you must necessarliy reach, I

Feel ideals and stories and comparisons are helpful and

Necessary in order that you walk the path to which you

are necessarily now assigned in the pursuit of a

Faithful verdict.  I know that you’re not the kind of

Group who has given weeks and weeks and weeks of you

Time from your families and you lives and you

Pleasure and your buisnesses if you did not believe in

The democratic processes which embrace the aims and the

Ideals which I’m now goinginto review with you.

A very long time ago when we as a

People were trying to break off the yokes and the

Tyrannies of England and become a country, we had in

Our midst a person by the name of Citizen Tom Paine.

He was called Citizen Tom because probaly more than

Anybody else he was the one who was fundamentally

Responsible for the successful idea that pervaded the

pre-revolutionary days.  During the Revolution, you

Probably know we had tremendous desertions,

Particularyly in the wintertime.  The reasons for the

desertions were simple, indeed.  It was cold and it was

Cruel and the men were so terribly desperatley needed

Back at home.  Citizen Paine had a phrase and he had a

Story and I give you that phrase and I give you that

Story now in order that you may ascend to the heights

In your jury deliberation.  Citizen Pane said, “Don’t

Be sunshine patriots.  Don’t be summertime soldiers.”

It’s the same sort of admonition and prayer and

Suggestion that I have for you in juror deliberation.

It’s the same philosophical obsevation that we have

For you as jurors when we talk to you, as we will very

Shortly, of millions and millions and millions of

Dollars for the pain and the suffering and the misery

Which no cause all of us here.  We’re going to ask you

Not to be summertime soldiers and not to be sunshine

patriots but to stand tall.

One of the turly great men in this

Country, Thomas Jefferson, was given to explain about

Public servie, thusly, when he said, when you have a

Position of public trust, you are public property.  Fo

The first time and probalby the last time in your life,

You now have the strange and terribly responsible role

Of public turst and public property.

Very shortly, my coments will be

Terminated and then you’ll have the awesome

Responsibility and challenge of reviewing thousands of

Exhibits, months of testimony, and the tremendous

Losses which have resulted because of a defectivley

Designed and poorly manufactured tank by the defendant,

Lubbock Manufacturing Company.  Obviously, a juror’s

Service is a public trust.  Obviously, a juror’s

Verdict is public property.  We must all live now in

Your public trust and your verdict must now service as

Public property for all time.  In rendering your

Verdict, therefore, you do, indeed, write history.

It’s recoreded here in this courthouse for all time, for

All people, and for all generations to come and see

What you have written under these circumstances, not

For this moment but for all ages.  It is only you who

Can write this particular history.

Shortly, your going to hear a

Request for the most hisorically large sum of money

Probably ever asked for in any courthouse anywhere at

Any time.  In doing so, you must realize your verdict

Will ever stand now and forever until your

Grandchildren have grandchildren.  In my judgment,

Your going to be one of the proud members of whom it

Will be said you gave so much because the situation

Demanded so much.  Therefore, let that verdict be a

Proud moment in history for you and all others.

Several hundred years ago, there was a

Man by the name of John Donne.  He was a great

Chruchman.  He was a great patriot. But most of all,

He was known and remembered becasuse he wrote very

Eloquently.  He wrote these words, which apply to your

Jury verdict, which you will shortly write, he said:

Ask not for whom the bells toll, no man is and island,

We are a part of one continent.  So, ask not for whom

the bells toll.  The bells toll for you.”

Naturally, it can never be suggested

Or said your verdict is not going to touch you in some

Way in your own life and the community generally

Beacuase that’s  your role and that’s your office, not

Only in the most important role of all, and that’s the

Assessement of actual damages, but also the imposition

Of exemplary damages.  And we’re going to talk about

Exemplary damages and the role and the function of

Exemplary damages as they relate to you as jurors.

