DEVELOP THE RIGHT ATTITUDE FOR A PLAINTIFF ATTORNEY

Posted on January 30, 2016 by Paul Luvera

Working with other lawyers and teaching them often shows they have the wrong attitude to be a great plaintiff lawyer. What attitude should they have? I think the most basic attitudes involve these concepts to start with.

The first rule of a plaintiff’s practice is to screen the case initially to make certain you are willing to try the case without assuming it will somehow settle without trial so you can earn a fee. The second rule is to prepare every case from the time you accept it  as if it  were going to go to trial without settling. The third rule is that if you end up facing a trial of a case you thought would settle and one you never planned to try, you have the courage to do the best possible job reasonably possible. You spend the time to streamline the case for the greatest jury impact,in the shortest trial time without short changing the client.

As to the first rule of careful screening, we have a professional obligation to assist  people.  We also have an obligation not to file frivolous lawsuits  or  exercise our professional abilities  in ways that are  not merited. Yes, there are instances where  pro bono  services are appropriate. There are also circumstances in which there are compelling  issues  that  justify  our involvement even with questionable issues and there are cases which may have  significant  public  interest plus cases with personal reasons for taking cases we might not ordinarily take. These cases may represent a general exception. But, what good  plaintiff  lawyers  do not do  is  to  accept cases they know they shouldn’t take, but the damages will result in a large fee if it settles.  Nor do good plaintiff lawyers take in cases they don’t like,  or involve clients they  cannot relate to  or are problem clients  even if  there is the potential for a large fee. They do not focus on the potential fee. They focus on the case and their professional evaluations.

The second rule is the one most frequently violated which is: You must  assume every case will have to be tried and will not settle. That means any case that you accept,  you  do so with the full commitment it will have to be tried and will not settle.  If you are not prepared to advance the costs to prepare the case correctly for trial you either shouldn’t accept it or associate a lawyer who can. That means not taking in cases you shouldn’t because you hope they will settle. That also means not accepting plaintiff cases we know we aren’t qualified to handle unless we associate someone who is qualified. But, that also means the selection of the associated lawyer must always be an objective one based upon who is best qualified and never on the basis of the amount of fee you receive. It is legal malpractice to accept a case we aren’t qualified to handle and then attempt to settle it without associating a qualified lawyer out of greed over the fee that would have to be shared.

There are no shortcuts;  no “let’s wait to see if it settles before we do any work” and  no attempts in desperation  to settle cases on the eve of trial because we really didn’t plan on trying this case and always assumed it would settle. All cases must be prepared as if they will have to be tried. Not only do we have to an obligation to our clients  to do the best possible work  reasonably required of us once we’ve accepted the case, the  best  settlements are made  when we negotiate from a position of power fully prepared to try the case.  We are powerful when our case is fully prepared  and  are fully prepared to try it. We are powerless when we’re not prepared to try the case and we are driven to settle it at any cost.

The third rule is the ethical obligation to try the case we didn’t plan on trying in the past possible manner consistent within reasonable ethical obligations. You do that by spending real quality time establishing the key positive and negative case issues. You figure out the most powerful way to present the positive. See for example, Mark Mandell’s book published by Trial Guides about framing issues. He suggests identifying the key issues in the case he calls  “I just can’t get over the fact that…” To determine these issues a focus study is the most accurate way to proceed. Internet focus studies should be considered where time is short. In addition the negative factors that make you reluctant to try the case are very issues you need to be totally truthful about in jury selection before anybody else brings it up. You need to frame these issues in the best possible manner and own them, not try to bury them. You need to streamline the case to put it on as efficiently but as effectively as possible. You need to adopt the right mental attitude, not a “hung dog” approach, but one of positive expectation for a good result.

The reason  most young lawyers  have difficulty  properly  framing  and focusing their cases  is because  they see it  in detail  and as complicated  instead of  from a “big picture” standpoint.  Albert Einstein once: ” if you can’t explain it simply,  you don’t understand it well enough.”  Often this is illustrated  by  how they view information.  for example,  when given a written  description  of a major issue,  their response is to ignore the message and instead focus on “you misspelled  serious.”  They Have been trained in law school  to focus on details.  They see only one tree instead of the forest.

Jurors are asking themselves: ” What is this case all about ?” and “what are they suing for?”  When you ask a young lawyer what his or he case is about, a typical response might be :

” I represent  a 37  your old mother  of two children, ages five and ten . Her husband works at Boeing where he is an engineer. She has shopped at Safeway on Jefferson street in Mount Vernon for five years. On  Thursday, January 1  2015 at 11 AM she  went to the Safeway store. She was shopping for  dinner that night.  She had  walked down several aisles and  had just turned  the corner  when she fell. The store manager was called. She was rushed to the hospital with a broken leg. It was near the strawberry stand where she fell and she had red liquid on her shoe soles. We have sued the store for negligence.”

