REPTILE© AUTOPSY: REPTILE© SUPERSTAR DICK SWIFT

By: MICHAEL PETERSON, KEENAN LAW FIRM

This month’s Reptile^© Superstar is Dick Swift. Swift received his Bachelor’s degree from The University of Texas at Austin and his Juris Doctorate from South Texas College of Law. Swift grew up in a family of lawyers—his grandfather was a lawyer and a sitting judge, and his father was a litigator. As a young man just out of law school, Swift was drawn to the courtroom. Although his first post-law school job was working with his father as a criminal defense attorney, he soon transitioned to a personal injury practice. When his father retired 20 years later, Swift started his own firm, The Law Offices of Dick Swift.

Outside of law, Swift served as a State Representative in the Texas State Legislature from 1988 to 1991. He taught the First Christian Church’s E.V. Swift Men’s Bible Class, named for his grandfather, for ten years; and he also sponsors a “Little Dribblers” basketball team each year.  His passion—his Labrador retrievers and the duck hunts he guides during the season.

Introduction to Reptile^©:

When Swift read the Reptile^© book in 2009, he was overwhelmed by the amount of new information he learned. Wanting to know more, he attended the MIST seminar in Atlanta. That seminar sparked Swift’s journey with the Reptile^© and; from then on, he has utilized the Reptile in all of his cases. Swift’s favorite Reptile^© tool is the safety rules. According to Swift, when properly framed with statistics, the safety rules are the only thing a jury should need to understand everything about a case. Since the case reviewed here, Swift has attended the KBC Rules College and has realized that his journey with the Reptile^© is just beginning.

Facts of the Case:

Swift’s 59-year-old client worked as a Construction Superintendent for a medium-sized company. On the day of the case incident, his client left for lunch and, while stopped at a red light, the Defendant’s car collided into the back of his client’s vehicle, going 10-15 mph.  Swift’s client chose to return to work following the incident instead of going to a hospital.  While at work, Swift’s client began experiencing back pain; but, ultimately, he waited 24 days before he saw his family physician. When his pain continued, he was referred to a specialist, who determined that the plaintiff’s MRI showed he had a herniated disc at L2 and L3.

Despite his pain, Swift’s client continued to go to work. Eventually, however, the pain became so bothersome that he had to receive multiple epidural steroid injections.

As time progressed, Swift’s client’s injuries limited his ability to work to the point that his employer was forced to let him go—Swift’s client chose to retire early at the age of 62. Liability was not in dispute, as the Defendant pled guilty to failure to control her speed. The only issue at trial was causation (minor impact) and damages. Prior to this crash, Swift’s client had undergone two neck and knee surgeries and had been taking hydrocodone medication for the past five years.

The Defense argued that Swift’s client suffered from degenerative back disease prior to the wreck. They also claimed that his client was malingering, and only suing the Defendant because he needed retirement money. The Defense hired an IME doctor to testify that Swift’s client suffered only a back strain as a result of the incident, and that his symptoms should subside in 3-6 months. The Defense offered $750 prior to trial.

Pre-Trial Reptile^©:

A huge component in Swift’s case was his client’s Major Truths.—Any time a client’s credibility is at issue, especially in a pre-existing case, developing the client’s Major Truths is crucial to winning the case.—To assist him in creating his Major Truths, Swift showed his client the MRI of his injuries, illustrating the herniated disc and the location of his pain. Swift also showed him a picture of the underside of the vehicle’s broken support post. Swift instructed his client to use the photo to focus on how the wreck occurred and the MRI as proof of his injury.

His Major Truths were as follows:

1. I am not the cause of my injuries.
2. I did not have a minor collision.
3. My injuries are painful, and I am forced to struggle with them every day.
4. My injuries took me out of the job force.
5. My injuries prevent me from maintaining my home and farm.
6. My injuries forced me to sell my home and farm.

Swift requested the code for IME doctor prior to his deposition. After he received the code, Swift knew that it would have a powerful impact on his case. The Defense’s case rested with their IME doctor, so Swift knew that if he could simply place the IME doctor on-code then his client would win the case.

The code for IME went as follows:

Independent Medical Examiner:

• Whore—only doing it for the money
• Was not an Eye Witness
• Partisan
• Advocate for one side

Reptiling the Case:

Voir Dire:

Swift used his voir dire to connect the jury with the concept of safety rules. He began by asking the venire, “How many of you have a driver’s license?” Everyone raised their hand. He then asked, “What do we have to do to get a driver’s license?” The venire responded by saying that you must show the examiner that you can follow the rules of the road. Swift followed up by asking, “What happens if you don’t follow the rules?”

To that question, one potential juror responded, “You might be killed!” Swift then asked whether they expected others to follow the rules of the road when they are driving. They answered, “Yes.” And one juror even said, “There are too many crazy drivers on the road, and it’s important that everyone drive defensively because most drivers do not have insurance.” Swift noticed several jurors nodding their head in agreement.

Since this was an underinsured motorist case, he then asked who among them had uninsured motorist coverage. To Swift’s surprise—85% of the panel said they did.

Swift also wanted to test the amount of evidence the jurors believed would be necessary to prove damages. Swift discussed the preponderance of evidence with the jurors and then coupled it with damages. They all agreed they could award $10,000. To reveal the rats, Swift asked whether or not it would require more than a preponderance of evidence to award $100,000 versus $10,000. Nine individuals on the venire stated that even if he satisfied the burden of proof they would need more proof to award his client $100,000. The Judge then jumped in, demanding that Swift add the usual “Can You Follow the Law?” admonition, and Swift did so, but several of the nine jurors said—“That’s a bad law”. Swift effectively used this coupling technique as a rat killer and eliminated those individuals from his jury.