They are your opportunity to send a message to a

Miscreant and throughtless manufactuing corporation

That should read, in effect, scrub up your act so this

Terrible tragedy may never, never happen again.  And

I’m going to try to tell you not in the same scientific

Detail which you’ve had for three days by lawyer after

Lawyer after laywer and expert after expert after

Expert, but, rather, I’m going to give you my

reflection on the experts who impressed me the most and

why they did. Both as to the actual damages and

exemplary damages, I think the most impressive witness

in the entire expert field that you’ve heard was that

of Professor Zaid {phonetic}.  I’m not only impressed

with his knowledge, but I’m impressed with his sense of

fairness and indignation in this matter.  You recall

his absolue outrage at the manufacture of the tank

when he said how useless and how unnecessary this

entire  holocaust and explosion really were, that it was

unnecessary had there been comopetence and had there

been proper design and manufacture.  I got the

impression, frankly, that the truh came out even more

saliently and seriously in the cross examination rather

than in the direct presentaion.  That’s the reason why

I agree with my firend on the defense who said cross

Examination is the crucible of truth.  In his case,

That of Dr. Zaid, indeed, that was the case.

Another expert who impressed me

Immensley was Dr. Grubbs {phonetic}.  I cannont help but

Relate him so closely to the dead man, Verduzco, the

driver.  During the past 30 yers, franly, I’ve

represented many people who have been killed or
traumatized or injured or misunderstood or downtrodden.

In this instance, we cannot evision a single shred of

Evidence based upon that experience of credible

Testimony which justifies the remarks that the driver,

Verduzco, should not have been driving this

Tracto-trailer more that 35 miles an hour.  Such

Comments can only meet with agreement by you when it’s

Proven by a preponderance of the eveidence.  As I

Understand it and saw it and heard it, Lubbock’s only

Real defense in this case is attempting to lay the

Entire blame on the dead man.  We feel, understandably,

That this attempt is being made to disguise their own

Ill-doing, their own tepidity, their own terrible wrong

And the tragedy which never, never should have

Happened.  And I’m like you, or some of you, in that I

Don’t profess to be able to talk knowlegeably and at

Lenth about stress test and the CG and all of the

Various elements and components that go into the

Reason for their opinion.  I’m trying to talk to you

As a lawyer of three decades as to what leads me

Personally to the truth as to the defective and faulty

Design and manufactured tank in this case.

The witness, Horn, who came from

Pitsburgh and has talked so knowledgeably as to the

Defectivemess of the tanks and, yet I remember little
Or nothing in the way of cross-examination from the

Lubbock atorneys in the face of his massive and

Overwhelming testimony as to the defect and poor

Manufacturing.  Then Lubbock  had this other expert who

Was so formidable, so exhaustive, and yet, he said he

Could find absolutley nothing wrong with the fifth

Wheel.  When I heard him make this remark, I concluded

Under the evidence if Lubbock really did have anything

Against the fifth wheel, they’d have live testimony,

don’t you agree? They would bring in the experts, like we

Did, from New York or California or Pitsburgh.  I

don’t think, do you, hearing that Lubbock is the

Biggest tank manufacturer in the world there was lack

Of resources or money that prevented them from bringing

In live experts to testify before you, rather than

Using the written depositions. I think, don’t you, it

Was the truth that prevented the apperance of such

Witnesses?

Lastly, as to the experts and the

faulty design and manufacture, we now come to

Mr. Henerdson.  Wheather you are trying a fifth wheel

Case or a negligence case or a products liablity case,

Brining in Mr. Henderson live, the man who actually

Did the sesigning of this tank, was both essential and

Mandatory, necessary and right.  I’m sure that all of
You folks, all of you jurors truem, are going to want to

Know the answeres to questions that would have been

Posed to him had they been good enough to bring him

Here.  He’s still in their employment.  He’s still the

Prinipal designer.  He’s still absence.  You would

Have asked, and I would, was the tank ill-designed, was

It poorly manufactured?  And you would ask him,

Wouldn’t you, why don’t you bring the man in who

Actually did the design, who actually was in charge of

The manufacturing? Then we, as jurors, could see him.

We could hear him.  We could listen to him.  We could

Evaluate him but, most of all, we could see him, too,

Being cross-examined.  What it amounts to, jurors true,

We could see the cut of the fellow who actually did the

Designing and who was in charge of the manufacture of

This actual offending tank.  You know, jurors true,

Nothing speaks louder, nothing is more significant

Concerning defective design and manufacturing than the

Absence of Mr. Henderson.  The failure to bring him

[permits of no other concludion than that he could not

Help Lubbok’s cause.  They convicted themselves just

As surely as if they had written a confession:  I did

Poorly design the tank.  It was defectively

Manufactured.  We were negligent.  And the signed that

Confession, Henderson, designer.  It couldn’t have been

Any clearer.  It coun’t have been more convincing.

