By: MICHAEL PETERSON, KEENAN LAW FIRM
Note from Papa Don:
I first met Matt at the Costa Rica Advanced Reptile© Seminar. I was settled down in the room I always get which has a deck overlooking the water that is perfect for stogies. The deck connected to another room that serendipitously was Matt’s and his lovely wife. So I got to spend some private time with him and noted that he is not your aggressive plaintiff’s lawyer, but a soft soul with nice charisma. Matt worked hard on the Reptile© learning curve such that he was made one of the co-moderators on the important flora list serve, where he’s done a great job.
Now for Matt’s autopsy:
This month’s Reptile© Superstar is Matt Powell. Matt Powell received his Bachelor’s degree from the University of Central Florida and his Juris Doctorate from Florida State College of Law. Matt practiced insurance defense for six months, and then made the decision to pursue a career in plaintiff’s personal injury. Matt’s law firm, Powell & Espat, specializes in MVC, negligent security, med mal, and product liability cases.
Outside of the law, Matt is passionate about his State’s National Historic Landmarks. In fact, his law firm is located in one of Florida’s National Historic Landmark buildings. Matt routinely raises money every year in an effort to help renovate the historic landmarks in the community. Matt is also starting a new charitable organization called, “For The Kids.” This organization will seek to help raise money to provide kids with cars seats, bike helmets, and safety awareness material.
Introduction to Reptile©:
Matt learned about the Reptile©, three years ago at an Advanced Reptile© seminar in Costa Rica, where he met Don and David, who inspired him to transform his practice. Matt can proudly boast that every lawyer and paralegal in his firm has attended a Reptile© seminar.
Matt believes that the Reptile© has provided him with a solid framework that he can use in every case. His favorite Reptile© tool is spreading the tentacles of danger. According to Matt, the STD is subtle, but effective. It allows you to position your case in the proper context, so that the jury can make an honest determination of the facts.
Facts of the Case:
Matt received this case from another attorney about 4 months before trial. His client was a resident of Camden Bay Point Apartments. Camden is one of the largest companies in the US that builds, manages, and rents out apartments. Matt’s client, Angel, was 10 years old at the time. While he and his friend were walking back from the lake, they noticed that the door to the gym was slightly open. The apartment complex considered the gym to be an “Adults Only” area. The manager of the apartment complex provided adult residents with an amenity key for them to use to open the gym door. That day the gym door was propped open with a cement bucket.
Matt’s client and his friend went inside the gym and began goofing around. They found a ball about the size of a soccer ball, and traveled over to a treadmill. They turned the treadmill on, threw the ball onto the belt, and let it bounce back to them. They continued this exercise until they got the treadmill going full speed. Unfortunately, they dropped the ball and the treadmill sucked the ball underneath. When Angel reached down to get the ball and the force of the treadmill yanks his hand underneath treadmill.
Matt’s client broke both his ulna and radius bones in his right arm, and suffered from second degree burns. The treadmill pulled his arm until his ear hit the edge of the moving platform. At this point, his friend stops the treadmill by pulling on the emergency lanyard. The child’s Mother took her son to the hospital, where he remained for 10 days. His medical bills amounted to 25K. Matt chose to waive the medical bills. Matt’s client had ADHD, and his school had already held him back a grade. Matt knew that the only jobs that would be available to him would be those jobs that focus on physical labor.
In preparation for trial, Matt hired a vocational expert to assess his client’s loss of earning capacity. The expert found the scaring would cause a loss of earning capacity of 10% to 20%, based upon his client’s inability to work outside in the sun or in hot environments. Furthermore, the expert suggested that Matt’s client would not likely progress beyond a high school diploma.
The defense classified the case as an attractive nuisance case. They argued that Matt’s client was old enough to know not to touch the treadmill. It is important to note that an attractive nuisance case would eliminate the comparative negligence standard and make the case a pure contributory negligence case. Matt chose to argue for attractive nuisance. Before trial, the defense offered $150,000 with a $250,000 demand. The plaintiff rejected the defenses’ offer.
Pre Trial Reptile©:
Despite receiving the case late, Matt understood the importance of witness prep. Matt used witness prep to focus on the Major Truths of the client’s mother. The mother felt guilty that she was not able to monitor her child during this incident. Matt wanted to prepare her for the defense’s questions that would challenge her ability to supervise her child. Her first major truth was that she picked this apartment, because she believed the managers at the apartment were responsible.
The apartment managers assured her that they would keep the gym door locked, and it would only become accessible if an individual possessed an amenity key. She had to come to terms with the fact that the apartment complex betrayed her, because they chose not to follow their own policy and procedures. Secondly, she had to come to grips with the fact that there was no way that she could monitor her son all the time. These Major Truths were crucial to her confidence and effectiveness on the stand.
