This cross examination discussion is taken from my cross examination notes in a recent survival action economic loss case.

The Forensic Economist. Agree the forensic economist develops estimates for numerous variables that affect the ultimate recovery in tort cases. Agree in a survival action these variables are: choice of base earnings, choice of earnings growth rate, valuation of fringe benefits,  estimation of personal consumption, and choice of discount rate.

Base Earnings Rate. Defense forensic economists will start as low as possible. When they begin too low cover how the low base rate was arrived at and why a low base rate will lead to a lower economic loss amount. Demonstrate the rate of pay at which the economist should have started.

Earnings Growth. Another way the defense economist can understate economic damages is by way of the “earnings growth rate.” Earnings do not grow in a linear manner until retirement. Typically they peak about ten years before retirement. Here time must be spent with plaintiff’s economist to determine and understand a fair economic growth rate. When the defense economist fails to do this and understates growth this is demonstrated in cross examination.

Fringe Benefits. The defense economist will likely start with a low base income rate and fail to add fringe benefits. “Data from the last few decades reveals that fringe benefits have increased significantly as a percentage of overall compensation. These benefits now account for almost 30%… of total compensation. ,,, Damage calculations must therefore include a valuation of fringe benefits.” David Gordon, A Forensic Economics Primer (Journal of Comprehensive Research).

Consumption. The defense economist will likely try to overstate personal consumption. This is because the amount of personal consumption is deducted from lifetime earnings before the discount rate is used to arrive at net economic loss. Future earnings of the deceased are adjusted for his consumption. See id. at 44-45. Consumption covers expenditures on goods and services, but does not include joint family expenditures. When possible the economist will look to actual expenses, but this does not work in the case of a young decedent. Have an understanding of how your economist is addressing personal consumption, and make sure it is solid. Hold the defendant economist to a similar analysis to prevent his getting away with overstating consumption which results in understating net economic loss.

Discount Rate. The United States Supreme Court in Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523 (1983) addressed the issue of the proper discount rate in a personal injury case involving future economic loss. The Court reasoned in all personal injury cases involving future economic loss “it is reasonable to suppose that interest may safely be earned upon the amount that is awarded. Id. at 537. Thus, the ascertained future benefits should be discounted. The Court pointed out the discount rate should be one earned on the best and safest investments. Id. The injured plaintiff is “entitled to a risk-free stream of future income to replace his lost wages; therefore, the discount rate should not reflect the market’s premium for investors who are willing to accept some risk of default.” Id. The Court concluded the amount of future economic loss must encompass the amount the injured plaintiff would have earned during each year he could have worked but for his injury and the appropriate discount rate “reflecting the safest available investment.” Id. at 538. Always have  the Jones case at hand when cross examining the defense economic expert. This is because the defense expert will likely use a high discount rate arrived at at least partially from stock market return rates. Remember, the higher the discount  rate the lower the net economic loss amount.

The post Cross Exam of Defense Forensic Economist appeared first on Zen Lawyer Patrick Trudell.

Just finished jury trial. Did OK. Below my latest on jury selection:

Introduction. “Get to talk to you three times: Now during jury selection, opening statement, and closing statement. But here in jury selection you do most of talking. What we are doing is hearing your personal feelings, experiences and outlooks to see if this is the right jury for you.”

Read Neutral Statement. “What comes to mind on hearing this statement?” (Ideally we are off and running after the first comment. Listen and encourage input. Keep the comment ball rolling). “Who agrees with Mr. Jones?”  ”Who disagrees.” “Tell me more.” Thank panel member for input. Never cross examine or disagree.

Flow into Next Area of Discussion. Allow panel members to get into other topics on their own through input when good topic for discussion surfaces as conversation evolves. Be attentive to talking juror. Listen with appreciation.

Either or Questions. Have set of three either or questions to get conversation when never starts, dies, or running out of time. “Let’s do either or. I will read two statements and ask you to raise your number for the statement closest to how you feel.” 1) Lawsuits are at times necessary to receive fair compensation for a personal injury, or Lawsuits are a drain on society, bad things happen, move on and forget about personal injury. 2) There should be caps on damages above which jury cannot award, or Juries should be able to award what they collectively feel the case is worth. 3) If a person is injured his medical bills should be paid and his lost wages but that’s it, or If a person is injured he should also receive money for non economic damages he proves.

Note on the either or you will find jurors who do not agree with either proposition. These jurors are often the type who will be the presiding juror. Have discussion with jurors who will not go either way to hear their feelings and viewpoints.

Save Softball Question. Always end positive. This is done by way of softball feel good question involving everyone. “Not much time left. In one word tell us your most important thing in life. Then go to juror after juror ending voir dire with last answer.”

The post Jury Selection appeared first on Zen Lawyer Patrick Trudell.