The guy that had to be rused up to this Del Rio

Courtroom, scrubbed up, brought in at the last second

Was Mr. Preston, who works forMr. Henderson.  What

does this tell you?  It tells you there was

Desperation, it tells you there was guilt, and it tells

You those are responable and fair conclusions. You saw

What a terrible position Mr. Preston was put in as a

Consequence of this desperation.  What are you going to

do when the  head man can’t or wont come beofre you in

this moment of truth?  Three years after this terrible

debacle and holocause, they put on Mr. Preston who

doesn’t really know about the design and manufacturing,

but they refused to put on Mr. Henderson who knows all

about it.

Really, you don’t have to go any

further, do you, in writing in yes on this chard based

upon the eveidence and the premises because the failure

to produce Henerson compels yeses, does it not?  As

suggested to you, for all of these reasons, and the

many, many more that you’ve heard for three days of

argument preceding me, we lay one hundred percent of

the cause, producing and proximate, to Lubbock

Manufacturing company.  Dr. Zaid, Dr. Grubbs from the

standpoint of competence, education, ability are

largely undisupted.  Mr. Henerson’s silence confirms

their testimony about defective design, faulty

manufacturing.

As to the fifth wheel, it will be said

that when Mr. Wiley’s client paid $5 million, this

indicated that his product  must be defectively designed

and manufactured but we don’t agree.  And Mr. Wiley is

going to comment very shortly in this case, as soon as

I’m through, and I’ll shortly be through, it seems to

me, as I recall his testimony, that he said that in his

judgment this case is worth 50 or 100 million dollars

and, therefor, the 5 milllion is a pittance and a

fraction of its ture worth; and I agree, don’t you?

And we’ve tried to reivce with you without redundance

as to why these issues should be answered yes.  I think

you’ll agree that examination of the expert testimony

tells these affirmative concludsions.

Let’s turn to the grizzly audit for

pain and suffering and disablity and disfigurement and

mental anguish.  This is the hardest.  This is the most

challenging.  This is the most important.  I want to

tell you a few things that are important

philosophically and you understanding the pitiful

consequence that Jimmy, child of ashes, preacher of

this inferno.  In considering the importance of your

verdict, I many times referred to it as a written

testament, your legacy that we all must share in in

glory and pride or in dismay and disappoinment.

Remember with me the words of the great Cardianal Newman

when he suggested the importance of the endeavor of the

moment by saying: I do not ask to see the distant

scene- one step at a time is enough for me.

As jurors, stand like giants, tall in

the realization, this challenge is yours, this

responibility is yours, this verdict is unquestionably

yours.  And by its comprehension, its wisom, its

fairness, its size, it will resound not in this

community, but throughout the United States making the

greatest historical strides in contribution ever known

anytime anwhere. We need to paint for you the picture

of the human heart.  The heart doesn’t have a handle on

the outside.  The heart has a handle only on the

inside.  That’s why we brought to you the nurses, the

doctors, Jimmy’s friends, his teacher, his coaches,

his pictures beofre, his pictures after, all of the

bills, everything which would enable you to use the

handle of your heart from the inside, not for sympathy,

not for prejudice, not for passion, but total

understanding and total comprehension.

Why do we do this? Because we know

you’ve got to write a bottom line on the most

devastating hisory in the entire human specturm of

this explosion.  You’ve got to realize that Jimmy

naurally didn’t want to sell his ears or his lips or

his eyes, which are all gone, or his face or any of the

other 90 percent area of his young but mutilated body

for any price.  But whether Jimmy likes it or not, he

has put them on the marketplace of compensation because

they’re gone.  You must write in the price.  Of Course,

he wouldn’ and, of course, he couldn’t put a price on

the pain and the suffering he’s endured or on that

which his mother and his father and his brother and his

sister must endure by just seeing him suffer hourly and

daily or realy on the sale of the teenage life which

was his and which will never, ever be or on the idea of

dating in his formative year or realizing whatever

personal history and aims and aspirations and dreams

which were his of getting married, having children,

having grandchildren. Never more, Jurors true, never

more, never a single chance.