The Case Rules:

1. A driver is never allowed to needlessly endanger the public.
2. If a driver does so and, as a result, injures someone—that driver is responsible for the harm.
3. A driver must control the speed of their vehicle. If a driver does not and, as a result, injures someone—that driver is responsible for the harm.
4. If that driver has insufficient car insurance to cover the harms and losses that he caused, and the victim has purchased underinsured motorist coverage—the victim’s car insurance company is responsible for the harms and losses.

Opening:

Swift followed the Reptile^© Opening template. He paid careful attention on the undermining portion. He explained to the jury that he had to determine if his client was at fault. He told the jury that he received his answer in the form of the defendant’s guilty plea. He then had to determine whether his client’s injuries were a result of the crash. The plaintiff’s treating physician; who had reported that his client had a history of high blood pressure, neck surgery, knee surgery, and arthritis consistent with his age—but no prior back problems—; answered this question.

Lastly, Swift had to determine whether his client was malingering, and simply trying to get money for retirement. Swift explained that his client never planned to retire, evidenced by the fact that he continued to work after the wreck. Moreover, his employer had to fire him in order to get the plaintiff to the point at which he chose to retire.

Swift placed his client on the stand first and found his client’s testimony to be strong and confident. Swift’s client simply expressed each of his Major Truths to the jury. He did not exaggerate or seek sympathy. He simply explained that he was not responsible for the wreck, and illustrated how the injuries he suffered were burdensome and debilitating to the life he led prior to the wreck. His demeanor and character were easily relatable to the jury and they viewed him as a fellow “Bubba.”

The next person to take the stand was Swift’s client’s family doctor. The client’s treating physician testified that the client had a history of high blood pressure, neck surgery and neck pain; but no prior history of back issues. The Defense insinuated during the doctor’s cross that the client’s 24 day wait to see his physician proved that his injury was minor.

In response to this argument, Swift’s client’s treating physician testified that it was not surprising for his client to wait 24 days before coming to the doctor. He acknowledged that his client was suspicious of hospitals and even doctors. He explained to the jury that the client once had bronchitis that he let develop into pneumonia simply because he did not want to go to a hospital. Swift’s client’s treating physician was certain that his client’s symptoms were present due to the wreck, because his medical history showed no history of prior back pain.

The workers’ compensation doctor took the stand next. The workers’ compensation doctor stated that he had reviewed the client’s records and identified his major injuries.  He testified that the plaintiff’s L2-L3 disc had been centrally herniated due to the force of the crash. He believed the injury created permanent damage, which the plaintiff would not recover from. He also drew pictures of the client’s spine, discs and nerves, so that the jury could clearly see the mechanism of injury.

The next and last person to take the stand was the Defense’s IME doctor. Swift wanted to use his cross to polarize that doctor’s statements with those of his client’s treating physician and place the IME on code. Swift began his cross by having the IME testify that 99% percent of his trial testimony was on the behalf of the Defense. Swift then asked the IME whether he had opportunity to examine the plaintiff and conduct tests to confirm his opinions. IME admitted that he never examined Swift’s client. These questions allowed Swift to show that the IME was a hired gun.

These questions invited the jury to ignore the IME’s opinion that Swift’s client did not suffer a herniated disc, but simply had a back sprain. Furthermore, the IME testified that the injuries weren’t permanent and should have healed on their own in a few months. The IME stated that the client did not need surgery and was trying milk the case by requesting medical treatment outside of physical therapy and pain pills. Each new statement by the IME placed him even more on code; however, the IME’s final statement pushed it over the top—he testified that 50% of people with a back sprain get well in short order, 40% take a little longer, and 10%, will never recover. Swift followed up by asking, “Would you say that permanent back pain simply comes out of nowhere or does it have a cause?”  The IME doctor responded, “I don’t know, but I believe it has something to do with how we evolve from reptiles.” Those words made Swift chuckle and firmly placed the IME on code in the jury’s eyes.

Closing:

During closing, Swift brought attention back to his safety rule. He reminded the jury about their conversation during voir dire and about the potential dangers that can occur when we fail to follow the rules of the road.  He explained to the jury that anyone could have been in that car on that day and that any injury could have resulted from the crash.

In closing, the Defense attorney made a blistering attack on Swift’s client’s credibility and his injuries. In response, Swift challenged the jury to make a statement with their verdict about what they would allow in their community, arguing:

“How many of you jurors took a physical before you paid your premium for your UIM coverage? Allstate sells UIM insurance to most everybody and knows they are insuring people with pre-existing conditions. Allstate denies these claims if you have a pre-existing condition. You must send a message to Allstate and all other insurance companies that they cannot deny any more claims because someone has a pre-existing condition. If you do not, then they will keep collecting premiums from people just like you—and continue to deny the claims.”

Verdict:

The jury returned with a verdict of $125,000. Swift’s client was ecstatic. Swift credits the Reptile^© with his success. According to Swift, the Reptile^© adds a new passion for the practice of law. Not only does it refine his ability to discern how the jury will react to the evidence he presents—it also cultivates the bond between the facts of his case, Bubba’s role in the community, and closure for his client. By focusing on his safety rules, placing the IME on code, and utilizing his client’s Major Truths, Swift was able to awaken the Reptile^© in each juror. By doing so, Swift gained an impressive verdict for his client and demonstrated just how powerful the Reptile^© can be in any case.