Last post we discussed level one jury selection with jury selection notes from recent trial. Notes are prepared to go into jury selection-pre selection thoughts to potentially cover to get the panel going. Now we discuss level two-becoming one with the panel. Here we are guided by Carl Rogers, On Becoming a Person (1961).

“In my relationships with persons I have found that it does not help… to act as though I were something that I am not.” The first step in level two becoming one with the panel is to be ourself. To be ourself means to personally contemplate the essence of the case especially the bad facts and problem areas. When this is done we can reveal ourself and how we  feel. The panel intuitively recognizes this and responds by revealing themselves.

“I have found it of enormous value when I can permit myself to understand another person.” Carl Rogers reveals the essence of level two jury selection with this quote. Here we bound with the panel by listening and accepting. We get to the level of understanding. This understanding must be an unconditional understanding-even when we feel we do not agree. When we have unconditional understanding we have a bound.

“I have found it highly rewarding when I accept another person.” Here Rogers tells us we benefit by accepting unconditionally the members of the panel. The panel has bounded to some extent before we meet in jury selection. They have accepted each other at various levels. They know when we accept them. And when we accept them when we are not in agreement they will more readily accept us when they are not initially in agreement. In essence they accept the possibility we may be right. We may be the exception to their initial reaction. For every rule has an exception.

“The facts are friendly.” Stated another way the truth is friendly. We never forget this maxim in jury selection. The truth rings with authenticity, and the panel knows it. The panel will understand problems and bad facts when we deal with them openly seeking their input. We have bonded and we have to accomplish fairness together. To accomplish fairness we must together face the hurdles.

“Life at its best, is a flowing, changing process in which nothing is fixed.” Jury selection at level two is life at its best. We flow with the panel. To do this nothing can be fixed. To set anything in concrete is to have an agenda and this will kill us. We must be our real self. We must move with the natural dynamic of the panel. When we do this by way of the Carl Rogers maxims we will be in jury selection at its best. The panel will likely respond favorably.

The post Jury Selection-Level Two appeared first on Zen Lawyer Patrick Trudell.

In a personal injury case it is easy to advise our client. First, fair value cannot be obtained from the insurance company unless we are going to try the case.  Second, all trials are plays, and the theatrical genre that fits a personal injury case is the Greek Tragedy. Third the formula for a successful tragedy is a hero who sustains adversity, does everything in his power to overcome the adversity, but fails to overcome the adversity.

Once this is understood our client is advised to do the following:

Always Tell the Truth. No matter what the truth is this is our client’s story. We never deviate from the truth. Any detour from the truth is death to our case. So rule number one is tell the truth. Now when our client tells the truth he does so in strong language. This means nouns and verbs. Forget adjectives and adverbs. Forget weak phrases and words like “pretty sure,” “I think maybe,” “little.” Just tell it like it is from the heart.

Follow Doctors Orders. The adversity our client is dealing with is his injury. For his injury he needs to go to his doctor and listen to his doctor. If our client asks what he should do for his injury we respond do what the doctor orders. If the  doctor says physical therapy go to physical therapy. If the doctor says get an MRI then get an MRI. If our client wants to try other treatment like chiropractic then he goes to his doctor and his doctor directs chiropractic treatment.

Overcome Adversity. We push our client to move through the treatment steps. We push our client to do everything possible to recover. On work we have our client take direction from the doctor. Whenever possible keep working. Working gives our client needed income and allows for a positive self image which means faster recovery. This assumes work is not aggravating the injury which is where the doctor needs to weigh in. Again we have our client listen to his doctor.

Activities. As with work we advise our client to get back into his pre-injury activities as soon as possible. Again our client needs to take direction from his doctor. Activities are an important barometer on recovery. If our client cannot get back to his pre-injury level of activities he likely has a permanent injury. Often he has residual strength deficits and/or range of motion limitations which prevent a resumption of pre-injury activity level. We also address any permanent pain our client is left with.

Making the Case. Once treatment is complete we have our case. Assuming our client has followed our advise and done everything he can to overcome his injuries he need only tell it like it is from the heart. It sounds simple and it is as the truth rings with the authenticity of a quality case.

The post Advising Client appeared first on Zen Lawyer Patrick Trudell.

We all have fear. Fear of the unknown. Fear of failure. Fear of success. To have fear is to be alive. To have fear is to understand risk. To have fear is to know something is at stake.

As a trial lawyer I have fear. Most trial lawyers have fear, especially going into trial. Accept fear as a good thing. When we lose  fear we lose a valuable emotion. An emotion that makes us better. Better assuming we continue to walk into our fear.

While at Trial Lawyers College I wrote this poem for my son:

Walk Toward Fear

Is not fear my friend.

For without fear my life should end.

All that is unknown brings fear.

Facing fear makes the unknown clear.

The fear of failure causes stagnation.

But to venture forward brings origination.

Nothing new happens without walking toward fear.

And growth comes from moving near.

So embrace fear as a gift.

A gift that gives life its lift.