What’s Jimmy got right now? The

children that you heard that testified before you

say he’s a monster.  Well, we know because he never leaves

his room, except for the hospital bed, that he’s a

total social outcast.  Now, you and I have lived

together for a long time, more than three months.  It

must have crossed your mind again and again and again,

is that lawyer really going to bring Jimmy into this

courtroom and must we really view him and must we

really hear him? I’m very hopeful that surely deep

down you know we wouldn’t do it, nor would Jimmy’s

family or Jimmy permit it.  Naturally, Jimmy doesn’

want to see you and he shoudn’t have to.  Jimmy as you

know, wsa a young fellow who was so bright, so full of

life, with so much to look forward to in the way of a

full, active, bright and satisfying future.

Who was it that said maybe death would

have been a blessing? Bu Dr. Larson {phonetic} said,

no, we can never play God.  So, therefor, God in his

wisdom has said that Jimmy must live out is 55 years

of life expactancy literally as a mummy caught up in

that scarred body so bad that his closest friend,

George, said, “I couldn’t get up the courage to look at

him.”

Oh, one of my defense brothers at the

Bar has been good enough to remind you that we’re not

here to talk about sympathy.  I agree.  He’s completely

right.  And do you know why? Because sympathy when you

refer to Jimmy is demeaning.  When you are as proud and

competent and brave and courageous as this youngster

is, sympathy is not a proper comapnion.  Sympathy is

really equivalent to charity and both of them are

inadequate when we talk of Jimmy.  Sympathy is

something you give and it so often prompts you to look

down on the person that you give it to and maybe think

that you’re better than he is.  No, when you talk of

sympathy, don’t refer to Jimmy because he deserves

something so much better, prouder and more adequate and

appropiate than sympathy.

The indians of yesteryear had a

saying:  “you’ve never known a man until you walked a

mile in his moccasins.”  That’s the difference between

symapthy and compassion.  Any lawyer, particularly the

lawyers representing Lubbock Manufacturing Company,

say, as you’ve heard them, you’re going to see the most

sympathetic sight and hear the most sympathetic words

you’ve ever seen or heard when you hear the remarks by

Jimmy Flores’ laywer.  Anyone who suggest such a thing

to you is simply trying to tel you in a very wrong way,

in a very perverse way, that the millions and millions and

millions we’re now going to ask for Jimmy

serves no useful purpose.  Such conversation about

Jimmy and symapthy is an attempt to trick you.  This is

not the time and not the place for a game of trickery.

Its time for understanding, comopassionand fairness

and justice.

So, you see, you havn’et heard from me

or Dora or Manuel asking you to give Jimmy anything.

You’ve never heard me ask that Jimmy be given anything.

He’s already had everything taken from him.  So, in the

interest of justice, I would demand for him, as I would

any proud or free American, that you give him the right

to come into this courtroom, a temple of truth and

justice, and preove his losses and then give him fair

comopensation, jurors true, never a gift.  Proud people

on’t want gifts. They want to be paid fairly and

squarely and fully for the immense and the profound and

the incalculable losses which this young man has

endured.

Let me explain it very simply.

Presume for the moment that Lubbock Manufacturing

Company lost one of its tanks which sell, conceivably,

for a million dollars and the wrongdoer totally

demolished it.  I would expect they would argue, and

rightfully so, give Lubbock Manufacturing Company

against this wrongdoer the full sum, a million dollars.

You know why? Because it’s fair and I would expect you

To do it, the full hundred percent.  And when you come to

Jimmy, I know it’s difficult for you to give him a

hundred percent fairness but I’m goin gto ask you and

plead with you to do it.

Do you know why its so difficlut to

pay the full hundred percent, as Lubbock would expect

to be paid the full $1 Million for the loss of their

truck, the reason why its so difficult is that you’re

being asked not o look fully and squarly at this pain,

his suffering and his disfigurment and his mental

anguish, his loss of earning capacity and see,

therefore, his total bankruptness, without any

happiness, without any accomplishment, without any hope

ever, ever again.