Reptiling© the case:
Matt began his voir dire with passion questions. Matt enjoys using passion questions to earn the jury’s trust. Next, he focused on the jury’s perceptions of the curiosity of kids. He found that most jurors believe that kids will be kids, and thus it is an adult’s job to ensure that the kid cannot place himself in danger. Then Matt addressed his client’s second-degree burns. He asked the venire a WWDYL question that challenged the jury to consider whether they felt comfortable giving money to take care of his client’s scar, despite the fact that their verdict could not remove the scarring from the child’s arm. Matt found this to be an effective rat-killing question that narrowed down the venire.
Matt discovered through voir dire how relatable this case would be to this jury. Every juror on the jury pool, either lived in, or had lived in an apartment. This made their Reptile© more susceptible to Matt’s opening. Matt used his opening to inform the jury of the story, to explain who he was suing and why, to undermine the defenses, explain the harms and losses, and to implant the code for apartment complex.
Matt developed four safety rules for his case:
- Apartment complexes that rent to families know that children are curious and want to explore everything and the complex must be mindful of children’s curiosity and desire to play in areas that they should not play in, so that kids do not get hurt.
- Apartment management of complexes that offer amenities that are dangerous and not suitable for children must keep children away from these dangerous things.
- When an apartment complex performs repairs, maintenance, and remodeling in their complex, they must keep the doors locked to the gym areas when they are away from the job site, even when they leave the area for just a few minutes.
- Managers of Apartment Complexes must communicate with their employees to make sure that everyone knows how important it is to keep children out of dangerous common areas.
This case was all about the system failure and betrayal. Matt called the plaintiff’s mother first, to establish the story and explain why she felt betrayed. The client’s mother was very comfortable on the stand, and constantly referred to her Major Truths. On the stand, she came across as a very good mother who was very responsible. She explained that she wishes she could have protected her son, but she understood that she could not be with her son at all times.
Matt understood that the jury expected their landlords to take care of their safety in all areas on their premises. They also expect that if an apartment complex cannot prevent the harm, then they should at least issue warnings through signage or otherwise. The mother’s testimony flipped their expectations on its head, because it revealed that not only did the apartment complex fail to prevent, but it also encouraged harmful behavior by allowing her child access to a dangerous and unsupervised environment. Matt’s ability to relate the mother’s testimony to the expectations of the jury, added power to the betrayal and took the apartment complex off code.
She also testified to the client’s damages. She mentioned how her son winces and squirms whenever she had to change his bandages. She went into detail about the pain he feels whenever he is lifting his arm or taking showers. She discussed how her son would describe the pain as burning matches. Moreover, she feared the injury to his arm would lead to humiliation and social awkwardness around other children during the summer months. Matt found the more she stuck to her Major Truths the more off code she became to the jury.
Matt called his client next. Matt’s client presented himself as honest, confident, and self-assured. His honesty was certainly present during cross-examination. During cross, the defense got him to admit that this was not the first time that he had seen a treadmill. The client explained that when he was younger, he would come across treadmills, and be utterly afraid of them.
Furthermore, he explained how careful he was when he reached down to get the ball from underneath the treadmill. It was the defense’s plan to show that Matt’s client knew the treadmill was dangerous. They wanted to show that the treadmill did not serve as an attractive nuisance to Matt’s client, because he was able to appreciate the level of harm presented by the treadmill. Matt countered this argument by suggesting that if he truly appreciated the danger, then he would have turned off the treadmill, rather than attempt to retrieve a ball from under an active treadmill.
Matt placed his client’s friend on the stand, to explain why the gym was open on the day of the injury. Matt took a photo of the gym after the incident. The photo showed that there was construction going on around the area of the gym. Matt showed the photo to his client’s friend. The friend testified that he had never seen the photo; however, he confirmed that the area around the gym looked the same on the day in question.
His testimony provided credibility as to why the gym door was propped open with a five-gallon cement bucket. Matt used the friend’s testimony during his closing to show how the apartment complex was off code. Matt understood that construction around the gym was primarily for the tenant’s benefit; however, all benefit is lost when safety is the cost. He argued that a landlord must complete their construction with safety in mind. The second you ignore your policies is the moment you are disregarding the safety your tenants. Matt knew he was on the right track as he could see the jury nodding their heads along with his argument.
Matt cross-examined the apartment’s maintenance supervisor next. The supervisor admitted the apartment complex was doing construction. Matt asked him whether there were cheap alternatives to prevent people from opening the gym doors. The supervisor could not think of any, so Matt suggested the use of a pool alarm. A simple $25 option that would sound an alarm whenever someone left the gym door open. The supervisor had no disagreements with Matt’s suggestion. Furthermore, the supervisor agreed that they failed to uphold their policy, which held that the apartment complex would only allow access to the gym to adult residents who possessed an amenity key.