What’s wrong with that response? It demonstrates a failure to identify the essence of the case from the details of the case. The right answer might be “This is a case for a woman who slipped on something left on the floor while grocery shopping. ”  In short hand, this is a “slip and fall case.” Everything else are details.  When you think about your case , think  about it from a broad viewpoint. The case is not about the details. The case is about  the big issues, the story the jury tells itself about what happened  and  the practical impact of the injuries. Defense lawyers  specialize  in mucking around in details. The more complicated and confused  they make your case,  the greater the chance you will lose it.

Yes, I know you are saying to yourself that you knew all of this, but perhaps you should examine your own practice to see if perhaps you need a refresher on the basics of a plaintiff’s practice. Good luck.

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DAMAGES FOR NEGLIGENTLY CAUSED DEATH

Posted on January 24, 2016 by Paul Luvera

This past week my partners and another friend have been preparing for wrongful death trials. I was asked to contribute some thoughts. Since I’ve collected a few ideas I thought I would share them even though they are not in any particular organized sequence.

Some years back I copied  an article entitled “A Portrait of a Mother” and what follows are some excerpts from that article. I regret that I didn’t keep the source or the author or I would provide it.

A Portrait of a Mother

When we were little, mother was everything to us – the police department, the Board of Education, the department of public works, the recreation commission, the finance department, the court of correction. She was a busy person. The only reason she wasn’t driven out of her mind is because she was a mother with the leadership of Moses, the courage of Daniel, and the patience of Job.

But whether she be 18 or 80, mother is an irreplaceable treasure. None other will ever love you half so well or half so foolishly. None other will be so sure you are right, good and worthy. Of course, sometimes she’s wrong. But God love her for it and keep her forever in his grace.

Here are some phrases and some lines from poetry which have thoughts about death.

  • God didn’t want to be everywhere so he created mothers.
  • A mother’s work is like the railroad tracks, the end seems to be in sight but never is.

From a poem:

“It broke our hearts to lose you, but you did not go alone; a part of us died with you the day God called you home. A million times we’ve needed you, a million times we cried; if tears alone could save you, you would never have died.

Ideas that capture the impact of death:

  • Death is the great emptiness. It is the bottomless pit of pain, loneliness and grief. Death means wet pillows at night and holes in your heart.
  • Drop by drop wears a hole in stone and death minute by minute, day by day, wears a hole in the heart of the survivor

Here are some common phrases that express the magnitude of death:

  1. the kiss of death
  2. it’s a matter of life and death
  3. dead and buried
  4. death is forever

This poem about love dying reflects the pain of death of a loved one:

“The night has a thousand eyes and the day but one; yet the life of right of the bright world dies with the dying sun. The mind has a thousand eyes and the heart but one, yet the light of the whole world dies when love is done.”

Think about analogies that express the great magnitude of death:

  • Suppose there is a room full of priceless paintings and a fire breaks out with a mother in a wheelchair  in the room. What anyone question the choice of saving the paintings  or the mother even if that meant the loss of millions and millions of dollars in valuable paintings? Life is worth more than the most expensive material.
  • What is the policy in the military for the pilot flying a multimillion dollar aircraft and a choice has to be made between trying to see the aircraft or ejecting and saving the life of the pilot? Life over multimillion dollar planes.

The fact is that just as one instrument off key can ruin the entire symphony a death in the family has the same impact. These brief and simple thoughts are examples of the powerful destructive force  of an unnecessary  death. It’s our job  to find  the words to capture this fact.

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HOW TO DO FOCUS STUDIES FOR YOUR CASES CORRECTLY

Posted on January 10, 2016 by Paul Luvera

Over many years of my law practice one of the most valuable things I regularly used was focus studies for my cases. I made a study about conducting them, hired difference jury consultants, with often differing ways of conducting them, and generally spent time learning all I could about the correct way to conduct them for the most valid results. I also learned how too often “vanity” studies  were done by lawyers who thought they knew how to run them and ended up with “false positives” they too often relied upon to their clients determent.  My goal was  to find the best means of using effective ways of getting past the conclusions people expressed to reach what really was their underlying opinions and views. The search was for “gut reactions” that really reflected how they felt rather than the words that often were based upon trying to be politically correct or saying something they thought the lawyers wanted to hear.

I discovered there was and continues to be a great deal of inaccurate descriptions by lawyers and  by consultants about how to correctly conduct focus studies for the most valid results.  There was a lot more misinformation than  helpful information, But, Philip Miller in Nashville and Paul Scoptur of  Wisconsin have written an article in the January 2016 issue of trial magazine “Adjust Your Focus Early” which is as good and as valid as anything I’ve reviewed recently. I think they have done a very good job of accurately outlining the basics for conducting a meaningful focus study and their advice is excellent. Here’s my interpretation of what they have written and I recommend the article to you.