We’ve visited together, you and I,

three months and more.  Therefore, when I say that the

poor and the sick and the injuured and the downtrodden

are entitled to the ranks under the Consistution and

the law no less than the healty and the wealthy, it

surely comes to you as no surprise, I’ve said it before

and I’m saying it now, the dignity of man restes at the

core of th American consitutional and statutory

values.  Its spirit suffuses every clause and every

legislative act.  Govermnet’s duty is to protect and

cherish that dignity and it’s the moral and the

political force of the whole constitutional and

judical system.  And thje last analysis, though, of all

of this, it meust be said,  you, jurors rue, are a last

refuge of justice.  So, it must be and shall be in this

case through your verdict.

We’re no in spcial issue 255 with

eference to Jimmy inquiring about physical pain and

mental anguish in the past, the physical pan and

mental angish in the future, the loss of earning

capacity in the futre.  You’re also asked about

disfigurment.  You’r also asked about physical

impairment.  Here’s the area for months we’ve told you

we’re going to ask no, and we do, for millions and millions

and million.   Here’s the chart, very

insufficient, but I hope that it will assist  you in

vivid review.

Do you remember Mrs. Garcia, the

neighor, who said one of the terrors of all is the way

the children would stare and stare and stare at Jimmy.

His coach told you, the thing I remember about Jimmy

the most, and I had him for three years, was that he

never, never gave up.  His other coach said Jimmy was

the kind of kid who was always trying treal hard to get

something accomplished.  One of the counselors said he

will never, ever even get to play hooky from school

again because he doesn’t even have the school room.

Mrs. Moreno, in tears, remarked, a

sight you’ll never forget, he’s so horrible looking.

The nurse, Rodriquez, told you there’s no hope for his

rehabilitaion.  Jimmy begged Mr.s Felipe Martinez,

“please don’t let y mother see me.”  Jimmy’s aunt said

Dora has to clean him every day just like he’s a

newborn baby.  Mrs. Perez, a dear friend of the family,

in tears said, “God help his mother have the strenght

to care for him.” He said the whole thing is so hard,

so overwhelming, so very dispairing.

What would it be like to be so

terribly and completely depentent upon someone? You

don’t even have the solitude of the bahroom alone.

You can’t brush your teeth.  You can’t feed yourself.

What would it be like when you know you’ve already had

two horrible Christmases and you have one coming up in

just a few days and you know each day things only get

worse and blacker with each suceeding Christmas, each

Christmas worse than the last.

How desperate does the situation

become when you’re so young and the explanations are so

difficult when you’ve had the kind of pain Dr. Knudson

{phonetic} descibes telling you, as she did, I know

what the pain is, I’ve been burned and my children have

been burned.  I know what Jimmy is going trough.

Do you remember her children as they sat before you when

she testified how burned and anguised they were years

after the event? Do you remember her saying, I just

went through four months of treatment.  The clorox bath

is so bad, you sceram and scream and scream.  She said

threre’s no pain lik a burn pain.  She warns you and

reminded you, jurors, there’s a difference between pain

and mental anguish.  She said you have the pain of the

burn and that’s going to stay with you.  You’re not

able to buy or take drus enough to abate the pain

because and excess would kill you.  You have to,

therefore, learn to live tith pain constantly.  Its

your consant visiot, she said.  But she said, here’s

the problem with Jimmy.  He hasn’t stopped growing, but

the scares are never going to allow him to reach his

true growth.  This is a hideous recongition but a fact.

She said, additionally, the problem is Jimmy’s the same

inside but outside he’s so terribly different.  In your

face, she said, is how people percieive you and they

perceive Jimmy as a monster.  Jimmy’s former friends

are all gone.  Understandably,  they’re making new

friends.  But how many new friends do you think ever

Jimmy’s goin gto make in the future or kep those that

he had in the  past? Mental anguish, she said, is what

you think, Mental anguish, the doctor said, is never

being able to accommodate to society.  I’ll never have,

she sayd, in Jimmy’s mind, anyone other than my present

friends and they’re going their separate ways, my brother; my

sister; my friend George; my mother, Dora

and Manuel, this is mental anguish as distinguished

from pain.

What we have tried to do is to assist

you in the frankfully responsible task, to paint

pictures for you, to ive you ideas, and ask you to do

something you’ve never done before in your whole life.

That’s to face the pain, to face the agony and the

anguish that Jimmy’s undergoing right now and will the

rest of his life as you deliberatre on the size of your

verdict.  If you don’t do it, then no one at anytime

anywhere is goin gto be able to give him the fair

consideration that he’s due.  If he’s going to get a

fair trial before a jury of  his peers because you must

look squarely at his pain.