The post Walk Toward Fear appeared first on Zen Lawyer Patrick Trudell.

Facts are subjective or objective. “Both things and events are objective facts. They exist in the public domain and are in principle accessible to all.”  D. Q. McInerny, Being Logical (Random House paperback 2005) at 5. But there is a difference between a subjective fact and an objective fact. A headache is an example of a subjective fact. Id. at 6. The person experiencing the headache has direct evidence of it factualness. Id. When it is another person who is hearing about  the headache its factualness can only indirectly be established. “Establishing the reality of subjective facts depends entirely on the trustworthiness of those who claim to be experiencing them.” Id. When the fact is an existing thing to which the listener has access to view it becomes objective and we need not “trust” the speaker.

What about a fact demonstrated through show and tell. When we show and tell we likely eliminate communication problems that occur when our spoken word is not interpreted in the same way we mean to convey. When we show and tell the listener sees our subjective fact closer to an objective fact. This is because our listener is given visual cues to what is being said.

When we have our witness at trial show what has occurred rather than tell what has occurred the facts rise to a higher level. This is because the jury is able to experience the facts rather than just hear about the facts. The facts come to life through the witness as she speaks in the present tense and recreates the event by showing what occurred. She does this by showing and telling a scene of the event.

Ideally the witness is allowed to come from the witness stand into the well of the courtroom in front of the jury. The witness explains the scene to the jury. She then uses props such as a council chair for the driver’s seat of a car. In the seat she recreates the scene in front of the jury. Often the only prop necessary is a chair as the scene is visually set by the witness before the show and tell is performed in front of the jury. As the saying goes seeing is believing and the jury is allowed to see through witness show and tell.

The post Witness Show and Tell appeared first on Zen Lawyer Patrick Trudell.

This post takes from my last three trials, Trial Lawyer’s College, The Tao Of Pooh, and The Tao of Physics.

Preparation. In any phase of trial from voir dire to closing argument it is important to prepare. The great Clarence Darrrow memorized poems and quotes he planned on reciting during argument. It is foolhardy to go into any phase of trial without at least a preliminary outline on what needs to be covered. In my trials I write out my opening statement, my direct and cross examination questions and my closing argument.

Plastic v. Spontaneous. Although having a planned presentation or preconceived idea of how a phase of trial will go makes sense, to blindly stick to the script is plastic. It is living outside the moment of trial. Most important sticking strictly to a prepared script results in trying the case without being able to move to where the jury is at the moment. To try the case where the jury is at the moment we must also be in the moment. This can only be done if we spontaneously live in the moment with the jury.

The Way of the Tao. When we try the case in the way of the Tao we recognize the concept of change. We recognize the changes in a trial do not usually occur because of our plastic presentation. “[R]ather [the changes in trial occur] as a tendency which is innate in all things and situations.” F. Capra, The Tao of Physics at 116 (5th Ed. 2010). The moments ot the Tao are not forced, but occur naturally and spontaneously. Id. “Spontanety is the Tao’s principle of action, and since human conduct should be modeled on the operation of the Tao, spontanety should also be characteristic of all human actions.” Id. 

Acting in Harmony with the Trial.  For the Taoist, acting in harmony with the trial means acting spontaneously according to our true nature. This means trusting our intuitive intelligence which is innate and in the moment. We do not force ourself. Rather we adapt our action to the trial moment. “In the words of Huai Nan Tzu, Those who follow the natural order flow in the current of the Tao.” Id. at 117.

Prepare and Forget.  To try the case at the highest level we discover our client’s story and show the story at trial. In each phase of  trial we have imaged the phase and prepared accordingly. Once we get to the phase we forget who we are (meaning any plastic presentation), live in the moment and believe in our innate intuitive nature. We include the jury as we live in the trial moment.

The post The Tao of Trial appeared first on Zen Lawyer Patrick Trudell.

Here is procedure, taken from Howard Nations, on using prior statement to impeach:

1. Illicit.  Get the witness to state the contradictory testimony. (Standing so witness must face jury to answer).

2. Set Predicate.  Have witness agree to prior sworn statement. (Date, place, to whom).

3. Produce. Hand clerk the prior statement and have it marked as exhibit. (Give copies for judge and opposition counsel).

4. Witness Reads. Hand marked prior statement to witness and have witness read.

5. Dangle Witness. Go to counsel table and futz around while witness has to either continue looking at jury or look away.

6. Return. After letting witness dangle (until judge asks you to resume) return to cross but to a new area of questioning.

(This is because we do not want the witness to return to impeached topic to rehabilitate through answer to similar line of
questioning).

The post Cross Examination-Using Prior Statement appeared first on Zen Lawyer Patrick Trudell.

Recently we settled a significant personal injury case where we addressed the issue of a Medicare Set Aside (MSA). The issue was raised by defense during settlement negotiations. Defendants argued they could be held liable by Medicare as could we if we ignored the MSA issue. They initially attempted to control what portion of the settlement funds would be used for a MSA. This post discussses how we handled the MSA issue.

