The Velvet Hammer™ -

Prologue: Plaintiff had back surgery.  She had returned to work only just the past week, when she was hit hard by a bad driver.  Ultimately she needed a second surgery due to the crash.  The bad driver admitted fault and her company paid.  But she didn't have enough insurance.  So our client, Ms. P made a claim under her Underinsured Motorist Policy.  Which is what you are supposed to do.  Allstate, her insurance company, required her to sue them as that is what the UIM policy says has to happen.  Ms. P sued Allstate.  Then went thru Mandatory Arbitration.  But Allstate didn't like the verdict so they appealed it and forced a jury trial.  Their main witness was Dr. Blue, a retired neurosurgeon.  During the direct exam, he tells the jury that Ms. P's additional problems after the crash, are related to her pre-existing conditions that had been mildly strained.  He says her second surgery wasn't related to the crash.

This is my trial diary excerpt from March 2013.

As direct winds down, I’m thinking wow.  He’s really good.  And then it is time for cross.

Us lawyers spend a lot of time preparing for cross, thinking about cross,  going to classes to learn about cross, and basically obsessing about cross and scaring ourselves to death over the prospect.  But here is the truth.  There is no one perfect way to do cross that works on all expert witnesses.  There is no magic bullet that will work every time.  Did I read his report in advance – yes.  Did I read a few depositions he had given before yes (thanks Ben Wells).  Did I make some notes – yes.  Do I know the chapter approach – yes.  Do I know the rules approach – yes.  Have I gone to reptile – yes.

But in truth, I do not know what I’m going to do in cross until Jodi sits down and it is my turn.  Being able to be in the moment.  Not focusing on obscure minutiae.   Being able to figure out how the message can be conveyed to the jury as quickly and powerfully as possible.  This is what is needed in cross.  At least for me.

So I sit there as Jodi [defense lawyer] returns to her seat and this is what am thinking. 

WWDDDD.  What Would Drop Dead Diva Do.  (See the prior blog).   This is no joke.  This is very serious.   Love the way she sashays up to the witness and comes up with a spur of the moment perfect cross that wins the entire case.  Because it is just so perfect.   Just takes her a few questions.  Never involves going back and rehashing everything on her terms.  Never boring.  And you are always cheering when she’s done.

I don’t want Dr. B to talk any longer than absolutely essential.  He is too good.  Want him gone.

So instead of talking about the almost million dollars he’s made in the past three years working 15 to 20 hours a week almost entirely for insurance companies, I start off with something completely different.  (Though we do talk about the big bucks a bit later).  I start where Jodi leaves off – destroying our causation.

I need a demonstrative aid.  Have been looking around courtroom.  Thinking through the tissue box and am pretty sure that is where am going to go.  And then something better strikes me.  Literally as am walking up to the bar.

Turn around.  Get my rain coat off chair.  Get three empty paper cups from our table.  Fill one cup with water.  Spread coat on top of the bar below the witness.  Place the cups on them.  And say hello.

Without being mean to him, lighting into him, or picking at him, this is how we begin.

Pour a little water into one cup and hold it up.

Dr. this cup is a vertebrae and I’ve filled it with fluid.  He corrects me because I meant to say it was a disc.  Oh silly me you are right (as usual).  Yes, this is a disc filled with fluid.  Now let’s assume this is a perfect disc of a young person under the age of 35 who has no degenerative disc disease.  If I subject this disc to trauma…and here I try to rip it.  But it is a tough little sucker and I can’t. 

Nick the clerk hands me scissors.  I make a teeny cut, hold it up again.  And rip it all the way to the bottom.  The water drops onto my coat. 

So in this case, is it fair to say that the sole cause of the disc tearing is the trauma I just caused.

Dr. B says yes.  Inside he’s thinking, is she just playing dumb or is she…

I hold up the second cup and pour in some water.  Make a cut at the top with Nick’s scissors.

Now, Dr. this time the disc is that of a person like you or I.  Over the age of 35 with degenerative disc disease (ddd – hey same initials as DDD – no wonder this is going to work!).  Do you follow me and he says yes. 

I rip the cup to the bottom and the water falls onto my coat.

Am I correct that even though the disc was already torn a little bit from ddd, it could still be injured further if subjected to trauma.  He agrees.

I hold up the third and final cup.  Make a cut at the top.

Now Dr.  again this is a disc with DDD.  I then rip the cup most but not quite all of the way.  The water does not fall out.

