By: MICHAEL PETERSON, KEENAN LAW FIRM
This month’s Reptile© Superstar is Gustavo Alzugaray. Gustavo practices plaintiff’s personal injury law at Finkelstein & Partners, LLP. Gustavo’s firm focuses on med mal, product liability and MVC cases.
Outside of the law, Gustavo participates in a military outreach program and engages in clothing drives for the needy. Gustavo enjoys spending time with his daughter, and using her as a sounding board to estimate Bubba’s reactions at trial.
Introduction to Reptile©:
The Reptile© method is a mandatory practice at the Finkelstein Firm. Initially, Gustavo had a tough time believing in the Reptile© system; however, after attending his first Reptile© seminar, he realized how wrong he was about the Reptile©. After the seminar, Gustavo was so excited about the Reptile© that he took all of the information that he learned and used it in his next deposition. According to Gustavo, the defense attorneys had no idea what to do, or how to handle the questions he was asking their client. This resulted in many Reptilian questions being answered with very few objections.
According to Gustavo, not only did the Reptile© shorten the deposition process, it also left an impactful imprint on the defense attorneys and, ultimately, the case. Gustavo firmly believes that from depositions to closing, the Reptile© system empowers the jury to return the right verdict.
Facts of the Case:
This case involved a three-car crash at an intersection. The defendant had a stop sign. The intersecting roadway had no traffic control device. The defendant testified that she came to a complete stop, looked both ways, and saw no oncoming cars. The defendant drove into the intersection and immediately crashed into the plaintiff’s car, which was traveling on the intersecting roadway. The defendant’s car continued through the intersection, and then came to a stop after crashing head on into a car that was stopped at the stop sign in the oncoming lane. Heavy damage was sustained by all three cars.
The plaintiff had dropped his daughter off at work just moments before the crash. The sound of the impact between the cars was so loud that the plaintiff’s daughter heard it, and ran up the street. She found her dad in his car, dazed, with the air bags deployed. An ambulance arrived at the scene, and took the defendant to the hospital. The plaintiff remained at the scene, waiting for his wife to arrive to take him to the hospital. At the hospital, X-rays were taken and the plaintiff was diagnosed with a soft tissue injury to his wrist and shoulder. He was referred to an orthopedic doctor and upon follow-up, MRIs of his shoulder and wrist positively showed tears and ligament injuries.
The defendant set forth both liability and threshold defenses. They argued that the plaintiff failed to keep a proper lookout and should have seen the defendant’s car entering the intersection. They further argued that the plaintiff only received four months of treatment and refused surgery to repair his shoulder and wrist injuries. Based on his return to work and limited treatment, the defense argued his injuries did not meet the threshold requirements necessary to establish a compensable injury.
Gustavo argued that if the defendant had stopped her car at the stop sign, she would have clearly been able to see the plaintiff’s car approaching the intersection. Alternatively, he argued that the facts clearly showed that the defendant never stopped her car before entering the intersection. This was proven by the fact that after the defendant crashed into the plaintiff’s vehicle she continued through the intersection and crashed into another vehicle.
The one hurdle Gustavo had was his client’s damages. He knew it would be hard for the jury to quantify his client’s injuries, due to his limited treatment and work appearances. He figured that the best way to approach this was through his client’s Major Truths.
Pre Trial Reptile©:
Gustavo’s deposition of the defendant was successful; at deposition, the defendant admitted she could have prevented the wreck if she looked or stopped a little while longer. Moreover, the defendant testified that it was reasonable for the plaintiff to believe that any car that had come to a stop at the stop sign would not have proceeded into the intersection unless it was clear and safe to do so.
Using The Keenan Method of Witness Preparation, Gustavo chose to spend a lot of time focusing on his Major Truths. The plaintiff felt bad for the defendant who was an older woman, who had been seriously injured in the crash. According to Gustavo, the plaintiff was a “things happen” type of person, who was simply thankful that no one had died in the crash.
Gustavo was determined to get rid of that attitude, so he had his client focus on his relationship with his young son. At the time of the trial, the plaintiff was a very proud father of a 15-year-old boy, who was very active in sports. He and his son would often practice different sports together, and the plaintiff never missed an opportunity to coach his son and be at his games.
Gustavo had the plaintiff talk about how the crash changed his life, especially with his son. When the crash occurred, his son was about 7-years-old. He shared with Gustavo how the crash and his injuries prevented him from being active in his son’s life; he had to endure watching the other dads throwing and catching a baseball with their kids, while he watched from the sidelines. He carried with him a feeling of guilt. He felt he had let his son down.
He missed a very important time in his son’s life – time that he could never get back. Gustavo helped him understand the truth, which was that the collision was not his fault, but instead the defendant’s fault. Her choice not to follow the safety rules that all drivers must follow in order to keep us all safe was the cause of his loss of time and enjoyment with his son.