Medicare and Medicad Liens. The Medicare program was established by Congress in 1965 in the Social Security Act. 42 U.S.C. sec. 1395 et seq. Medicare provides medical payments for Medicare eligible people (people receiving Social Security benefits). Under federal law Medicare has a super lien for reimbursement of Medicare benefits paid for the injured Medicare recipient’s medical specials. Nonetheless, federal regulations require Medicare to reduce the amount of its recovery to take into account the cost of procuring the settlement when the claim is disputed and the recovering party has borne cost in obtaining the recovery. In re: Zyprexa Products Liability Litigation, 451 F. Supp.2d 458(E.D.N.Y. 2006)(analysis of Medicare and Medicade liens). Federal law also recognizes Medicad (state version of Medicare) liens, and provides federal authority for collection of Medicad liens.  See Arkansas Dept. of Health and Human Services v. Ahlborn, 547 U.S. 268 (2006)(Arkansas Medicare statute for plenary lien held invalid, must recognize injured plaintiff).

Medicare Set Aside. A MSA is a fund separately identified from the settlement proceeds to be paid to Medicare for the injured plaintiff’s future medical needs. Recently defendants (insurance companies for defendants) have been arguing the settlement must include a MSA. This argument is made even when the injured plaintiff is not yet and may never be a Medicare recipient. Defendants also try to dictate  the amount of a MSA. In personal injury cases, these arguments must be resisted  to the point of litigating the MSA issue.

Federal Authority. “No federal law requires set-aside arrangements in personal injury settlements for future medical expenses.” Sipler v. Trans Am Trucking, Inc., (D.N.J. 2012). As recognized by the Sipler court, tort cases involve non-economic damages which are not determined by an established formula. See Zinman v. Shalala, 67 F.3d 841,846 (9th Cir. 1995). “[T]o require personal injury settlements to specifically apportion future medical expenses would prove burdensome to the settlement process, and, in turn, discourage personal injury settlements.” Sipler; cf. Ahlborn,  587 U. S. at 268  (in context of Medicad).

Solution. Our solution is plaintiff will consider the need for a MSA after consulting with a  MSA law firm, but plaintiff has the responsibility and discretion to determine the final set aside (if any). The terms of the settlement order  give plaintiff control over the MSA issue. Below is the relevant language:

Finding of Fact-Establishment of Qualified Settlement Fund. The parties have agreed to use a Qualified Settlement Fund  (QSF) established pursuant to section 468B of the Internal Revenue Code for purposes of holding the settlement funds and the disbursement of such funds pursuant to orders of this court.

Conclusion of Law-Orders of Disbursement. Orders of disbursement from the QSF will be made to ensure Medicare conditional payments are reimbursed, that a Medicare Set-Aside (if needed) will be properly funded by plaintiff out of the settlement proceeds, and that plaintiff receives the full benefit of this settlement.

Order. Plaintiff’s counsel shall promptly engage the services of Garretson Resolution Group, a professional firm that specializes in Medicare Secondary Payer compliance, to evaluate the case, determine whether a Medicare Set-Aside (MSA) is recomended, and if so, to present a proposed MSA Allocation. Plaintiff’s counsel and the QSF Payment Administrator shall take into account the MSA recommendation of Garretson to determine if a MSA is appropriate and if so the amount needed to fund the MSA.

The post Medicare Set Aside Argument appeared first on Zen Lawyer Patrick Trudell.

A quality opening statement requires becoming one with our client’s story. Becoming one with our client’s story means feeling the emotion of our client’s story. To accomplish this we follow the following steps:

Listen. We begin by asking our client to show us her story in the first person present tense. We listen to our client. The tendency is to project our story into our client’s story, rather than listening and identifying with our client’s emotions. After we listen to the story we probe our client by asking her what she feels as she relives the events in the first person present tense.

Role Reverse. Next we role reverse and become our client. As Atticus Finch tells daughter Scout: “You never really understand a person until you consider things from his point of view — until you climb into his skin and walk around in it.” Through role reversal we feel the emotion of our client. This allows us to  understand and relate to our client at the highest level.

Doubling. Once we feel our client’s story we go deeper into the story through doubling. We  sit or stand behind our client as she tells the story in first person present tense. When we feel something deeper in the story we speak to our client from behind by becoming our client’s voice. We coordinate this so our client adds our input into the story if it fits how she feels if not our input is ignored. When doubling works our client is assisted in getting to a deeper emotional level.

Recreate Scenes. Seeing is believing and seeing can cause a subjective (spoken) fact to rise to the level of an objective (visualized) fact. Thus we recreate key scenes in our client’s story using props. Props are as simple as office chairs to represent a room where the scene occurred. We can also use people in our office to play the role of others in the scene. We assist our client in reliving the scene by directing the scene. Once the scene is created another person can play our client as she observes the scene, verifies accuracy and gets in touch with her emotional response.