Now, let’s look at the chart of

medical expenses.  We know that Jimy was at the Santa

Rosa Hospital cirtically ill for 81 days.  During the

entire time, there was little or no hope he would

survive.  Dr. Larson described him as the worst burn

case in the history of his three decades of treating

desperatley burned children.  Dr. Knudson said when

they borught him in to the Galveston vurn clinic, he was,

indeed, dying.  We know the sum of his bills is listed

on the charts. Santa Rosa Hospital was $37,344.  We

know this involved all of the areas that we’ve marked

for you on the chart, including the treacheotomies, the

skin graft from waist line to the face, the constant

release of the joint contractures.  You’ve already had

the doctor bills before you.  You know generally what

they embrace.  Really, we have no difficulty with the

fact that the past medical expenses, including the

Shriner Burn Clinic, 398 days, 23 operations, is a

total of $160,000.  This combined with the Santa Rosa

treatment would mean that the toatl past medical is

$192,852.

You know that the medical testimony is

the difficulty with Jimmy’s graft is the only skin he’s

got is on the top of his head and, therefore, as a skin

donor site, it’s very difficult and very sparse.  We

know he will have a great deal of treatment in the

future, witout limit, really depending upon how much

more physical pain can he bear.

Well, then what is the future meical

expense for Jimmy?  Dr. Larson said there’s no doubt

Jimmy should have one or two operations a year for the

balance of his life, provided he can stand it.  Each

operation will entail very dreadful pain and sometimes

the memory of the pain is such he simply may not be

able to foce himself to to tolerate another operation.

When each operation is done, Dr. larson said you’re

looking at $1,000for the surgery, $200 a day in the

hospital, and two weeks in the hospital and

anesthsiology at the rate of $250 a day.  In the way

of operation costs, you are, therefore, looking at the

sum of $4,550 per operation. If Jimmy had operations

such as these, he would be spending in excess of $9100

a year, twice a year.  Therefore, such costs right now

would be $429,300 in future medical.  We know, of

course that such medical costs are escalating under

the evidence at the reate of 14 percent each year.  If

that’s true, that $429,300 would be well over

$3 million in future medical costs.  We’re being

conservative, as you know, because, obviously, we want

both a fair and realisitic figure for Jimmy who’s living

in a world of astronomical and overhelming pain,

mental anguish, future hospitalization, and medical

bills so enourmous it’s overhelming and impossible to

comprehend.  We know it.

We’ve already reviewed for you that

which you’re dealing with in this young boy who, among

his many other losses, has no fingers, no hands, no

ears, little in the way of eyesight.  Dr. Larson said,

he is he worst disaster I’ve ever seen, eard, eyes,

lips, testicles, all harmed beyound repair.  One women

described his testicles as large as apples.  He was so

black and so revolting, he pled with her, “don’t let

mother ever see me.”

We’ve already reviewed Jimmy’s 25

operations.  The medical bills have been reviewed and

presented for your consideration.  The attorney for

Lubbock Manuacturing Company, naturally and

understandable, is interested in the conservation of

money in this ause and he will say the economist

exhibit, Dr. Benz {phonetic}, don’t talk in terms of

the 3,524,000, which he said would be he loss of

income, but rather look at the discounted rate of

685,443.  That’s for your consideration and that’s for

your deliberation.  That’s why we gave you all the

facts because we knew you had to apply your conscince

and good judgement to anaylyze those facts and do the

right thing under the circumstances.  I’m going to be

frank with you at this stage.  I know my colleagues did

not come to you with this kind of arithmetic or this

mind-boggling amount of dollars and I know that it,

therefore, is difficult to know wheather I’m addressing

as it should be or they.  We’ve given you, however, the

best gauges and guidelines we know in the way of rules

for guidance and protection.

As to Jimmy’s loss of income, that’s

up to you.  Perhaps, you may think a fair figure is in

the middle between $689,000 and 3 and a half million.

That’s why we gave you what we regareded as the

outstanding expert in the United States.  We knew you

needed it.  That’s why we brought him, great expense.

Loss of earning capacit, you know that’s zero, he will

never, never work as he wil lnever, never play, as he

will never, never dream.  And, so, that’s a matter for

your consideration also because you’re talking of a

young man who had a half centruy, freams, aspirations,

and a useful life.