The manager of the apartment could not make it to trial, so Matt played a 90-minute video of her deposition. During the deposition, Matt’s focus was to have her reveal the system failure and to admit that she had betrayed his client. The manager evaded every question Matt asked her regarding the safety rules. Matt asked her about the apartment’s policy and procedures, to which the manager agreed that the gym door was to remain locked for all those who did not possess an amenity key. After establishing the negligent act, Matt went to the heart of the system failure by questioning the safety mechanism she had in place to shield children from harm when a situation like this arises. Matt asked her whether she instructed her maintenance workers to look out and report about whether children were getting in the gym. She said, “No.”
He asked whether she ever put out a bulletin to inform the residents that they would be leaving the gym door open, so that parents could take it upon themselves to ensure that their children did not enter the gym. She said “No.” He asked whether she trained the maintenance workers on gym safety. She said “No.” Lastly, Matt asked whether she supervised the maintenance workers to ensure that they followed the policies and the procedures of the apartment complex. Again, the apartment manager said, “No.” At this point, the apartment complex was completely off code, and the jury was upset. The jury could not believe that an apartment complex could drop the ball in so many areas of safety.
Lastly, Matt called his vocational expert, economist, and medical experts to the stand. Matt knew that future earnings would be a hard element to prove. The vocational expert testified to the fact that his client would no longer be able to work outside or in a hot environment. Coupling the limitations of his work condition with the limitations of his education, he argued that Matt’s client would have a bleak future in the labor force. Matt’s next witness was his medical expert, the pediatric burn doctor. The jury respected him, because he approached his testimony as a teacher, by simplifying big words and making analogies to help the jury understand the severity of his client’s injuries.
The defense called their CME orthopedic surgeon who testified that the child had no loss of function to his shoulder, elbow, wrist, or hand, and therefore he was fine and would have no future complications in life from the broken bones. Matt’s cross-examination of the defense witness took a lot of time because Matt displayed to the jury several x-rays of his client’s broken bones. In addition, he had the defense witness show the jury where each of the fractures were. Then Matt showed the post surgery x-rays that showed the two 14 inch nails inserted in the bones. Matt had the defense expert walk the jury through the surgery and explain step-by-step what was done to the child’s arm in surgery.
The defense’s expert went into detail about how the fracture tore the client’s muscle tissue in his arm. Then the surgeon explained how they insert nails into his bones, cutting his skin, drilling holes into his bones, and then hammering each nail through the bone using a hammer. At this point, the jury’s eyes were as big as silver dollars. Matt knew that he successfully swift-boated the witness when everyone in the courtroom was wondering which party called the ortho expert to the stand. According to Matt, every attorney should avoid cross-examining the defense if you can ingratiate him to your side.
Closing:
Matt contributes most of his approach during closing to Don’s blog article on “System” (will appear in the upcoming Keenan Edge 3). According to Matt, as he was heading to the courtroom for closing arguments, he decided to log on to Don’s Friday blog, and it was about system failures. Don’s article proved to be the perfect message at the perfect time. During his closing, Matt reviewed the manger and employee’s testimony, which highlighted how Camden failed to train, supervise, and warn tenants about the gym. Moreover, they had no internal way of communicating to each other when there was a problem. Matt also used the system failure to spread the tentacles of danger.
He brought the jury back to the gym, and had the jury think about the myriad of other dangerous equipment that could have caused the children harm. Matt reminded the jury that his client is a child. He referred to them as the most vulnerable people in our society. Matt revisited the responses he received in voir dire; by reminding the jury, that our expectation is that kids will be kids. Matt argued that it is imperative for families to be able to trust corporations to follow their policies, which will keep their families and themselves safe.
In this case, the corporation betrayed their trust and children were injured. Matt also addressed the issue of who should take the risk. He asked rhetorically, “Should the person who hurts someone take the risk of future medicals or does the person who gets hurt have to be burdened with that risk?” Matt had already addressed this issue in voir dire, so in closing, he was simply reminding them of the commitments they made at the beginning of trial.
Verdict:
The jury returned with a verdict for the plaintiff for $2,686,370.00. According to Matt, he learned to trust and fully embrace the Reptile©. Matt realizes that there is never a perfect trial, but the Reptile© makes them better. At the end of the trial, the bailiff approached Matt and said that he won the case because he picked a good jury. Matt attributes his success in this case to his voir dire, his safety rules, taking the apartment complex off code, illustrating the betrayal of his client, and outlining the system failure. Matt left this trial with not only a win, but also stronger belief in the power of the Reptile©.