Identify Emotional Power. Now that we have recreated what we feel are key scenes we and our client can identify scenes that contain emotional power in the story. This emotional power is felt at a deep level by both attorney and client. We have now discovered where the emotional power will come in our opening statement. Cases are won when the  emotions of our client flow into the courtroom.

The post Opening Statement-Discover the Story appeared first on Zen Lawyer Patrick Trudell.

This cross examination discussion is taken from my cross examination notes in a recent survival action economic loss case.

The Forensic Economist. Agree the forensic economist develops estimates for numerous variables that affect the ultimate recovery in tort cases. Agree in a survival action these variables are: choice of base earnings, choice of earnings growth rate, valuation of fringe benefits,  estimation of personal consumption, and choice of discount rate.

Base Earnings Rate. Defense forensic economists will start as low as possible. When they begin too low cover how the low base rate was arrived at and why a low base rate will lead to a lower economic loss amount. Demonstrate the rate of pay at which the economist should have started.

Earnings Growth. Another way the defense economist can understate economic damages is by way of the “earnings growth rate.” Earnings do not grow in a linear manner until retirement. Typically they peak about ten years before retirement. Here time must be spent with plaintiff’s economist to determine and understand a fair economic growth rate. When the defense economist fails to do this and understates growth this is demonstrated in cross examination.

Fringe Benefits. The defense economist will likely start with a low base income rate and fail to add fringe benefits. “Data from the last few decades reveals that fringe benefits have increased significantly as a percentage of overall compensation. These benefits now account for almost 30%… of total compensation. ,,, Damage calculations must therefore include a valuation of fringe benefits.” David Gordon, A Forensic Economics Primer (Journal of Comprehensive Research).

Consumption. The defense economist will likely try to overstate personal consumption. This is because the amount of personal consumption is deducted from lifetime earnings before the discount rate is used to arrive at net economic loss. Future earnings of the deceased are adjusted for his consumption. See id. at 44-45. Consumption covers expenditures on goods and services, but does not include joint family expenditures. When possible the economist will look to actual expenses, but this does not work in the case of a young decedent. Have an understanding of how your economist is addressing personal consumption, and make sure it is solid. Hold the defendant economist to a similar analysis to prevent his getting away with overstating consumption which results in understating net economic loss.

Discount Rate. The United States Supreme Court in Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523 (1983) addressed the issue of the proper discount rate in a personal injury case involving future economic loss. The Court reasoned in all personal injury cases involving future economic loss “it is reasonable to suppose that interest may safely be earned upon the amount that is awarded. Id. at 537. Thus, the ascertained future benefits should be discounted. The Court pointed out the discount rate should be one earned on the best and safest investments. Id. The injured plaintiff is “entitled to a risk-free stream of future income to replace his lost wages; therefore, the discount rate should not reflect the market’s premium for investors who are willing to accept some risk of default.” Id. The Court concluded the amount of future economic loss must encompass the amount the injured plaintiff would have earned during each year he could have worked but for his injury and the appropriate discount rate “reflecting the safest available investment.” Id. at 538. Always have  the Jones case at hand when cross examining the defense economic expert. This is because the defense expert will likely use a high discount rate arrived at at least partially from stock market return rates. Remember, the higher the discount  rate the lower the net economic loss amount.

Just finished jury trial. Did OK. Below my latest on jury selection:

Introduction. “Get to talk to you three times: Now during jury selection, opening statement, and closing statement. But here in jury selection you do most of talking. What we are doing is hearing your personal feelings, experiences and outlooks to see if this is the right jury for you.”

Read Neutral Statement. “What comes to mind on hearing this statement?” (Ideally we are off and running after the first comment. Listen and encourage input. Keep the comment ball rolling). “Who agrees with Mr. Jones?”  “Who disagrees.” “Tell me more.” Thank panel member for input. Never cross examine or disagree.

Flow into Next Area of Discussion. Allow panel members to get into other topics on their own through input when good topic for discussion surfaces as conversation evolves. Be attentive to talking juror. Listen with appreciation.

Either or Questions. Have set of three either or questions to get conversation when never starts, dies, or running out of time. “Let’s do either or. I will read two statements and ask you to raise your number for the statement closest to how you feel.” 1) Lawsuits are at times necessary to receive fair compensation for a personal injury, or Lawsuits are a drain on society, bad things happen, move on and forget about personal injury. 2) There should be caps on damages above which jury cannot award, or Juries should be able to award what they collectively feel the case is worth. 3) If a person is injured his medical bills should be paid and his lost wages but that’s it, or If a person is injured he should also receive money for non economic damages he proves.

Note on the either or you will find jurors who do not agree with either proposition. These jurors are often the type who will be the presiding juror. Have discussion with jurors who will not go either way to hear their feelings and viewpoints.