If a person has ddd that has led to a preexisting partial tear that isn’t causing the fluid to leak out, but a few months or in this case six months later, the tear finally gives way…and then I rip the cup the rest of the way and the water splashes to join the rest of the lake on my coat.  Does that mean that the trauma had nothing to do with causing that big tear.

He doesn’t quite get it so I have to do it again, a little better this time. 

He has to agree with what I’m saying.    Because after all, the proof is on the torn up cups and my poor coat. 

I finish with cross.  We take a break.  And Jodi spends the time with him figuring out how to poo poo all this.

When the jury comes back, the redirect is well rehearsed.  Jody and Dr. J do a fine mockery of my little misguided attempt at an exhibition.  Confident they have shamed me to pieces.  Yet, on recross, instead of shying away from it.  Well, I think WWDDDD.  Pick up my sodden coat.   Sashay back up there.  Plop it back on the bar.  Redo cup number three all over again.  And again, he has to agree.

There are a few more things that happen.  Text Cristina who has come to watch:  Did that work.  She texts back:  I think so. You probably saved the whole case there. 

Here is the transcript of Dr. Blue's cross, redirect and recross, along with my little comments:  

JamesBlueMDtrialcross.pdf

Prologue:  Failure to Mitigate is a legal defense.  The charge here, is the injured person made herself worse by not following doctors orders.

We break for lunch.

I’m out in the hall.  Meeting the parade of C’s own health care providers that Nick is calling to testify in the defense case against her. 

At 1:00 a prisoner in shackles is marched in.  The courtroom fills.  Cristina comes out to the hall about half an hour later.  She looks flustered.  What happened.  I’d told her to stay and watch as it would be interesting.

Well, it is apparently a bit brutal.  A sentencing hearing.  The guy beat his girlfriend with a metal pipe.  First fracturing her hands and wrists as she held them up to shield her head; then fracturing her skull.  She’s alive so it isn’t a murder charge.

Judge W comes rushing out to go take a break before we resume.  Looks just as upset as Cristina.  Says – I gave him the maximum possible sentence 28 years.  And strides out the door.

The prisoner comes through next.  Flanked by five officers.  Apparently he assaulted someone in jail.  Not a nice fellow.  Followed out of the courtroom by the woman and her family.  All crying.

We start trial about 20 minutes late.

Nick is calling a physician’s assistant and three physical therapists.   It is never a good sign when the defense calls the plaintiff’s own treating providers.  Here, the reason is that C was told she needed to wear a large brace on her left leg to assist with foot drop and hyperextension of the knee.  But she never followed through.  Over and over again they tried to get her to do it.  But she didn’t.  Plus he wants to pull out paragraphs here and there to show how good she was performing on certain tests.

That is his goal.  And that is what he does.  But the story isn’t over.  Because we get to cross.  Which doesn’t mean that we are trying to impeach or contradict these witness.  Au contraire.

Witness number one: the physician’s assistant.  Nick trots him through carefully selected portions of his medical records.  Gets him to admit C didn’t wear her brace. 

Cross time.  I am fiddling with the video (to show some speech therapy).  Get tangled in cords.  Realize I need the speaker.  And apparently begin to drive Nick nuts.  I then pull out exhibit 30, the famous brace.  Objection.  Overruled.  I decide to put it on.  Need a chair.  Am boxed in.  As I try to figure out what to do, Nick offers me his chair.  Why thank you Mr. Scarpelli.   Sit down.  Take off my shoes.  This takes a while because I have little ankle straps.   Begin to strap on the brace.   The jurors stand up.  Smiling.  Trying to get a good look at what I'm doing.

Limp over to the PA witness, but he’s not real familiar with how this contraption is going to work.  Says I should ask the physical therapist.  Good idea.

Limp back to chair. Take off brace.  Ask the court for permission to publish it to the jury.  Nick objects.  Argues - waste of time.  What he’s really saying is – are you freakin’ kidding me, this woman drives me crazy.  Objection overruled.  The jury passes it around as I slowly buckle my shoes back on.

Witness number two:  the first physical therapist.  Nick takes her through the paragraphs of her chart.  Gets her to say C didn’t follow through with her brace.

Cross time.   I am showing her a video of C walking two months ago.  She comes up to the tv.  Uses my pointer.  (Did I tell you that I misplaced my pointer, but Anne pulled one off an old boom box.  It is duct taped.  The judge loves it and always makes a comment about the old chevy it must have come from).   The therapist points at C’s moving image with it.  This brings to life the problem we’ve heard described and pretended to understand.  But really haven’t until now.   I look at her with a smile and ask what size shoe she wears.   Perfect!