REPTILING THE CASE
Voir dire:
Gustavo asked the venire whether any of them were drivers. He asked them about the safety rules they learned when applying for, and obtaining, their driver’s licenses. The venire discussed the safety rules and their importance in society. Gustavo asked them if they expected everyone to follow the rules and the venire told him EVERYONE – from the police to pedestrians – must follow the rules of the road. He asked them why and they replied, “If people don’t follow safety rules, there is chaos; people get hurt, and lives are changed.” When asked whether there were any exceptions to not following the rules, whether you could give someone a pass, there was a unanimous “NO.”
When he gave them Don Keenan’s 2:30 a.m. stop sign scenario (no cars on the road, feeling foolish), the jurors responded by telling him that it did not matter the time or the amount of traffic, the rules are the rules! Gustavo knew he was on his way to setting up his Reptile© case.
Opening:
Just before opening, the defendant conceded liability. Despite the concession, Gustavo began his opening by detailing the safety rules that all drivers must follow in order to keep everyone safe. Defense counsel objected, claiming that liability had been conceded, so to allow safety rules to be discussed would be improper. The court overruled the objection and allowed Gustavo to continue.
Gustavo’s client was a former military man, with a “tough guy” persona. He was a very proud and well-groomed individual. Gustavo had the plaintiff discuss with the jury what he felt, saw, and heard at the scene of the crash. He told the jury about his health before and after the collision. He went on to explain and discuss his treatment, and the fact that the doctors informed him that surgery was his only option. Gustavo’s client told the jury he refused surgery to his wrist, shoulder and knee, because such a procedure would force him out of work anywhere from one to three years. Gustavo’s client was very good at presenting his Major Truths; however, he lacked the vulnerability and connection that Gustavo wanted him to have with the jury.
The only way Gustavo knew how to crack his shell was to have him talk about his relationship with his son. Gustavo asked his client to talk with the jury about how his injuries changed his relationship with his son, and how he was upset that he could not get those years back. Gustavo’s client explained to the jury how he used to help his son practice with his little league team; however, after his shoulder injury he could no longer throw the ball. Anytime he attempted it, he would often have motion and pain issues that led to extreme pain and swelling.
Moreover, while all the other children would have their fathers tossing the ball to them in practice, the injuries forced his son to have to warm-up with other dads, while he watched from the sidelines. Their connection on the baseball field defined much of their relationship and Gustavo encouraged his client to express to the jury how his injuries caused him to miss precious years with his son. Gustavo’s client began tearing up as he expressed his guilt to the jury about these lost years. The jury was able to connect with his client, and his testimony gave the jury another reason to enforce the safety rules in this case.
The plaintiff’s treating physician took the stand next. His physician explained that he could do nothing about the plaintiff’s continued pain, unless the plaintiff decided to undergo surgery. He had informed his client that arthritis would likely set in if he did not get the surgery, which would likely leave him in even worse pain. He also testified that if the plaintiff had the surgeries, he would likely be out of work for the next two years. The physician reiterated to the jury what the plaintiff told him: “As the sole breadwinner for my family, I cannot afford to miss that much time from work, while my family goes hungry.”
The defendant’s DME testified that the plaintiff did not have any orthopedic disability, despite the positive findings on the MRI. He arrived at this diagnosis without having more than half of the plaintiff’s medical records. The DME even stated that he knew the plaintiff’s treating physician, who he believed was a great surgeon. Gustavo asked the DME whether he thought the physician was lying to the jury. The DME said, “No.” The jury simply disregarded him as an on-code expert.
Closing:
Gustavo wanted to use his closing to empower the jury to define what they will (and will not) accept from drivers in the Bronx. He informed them that their verdict would tell everyone whether or not the safety rules that keep everyone safe are, in fact, important. Gustavo also addressed the defendant’s false repentance. He asked the jury whether it was fair for the defendant to refuse accepting responsibility for causing the crash, and then admit fault right before the plaintiff’s opening statement.
Gustavo told this jury that he believed $100,000 for the plaintiff’s past pain and suffering was fair, and $150,000 for future pain/suffering and loss of enjoyment of life was fair as well. He told them, “If you want to give this defendant a pass for the injuries she has caused and the lives she has disrupted, then your verdict will reflect that; however, if safety in your community is important to you – if holding those accountable who violate the safety rules and injure others is important to you – then your verdict will reflect that as well.”
The jury returned with a unanimous verdict in a total amount of $350,000. The judge seemed confused and asked the foreperson, “Are you sure that is your verdict?” to which the foreperson replied, “Absolutely, judge!”
Gustavo has been employing the Reptile© on all of his cases, but this case in particular crystalized for him just how effective it really is! According to Gustavo, the Reptile© has completely changed the way he analyzes and handles his trials: By applying the safety rules using the Keenan Method of Witness Prep, spreading the tentacles of danger, and overcoming the defendant’s stipulated liability. Implementing these techniques helped Gustavo overcome adversity and obstacles, and achieve a truly remarkable verdict.