Save Softball Question. Always end positive. This is done by way of softball feel good question involving everyone. “Not much time left. In one word tell us your most important thing in life. Then go to juror after juror ending voir dire with last answer.”

Last post we discussed level one jury selection with jury selection notes from recent trial. Notes are prepared to go into jury selection pre-selection thoughts to potentially cover to get the panel going. Now we discuss level two-becoming one with the panel. Here we are guided by Carl Rogers, On Becoming a Person (1961).

“In my relationships with persons I have found that it does not help… to act as though I were something that I am not.” The first step in level two becoming one with the panel is to be ourselves. To be ourselves means to personally contemplate the essence of the case especially the bad facts and problem areas. When this is done we can reveal ourselves and how we  feel. The panel intuitively recognizes this and responds by revealing themselves.

“I have found it of enormous value when I can permit myself to understand another person.” Carl Rogers reveals the essence of level two jury selection with this quote. Here we bound with the panel by listening and accepting. We get to the level of understanding. This understanding must be an unconditional understanding-even when we feel we do not agree. When we have unconditional understanding we have a bound.

“I have found it highly rewarding when I accept another person.” Here Rogers tells us we benefit by accepting unconditionally the members of the panel. The panel has bounded to some extent before we meet in jury selection. They have accepted each other at various levels. They know when we accept them. And when we accept them when we are not in agreement they will more readily accept us when they are not initially in agreement. In essence they accept the possibility we may be right. We may be the exception to their initial reaction. For every rule has an exception.

“The facts are friendly.” Stated another way the truth is friendly. We never forget this maxim in jury selection. The truth rings with authenticity, and the panel knows it. The panel will understand problems and bad facts when we deal with them openly seeking their input. We have bonded and we have to accomplish fairness together. To accomplish fairness we must together face the hurdles.

“Life at its best, is a flowing, changing process in which nothing is fixed.” Jury selection at level two is life at its best. We flow with the panel. To do this nothing can be fixed. To set anything in concrete is to have an agenda and this will kill us. We must be our real self. We must move with the natural dynamic of the panel. When we do this by way of the Carl Rogers maxims we will be in jury selection at its best. The panel will likely respond favorably.

In a personal injury case it is easy to advise our client. First, fair value cannot be obtained from the insurance company unless we are going to try the case.  Second, all trials are plays, and the theatrical genre that fits a personal injury case is the Greek Tragedy. Third the formula for a successful tragedy is a hero who sustains adversity, does everything in his power to overcome the adversity, but fails to overcome the adversity.

Once this is understood our client is advised to do the following:

Always Tell the Truth. No matter what the truth is this is our client’s story. We never deviate from the truth. Any detour from the truth is death to our case. So rule number one is tell the truth. Now when our client tells the truth he does so in strong language. This means nouns and verbs. Forget adjectives and adverbs. Forget weak phrases and words like “pretty sure,” “I think maybe,” “little.” Just tell it like it is from the heart.

Follow Doctors Orders. The adversity our client is dealing with is his injury. For his injury he needs to go to his doctor and listen to his doctor. If our client asks what he should do for his injury we respond do what the doctor orders. If the  doctor says physical therapy go to physical therapy. If the doctor says get an MRI then get an MRI. If our client wants to try other treatment like chiropractic then he goes to his doctor and his doctor directs chiropractic treatment.

Overcome Adversity. We push our client to move through the treatment steps. We push our client to do everything possible to recover. On work we have our client take direction from the doctor. Whenever possible keep working. Working gives our client needed income and allows for a positive self image which means faster recovery. This assumes work is not aggravating the injury which is where the doctor needs to weigh in. Again we have our client listen to his doctor.

Activities. As with work we advise our client to get back into his pre-injury activities as soon as possible. Again our client needs to take direction from his doctor. Activities are an important barometer on recovery. If our client cannot get back to his pre-injury level of activities he likely has a permanent injury. Often he has residual strength deficits and/or range of motion limitations which prevent a resumption of pre-injury activity level. We also address any permanent pain our client is left with.

Making the Case. Once treatment is complete we have our case. Assuming our client has followed our advise and done everything he can to overcome his injuries he need only tell it like it is from the heart. It sounds simple and it is as the truth rings with the authenticity of a quality case.

We all have fear. Fear of the unknown. Fear of failure. Fear of success. To have fear is to be alive. To have fear is to understand risk. To have fear is to know something is at stake.

As a trial lawyer I have fear. Most trial lawyers have fear, especially going into trial. Accept fear as a good thing. When we lose  fear we lose a valuable emotion. An emotion that makes us better. Better assuming we continue to walk into our fear.

While at Trial Lawyers College I wrote this poem for my son:

Walk Toward Fear

Is not fear my friend.

For without fear my life should end.

All that is unknown brings fear.

Facing fear makes the unknown clear.

The fear of failure causes stagnation.

But to venture forward brings origination.

Nothing new happens without walking toward fear.

And growth comes from moving near.