To start with the writers correctly identify the common mistakes many lawyers make:

(1)  They wait too long before making the focus study, instead of conducting it before the case begins to be framed and discovery takes place. You want this information before you began to frame your case and before discovery happens. The authors recommend something that most lawyers fail to do and that is to conduct early focus studies. In fact, focus studies are very helpful in deciding what cases to accept and what cases not to accept. More importantly when done early, they guide the lawyer in how to frame the case which in turn has a direct bearing on how discovery is conducted. If we wait on till after discovery before conducting focus studies we may find that our concentration in  discovery was misplaced and our theories or themes not framed as they should’ve been. Conduct focus studies early in the case.

(2)  They slant the facts and conduct the study favoring the outcome they want. When they get feedback that is negative to their case their reaction is to present more argument in favor of the plaintiff instead of learning from the feedback. Lawyers need to understand that a focus group is not conducted in order to win. It is to gather helpful information.

(3) They provide the focus group their conclusions instead of facts. It is presented to the group as if it were a jury argument. Instead, the less the facts the better. The less favorable the slant presented to the plaintiff the better. The more disclosers of the negative factors about the case the better. Even negative evidence which you know won’t be admitted should be presented because it helps  evaluate how important it is and we have all been surprised during trial when something was admitted  that  had been  excluded.

(4) They rely upon the results of a single focus group. Worse, it is too often a focus group that was presented facts in an incorrect manner and therefore produced an incorrect result. It’s important to use different groups of people for an appropriate demographic mix. Using more than one focus group allows you to do that. Furthermore;, it is wise to divide up issues, like exhibits to be used, issue importance and different tactical approaches by using several focus group for issues that are  presented to a second focus group or to use different focus groups. Trying to test everything with one group usually results in a confused outcome

(5)  They rely upon the focus groups determining the damage value. Focus groups cannot reliably give a dollar verdict because that depends upon so many factors including the quality of the defense lawyer, the rulings of the trial judge, the ability of the plaintiffs lawyers and so on. The most you can hope for is distinguishing between potentially a major damage case from a minor damage case. They can also dentify issues that have dollar value. In that regard, the authors suggest asking the group: “what fact or facts would cause you to award significant damages? What fact or facts would cause you to give less in damages?”

The authors suggest that the following areas should be explored in a discovery focus group study:

  1. What are the norms? That is what do people expect as normal behavior under the circumstances involved?
  2. Does the group find something in the case that they consider important? We are often surprised by what the focus jurors think is important. The study can identify what the jurors think the case is about as well as single out information they think is significant and which may be overlooked  by us otherwise.
  3. Do the jurors find something suspicious and have questions about it? People make decisions by creating stories in their mind about what they think happened. Even when not given sufficient information to know the answer, they commonly “reason” to missing  facts and  create their own story. These focus studies offer a chance to find out what may be concerning them that is not covered in the facts presented. It  may reveal suspicions or concerns they have about the facts that are presented. This can be very helpful to us in presenting our case and deciding what evidence to use.
  4. What questions do they have about the defendant and the plaintiff? Not only is it important to find out what questions the group may have about the defendant or the plaintiff, it is equally important to find out why they have questions. We are often surprised by the questions raised in the minds of people that we think are irrelevant or we haven’t even thought of. The benefit of these studies is to bring out those sorts of unspoken questions. We need to avoid underestimating the importance of these kinds of questions for the jurors and to answer them at trial.
  5. What rules do the jurors come up with on their own and what rules are they comfortable adopting? People apply rules of behavior to conduct they are asked to decide was reasonable or not. While we can propose rules, the people may not think our rules or the rules the judge gives them are fair and either won’t apply or compromise substantially in applying. We need to know the jurors ideas of fairness regarding our case of liability. We want to know how they would apply them to the plaintiff or defendant. We also need to learn what rules the group might create on their own.
  6. Do the facts we  presented motivate the group to “want to send a message”? We know that jurors want to do the right thing and that a trial is actually a morality play of right and wrong. We know that jurors forgive mistakes of ordinary negligence but punish wrongdoing due to bad motives. They also are concerned about personal protection for themselves, their families and the community. Therefore, does the group see something in the underlying facts of the case that motivates them to want to “send a message” in anger or self protection to ensure this doesn’t happen again?
  7. Are there factors that promote anger? Facts which may prompt lawyers to be upset are not always upsetting to jurors. The focus group can help discover facts which tend to anger people. My friend, attorney Mark Mandel, has written about the “I just can’t get over” factor in cases. That is the juror who says after the verdict was entered for the plaintiff “I just couldn’t get over the fact that…” Focus studies have the ability to discover these kinds of motivating issues that  we  need  to know about.

The entire subject of  focus studies is one too long to present in this format, but the  points raised by the two lawyers  in the article cited are very important.  They have captured essential truths of about conduct focus studies correctly.

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