Basically I can hear a groan or snort or some sort of gasp for air from Nick’s direction. 

Can you put this brace on and show the jury how it works.

Sure she says. 

But before she can put it on, Nick loses it.  A major meltdown moment.   In a loud voice he accuses me of wasting time and basically of being a bad lawyer.

This is of course the moment that I’ve been waiting for.  Never thinking it would actually come.  Because lawyers know that no matter how much we may argue, we must always be professional.  Especially in front of a judge, clerk, 14 jurors, 3 lawyers, 1 paralegal, 1 tech guy, my daughter, and several other observers.

Apparently I’ve gotten under Nick’s skin.

When Nick is done berating me, I ask with limpid eyes, in a sweet, soft, hurt voice: why are you being so mean to me, I’ve been nothing but nice to you.  

This does not calm him down.

Judge W and the jurors would surely like to break out the popcorn.

He objects to having the therapist put on the brace.  I respond in the same soft, sweet puzzled voice.  But Mr. Scarpelli, the last witness said I should ask this question of PT and that’s what I’m doing.  Objection overruled.

The witness puts on the brace.  The jury stands up to look.  Just like they did for me.  And learns something new.

 Photo:  Nick unsuccessfully objecting to my cross demonstration with the blasted brace.

I first tried a MIST case (Minor Impact Soft Tissue) fifteen years ago. Glenn Phillips (he of the billboard/tv/bus/cab advertising fame) was the defense lawyer.

I was going to be speaking in the country’s first “How to Hammer Allstate” seminar conceived by my then law partner Pat LePley. So I needed a sample case. One of my existing clients was involved in a zero property damage car strike. I took it on to see what Allstate would do. They hired Glenn, his associate, a biomechanic expert and an orthopedic surgeon who wrote a 35 page report. Our side had a chiro who had never testified before even in deposition. And the husband (a Boeing engineer) to counter the defense biomechanic. Well, we beat the zero offer. And got over a grand in sanctions because Allstate refused to admit fault until the first day of trial. My love affair with MIST cases was born.

SCREEEEAATCHHHHHHHHH! (Old fashioned record comes to a jagged ear splitting halt).

The Stritmatter law firm where I work is one of the most prestigious in the region. We are known for handling huge, giant, big damage cases. And yet… And yet, I still try MIST cases. Proudly.

Here is where the struggle comes in and the reason why this diary was almost not written.

Because “great” trial lawyers win gigantic verdicts. They don’t win more than zero in a MIST case. Right?

Let’s be real and honest.

Look at our Trial News magazines. Look at the books by top lawyers that we read. Do we as a profession trumpet our wins and losses of MIST cases. No. We don’t. Other than the occasional surprising win, we silently bear the lowball settlements, the demoralizing losses.

Many lawyers will hang up the phone if someone calls asking for representation in a MIST case. Even though we know that people are truly injured in low speed collisions all the time. Jurors easily buy into the insurance companies' "no crash no cash" defense. And usually disregard what the injured person and their doctors have to say.

I am part of a law firm. I owe them my fealty. My actions reflect on them. If I take on a MIST case and lose it, I impact the reputation of the firm. Because if great lawyers get great big results. Then by logic poor low/defense results means poor lawyers. Right?

Our braggadocio based trial lawyer culture is eating away at our souls. We don’t take small cases to trial because we worry that we will lose and be seen as losers. We only talk about our wins because we can build up our reputations and get more and better cases. Our fear of being branded as a member of the trial lawyer caste that handles small cases, has made it easy for the insurance industry to offer peanuts to those who deserve so much more.

There is another factor involved. A bit more selfish. We’re still being real right?

I am a trial lawyer. I want to grow as a trial lawyer. Good big cases settle. About once every three years, an opportunity comes around where I can try a fantastic big case. So what happens in between. Do I go to trial college. Do I read more books.

Heck no.

I try cases. Small, big, supposedly too tough to win - anything I can sink my teeth into. I will try it. Even when it is a case that is like the one starting tomorrow. A case that seems impossible to win. And may well be.

This diary was almost not written, because I worried that my firm should not suffer loss of reputation from my writing about trying an uphill MIST case. The fact that it is being written is a testament to their strength and belief in me. And to the cause of right to jury trial that we stand for.

This entry is derived from an excerpt in my trial diary of Sept. 2012.

Photo: the best picture of vehicle damage in the case. Thank goodness the finger shows us where to look.