So embrace fear as a gift.

A gift that gives life its lift.

Facts are subjective or objective. “Both things and events are objective facts. They exist in the public domain and are in principle accessible to all.”  D. Q. McInerny, Being Logical (Random House paperback 2005) at 5. But there is a difference between a subjective fact and an objective fact. A headache is an example of a subjective fact. Id. at 6. The person experiencing the headache has direct evidence of it factualness. Id. When it is another person who is hearing about  the headache its factualness can only indirectly be established. “Establishing the reality of subjective facts depends entirely on the trustworthiness of those who claim to be experiencing them.” Id. When the fact is an existing thing to which the listener has access to view it becomes objective and we need not “trust” the speaker.

What about a fact demonstrated through show and tell. When we show and tell we likely eliminate communication problems that occur when our spoken word is not interpreted in the same way we mean to convey. When we show and tell the listener sees our subjective fact closer to an objective fact. This is because our listener is given visual cues to what is being said.

When we have our witness at trial show what has occurred rather than tell what has occurred the facts rise to a higher level. This is because the jury is able to experience the facts rather than just hear about the facts. The facts come to life through the witness as she speaks in the present tense and recreates the event by showing what occurred. She does this by showing and telling a scene of the event.

Ideally the witness is allowed to come from the witness stand into the well of the courtroom in front of the jury. The witness explains the scene to the jury. She then uses props such as a council chair for the driver’s seat of a car. In the seat she recreates the scene in front of the jury. Often the only prop necessary is a chair as the scene is visually set by the witness before the show and tell is performed in front of the jury. As the saying goes seeing is believing and the jury is allowed to see through witness show and tell.

This post takes from my last three trials, Trial Lawyer’s College, The Tao Of Pooh, and The Tao of Physics.

Preparation. In any phase of trial from voir dire to closing argument it is important to prepare. The great Clarence Darrrow memorized poems and quotes he planned on reciting during argument. It is foolhardy to go into any phase of trial without at least a preliminary outline on what needs to be covered. In my trials I write out my opening statement, my direct and cross examination questions and my closing argument.

Plastic v. Spontaneous. Although having a planned presentation or preconceived idea of how a phase of trial will go makes sense, to blindly stick to the script is plastic. It is living outside the moment of trial. Most important sticking strictly to a prepared script results in trying the case without being able to move to where the jury is at the moment. To try the case where the jury is at the moment we must also be in the moment. This can only be done if we spontaneously live in the moment with the jury.

The Way of the Tao. When we try the case in the way of the Tao we recognize the concept of change. We recognize the changes in a trial do not usually occur because of our plastic presentation. “[R]ather [the changes in trial occur] as a tendency which is innate in all things and situations.” F. Capra, The Tao of Physics at 116 (5th Ed. 2010). The moments ot the Tao are not forced, but occur naturally and spontaneously. Id. “Spontaneity is the Tao’s principle of action, and since human conduct should be modeled on the operation of the Tao, spontaneity should also be characteristic of all human actions.” Id. 

Acting in Harmony with the Trial.  For the Taoist, acting in harmony with the trial means acting spontaneously according to our true nature. This means trusting our intuitive intelligence which is innate and in the moment. We do not force ourselves. Rather we adapt our action to the trial moment. “In the words of Huai Nan Tzu, Those who follow the natural order flow in the current of the Tao.” Id. at 117.

Prepare and Forget.  To try the case at the highest level we discover our client’s story and show the story at trial. In each phase of  trial we have imaged the phase and prepared accordingly. Once we get to the phase we forget who we are (meaning any plastic presentation), live in the moment and believe in our innate intuitive nature. We include the jury as we live in the trial moment.

Here is procedure, taken from Howard Nations, on using prior statement to impeach:

1. Illicit.  Get the witness to state the contradictory testimony. (Standing so witness must face jury to answer).

2. Set Predicate.  Have witness agree to prior sworn statement. (Date, place, to whom).

3. Produce. Hand clerk the prior statement and have it marked as exhibit. (Give copies for judge and opposition counsel).

4. Witness Reads. Hand marked prior statement to witness and have witness read.

5. Dangle Witness. Go to counsel table and futz around while witness has to either continue looking at jury or look away.

6. Return. After letting witness dangle (until judge asks you to resume) return to cross but to a new area of questioning.

(This is because we do not want the witness to return to impeached topic to rehabilitate through answer to similar line of
questioning).

Recently we settled a significant personal injury case where we addressed the issue of a Medicare Set Aside (MSA). The issue was raised by defense during settlement negotiations. Defendants argued they could be held liable by Medicare as could we if we ignored the MSA issue. They initially attempted to control what portion of the settlement funds would be used for a MSA. This post discuses how we handled the MSA issue.