We bring you the charts analyzing all

the remarks that you’ve heard, Dr. Larson, Dr. Knudson,

Dr. Kyker, the medical bills, the loss of

income.  This gives you the area of $4,152,997.  The

remarks of the nurses and the neighbors and the

teachers and the coasches and the friends, the mother,

the aunt, the father, the brother, and the sister

add up, don’t they, to monumental damages?

Exemplary damages, here again, if

there were ever a case that cried out for exemplary

damages in order that lessons be taught for the

terrible defects, the horrible manufacture, this is it.

Once again, through, we think the threshold should

always be on the actual damages.  Exemplary damages,

again, in the area of $25,000 with millions and millions

and millions of dollars going to actual

damages for Jimmy.

My friends and jurors ture, we’ve now

made the full circle.  Very difficult thing is what

figure? I’ve said millions and millions and millions

but what figure? Well, obviously, you can talk in

terms of 10 million or 15 million or 20 million.  We’ve

got the summary which we think is fair right on this

chart.  We think the far sum is a total of

$23,214,000.  Now, you may feel differently as to the

divisions of pain and mental suffereing to date and in

the future, the loss of earning capacity, but we don’t

think you’ll ever disagree that the totalk figure is

fair.  That’s the arithmetic.  Consideration is how

much pain is there in being burned over 90 percent of

your body? The only place he wasn’t burned was on the

soles of his feet and where his belt was located.  How

much pain is it to go through that Clorox bath every

day, scream and scream and scream until exhaustion and

unconsciousness of a sort arise.  How much pain is it

everyday to have the exercise and every day when you’re

forced to turn over when the pain becomes so

unbearable? How much pain is it when you’r told a s a

younster of 14, we coulnd’t save your fingers, we

couldn’t save your hand, and all of the other membes

of his body that couldn’t be saved,  You have to look

deeply, seriously, and soberly at the tremendous losses

and then put on a figure.  Your job, I suppose, isn’t

an enviable one but in many respects, in many ways, it

really is.  It’s a magnificient opportunity to right a

horrible worng.

Perhaps, the last and the greatest

story that I can I’ve you to assist in moments of

solemn deliberation is that of the great Theodore

Roosevelt when he said many times in his lifetime: It

isn’t the critic that counts who criticizes the strong

man that stumbles or the doer of deeds who didn’t do

enough; it’s the fellow in the pit whose face is

scared and marred and in tears; it’s the man who

associates himself with worthy causes and fails; it is

that man who will never be in the company of people

that knew neither defeat nor victory.

That’s the kind of attitude you mush

embrace.  That’s the kind of opportunity that you have.

That’s the kind of proud memory you will possess the

rest of your life after you have brought in an

appropriate and adequate verdict for this young man.

There’s no way, is there, to describe a yound man age

14 who never had a chance, a young man whose sun is

setting before it ever came up, or whose moon will

never have any light, or whose star has already come

out from the heavens.  Don’t we really say in the final

analysis, its’s only you, jururs true, who can bring his

Christmas message.  It’s only you who can write in the

appropriate greeting.

I know and his family knows we’ve

disrupted your lives terribly and that probalby we’ve

visited with you too long but you know and I know your

disruption will end very shortly after your

deliberation.  Hopefully, you’ll go back to full active and

happy lives. Jimmy and  his family never,

never more, never, never whole, a tragedy never, never

to be undone.

Two thousand years ago, St. Paul left

a message which is th last tought I leave you with

references to your verdict.  He said to the

Colossians: Who is this man, Jesus? Look to him.  He

not only tells you who God is; he tells you what man is

meant to be.

George Garcia, Jimmy’s closest friend

who couldn’t bear to look at him and, yet, you got to

look at George, handosme and bright and hoepful, and

you were able to see Jimmy’s contemporoarty and able to

see what George is and what George is going to be.

George in his magnificent way told you what Jimmy was

and what Jimmy was meant to be.  George’s brief

recitation tells you the destruction of a marvelous

human being caused by the defective design and

manufacture by Lubbock Manufacturing Company.

Dark and dreadful history

has been witten by reason of this tragedy and it is only you

who can now write a glorious conclusion to this fatally

wounded family.  Thank you very much.