Medicare and Medicad Liens. The Medicare program was established by Congress in 1965 in the Social Security Act. 42 U.S.C. sec. 1395 et seq. Medicare provides medical payments for Medicare eligible people (people receiving Social Security benefits). Under federal law Medicare has a super lien for reimbursement of Medicare benefits paid for the injured Medicare recipient’s medical specials. Nonetheless, federal regulations require Medicare to reduce the amount of its recovery to take into account the cost of procuring the settlement when the claim is disputed and the recovering party has borne cost in obtaining the recovery. In re: Zyprexa Products Liability Litigation, 451 F. Supp.2d 458(E.D.N.Y. 2006)(analysis of Medicare and Medicade liens). Federal law also recognizes Medicad (state version of Medicare) liens, and provides federal authority for collection of Medicad liens.  See Arkansas Dept. of Health and Human Services v. Ahlborn, 547 U.S. 268 (2006)(Arkansas Medicare statute for plenary lien held invalid, must recognize injured plaintiff).

Medicare Set Aside. A MSA is a fund separately identified from the settlement proceeds to be paid to Medicare for the injured plaintiff’s future medical needs. Recently defendants (insurance companies for defendants) have been arguing the settlement must include a MSA. This argument is made even when the injured plaintiff is not yet and may never be a Medicare recipient. Defendants also try to dictate  the amount of a MSA. In personal injury cases, these arguments must be resisted  to the point of litigating the MSA issue.

Federal Authority. “No federal law requires set-aside arrangements in personal injury settlements for future medical expenses.” Sipler v. Trans Am Trucking, Inc., (D.N.J. 2012). As recognized by the Sipler court, tort cases involve non-economic damages which are not determined by an established formula. See Zinman v. Shalala, 67 F.3d 841,846 (9th Cir. 1995). “[T]o require personal injury settlements to specifically apportion future medical expenses would prove burdensome to the settlement process, and, in turn, discourage personal injury settlements.” Sipler; cf. Ahlborn,  587 U. S. at 268  (in context of Medicad).

Solution. Our solution is plaintiff will consider the need for a MSA after consulting with a  MSA law firm, but plaintiff has the responsibility and discretion to determine the final set aside (if any). The terms of the settlement order  give plaintiff control over the MSA issue. Below is the relevant language:

Finding of Fact-Establishment of Qualified Settlement Fund. The parties have agreed to use a Qualified Settlement Fund  (QSF) established pursuant to section 468B of the Internal Revenue Code for purposes of holding the settlement funds and the disbursement of such funds pursuant to orders of this court.

Conclusion of Law-Orders of Disbursement. Orders of disbursement from the QSF will be made to ensure Medicare conditional payments are reimbursed, that a Medicare Set-Aside (if needed) will be properly funded by plaintiff out of the settlement proceeds, and that plaintiff receives the full benefit of this settlement.

Order. Plaintiff’s counsel shall promptly engage the services of Garretson Resolution Group, a professional firm that specializes in Medicare Secondary Payer compliance, to evaluate the case, determine whether a Medicare Set-Aside (MSA) is recomended, and if so, to present a proposed MSA Allocation. Plaintiff’s counsel and the QSF Payment Administrator shall take into account the MSA recommendation of Garretson to determine if a MSA is appropriate and if so the amount needed to fund the MSA.

A quality opening statement requires becoming one with our client’s story. Becoming one with our client’s story means feeling the emotion of our client’s story. To accomplish this we follow the following steps:

Listen. We begin by asking our client to show us her story in the first person present tense. We listen to our client. The tendency is to project our story into our client’s story, rather than listening and identifying with our client’s emotions. After we listen to the story we probe our client by asking her what she feels as she relives the events in the first person present tense.

Role Reverse. Next we role reverse and become our client. As Atticus Finch tells daughter Scout: “You never really understand a person until you consider things from his point of view — until you climb into his skin and walk around in it.” Through role reversal we feel the emotion of our client. This allows us to  understand and relate to our client at the highest level.

Doubling. Once we feel our client’s story we go deeper into the story through doubling. We  sit or stand behind our client as she tells the story in first person present tense. When we feel something deeper in the story we speak to our client from behind by becoming our client’s voice. We coordinate this so our client adds our input into the story if it fits how she feels if not our input is ignored. When doubling works our client is assisted in getting to a deeper emotional level.

Recreate Scenes. Seeing is believing and seeing can cause a subjective (spoken) fact to rise to the level of an objective (visualized) fact. Thus we recreate key scenes in our client’s story using props. Props are as simple as office chairs to represent a room where the scene occurred. We can also use people in our office to play the role of others in the scene. We assist our client in reliving the scene by directing the scene. Once the scene is created another person can play our client as she observes the scene, verifies accuracy and gets in touch with her emotional response.

Identify Emotional Power. Now that we have recreated what we feel are key scenes we and our client can identify scenes that contain emotional power in the story. This emotional power is felt at a deep level by both attorney and client. We have now discovered where the emotional power will come in our opening statement. Cases are won when the  emotions of our client flow into the courtroom.