HOW DO YOU EVALUATE DAMAGES FOR A CHILD SHOULDER DYSTOCIA CASE?

I was asked to explain how I would go about deciding the right way to approach damages in a case involving a child who suffered shoulder dystocia at birth. Here is a rough summary of my process. Here is what  I told the lawyer. While this is my viewpoint, Perhaps it may stimulate some  ideas for you

Rid your mind and your thinking right now about other verdicts in cases like this. Your case is not controlled by the results of some other lawyer in some other case. The only limitation on damages is your subjective thinking. You have to absolutely disengage from the efforts of other lawyers in these cases. Your evaluation must be about your case and the issues in this particular case without regard to other settlements or verdicts. There is no standard range of values. Other verdicts and settlements are only valid until someone gets a larger one. 

Start with the now situation. What are the daily activities of this person – eating, dressing, running, playing, working, walking etc. Spend real time watching & learning. Now move ahead in time and repeat the process.  What will this mean in the future. Think about it year by year. Think about the impact of this injury not in some clinical medical way but entirely through the eyes of this client and her personal experiences. We don’t care about the medicine, nor the medical text’s regarding the injury.

We don’t care about the medical evaluation. What we care about is how this impacts her personally, socially, mentally for her entire life – on a personal level involving practically every day activities every person on the jury will understand. This is a form of psycho drama because it involves total role reversal with the child at different periods in her life. Rid your mind of lawyer considerations, legal proof, medical correctness, intellectual issues and think like this person’s outlook as well as the view of the jurors listening. Only the defense lawyer and the judge care about the other legal issues and they don’t vote on the verdict. We really don’t care about clinical considerations of measurement of injury or medications. What we care about is how this impacts this client on a daily basis in their daily life activities. 

Be prepared to explain through the client’s perspective how at each stage of life this injury impacts her in a practical every day way. Live it in a way that you feel it through role reversal. I suspect focus studies would identify negative issues like:  “time heals all wounds” and she will adjust to it;over time she will get used to it; lots of veterans have worse injuries and they get along. Deal with these in jury selection and opening  and generate discussion:

Do the jurors really think a person with an disabling injury gets used to it over time when every new meeting of someone else and every day’s activity is a new challenge? They might learn to put on a good face, but deep inside it is an open wound. They might learn to get around the injury from a functional standpoint – dressing etc, but they never learn to get around it from a mental standpoint and that’s where the damages are. The damages are not in physical limitations. The jurors will believe she will adjust and learn to get around those. The damages are in what it does to her from a self image and mental standpoint. The very area no doctor can measure and no test can validate.

The key to evaluation of damages is to fully and completely understand, identify with and feel the impact of injury on this particular person. Not as an observer looking on but as the person themselves, through their eyes, their viewpoint. Even if the injured person is not dealing with it as others would expect, you need to understand that and the reason why because that is this person’s reality. You need to fully appreciate the impact of injury in a personal way. Not as a clinical analysis, but as a human being living inside this person and  through their eyes and emotions. Your subjective attitude is the only limitation on damage evaluation. Your viewpoint is the limiting factor. You cannot ask for money which you are not prepared to explain fully from the client’s viewpoint and which you fully believe is fair and reasonable. A failure to believe and explain results in the jury seeing you as a greedy lawyer. Obviously, the damage evaluation will be impacted by the liability evaluation and it is a comparison of the two that results in accurate verdict evaluations.

The evaluation of liability depends upon the accuracy of your analysis of the underlying issue or issues in the case. Cases are driven by liability factors. However, lawyers are the least qualified persons to evaluate these issues because they approach it from a legal standpoint. Their thinking is influenced by legal issues in the case, when, in fact, other, emotional issues trump the law. Focus studies are the only way to obtain objective evaluations of the case issues. Non legal issues are always trumped by issues related to deeply held values and emotional reaction by jurors. 

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WHY STORY TELLING IS SUCH A POWERFUL TRIAL LAWYER’S TOOL

By now every trial lawyer has been told or has read about the importance of storytelling. Too often this kind of advice is the sort of thing we hear and read about repetitively but don’t internalize or accept as being as important as it is so we continue to do what we’ve always done: talk in narratives and as a chronology to the jury. Eric Oliver is a jury consultant of many years. (eric@eric-oliver.com)  His company Meta Systems publishes from time to time a newsletter and since Eric and I have worked together on my cases he’s kind enough to send me a copy.  his winter 2016 addition has an article by Leo Widridge “The Science of Storytelling: why telling a story is the most powerful way to activate our brains.”

He makes several important points worth repeating.  Storytelling has been the process by which mankind has communicated and passed on knowledge. 27,000 years ago stories were told by paintings and caves  which is how we are still communicating with each other and to ourselves.

He says that when we are being told a story, things changed dramatically in our brain  as to what parts are activated. The part that is activated during storytelling is the same area of the brain we would use if we were actually experiencing the events being described in the story. If we listen to a PowerPoint presentation with bullet points the language  processing part of the brain is activated, not the storytelling area. Science has shown that evolution has wired our brains for storing telling.

The author says that a story in its simplest form is a connection between cause and effect as if it were happening. Research shows that we make up stories in our heads for every action and conversation. We spend much of our time telling  or listening to personal stories about ourselves and others.

Another important aspect of storytelling is that when we hear a story we want to relate it to one of our past experiences. We search for a similar experience in order to connect it and make sense of it. That’s why metaphors are effective because our brain is searching for a cause and effect relationship of something we previously experienced as we hear the story and metaphors serve as a shortcut.

It turns out that when we are trying to convince people we are more successful if we tell them a story why it is the best thing to do because it activates the person’s brain in an area that turns the story into their own idea and experience. Even in legal writing storytelling is a more persuasive way of presenting an idea.

The more simple the story the more successful. To put it another way the more complicated the story the less successful the goal of persuasion. We too often, as lawyers, see things in a complicated, detailed manner. However, the listener has great difficulty with a story or presentation of that kind. The simpler a story, the more likely it is to be accepted and remembered. Simple language and low complexity are the best ways to activate the brain regions that make us connect with the story.

Another point of the article is that overused phrases and words that may have been effective in storytelling of the past have lost their effectiveness. Figures of speech like “having a rough day” are so familiar that they are treated simply as words and no more without any connection to the brain. We need to employ fresh phrases and words to activate the part of the brain we are trying to reach.

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WHAT TRIAL LAWYERS CAN LEARN FROM DONALD TRUMP

No, I’m not talking about politics. I’m talking about communication tactics employed by Donald Trump.

Omaha Nebraska jury consultant David Clark and I have engaged in an exchange of emails over a  long period of time about the general subject of communication and in particular techniques taught at the Spence Trial College. However, since the presidential campaign has become active, our communications have focused upon Donald Trump and his communication style. Not because we are particularly interested in his political positions but because we both recognized that he employed significant communication techniques most people ignored. While most people regard him  with intellectual distain and are  appalled by his verbal conduct, we believe there is a substantial amount of unrecognized communication tactics being used either knowingly or not. These are some significant techniques that we all should evaluate.

Most recently David shared with me some YouTube videos about communication in general. One video not involving Donald Trump I found particularly fascinating. It analyzed the powerful eye contact demeanor of Bill Clinton. https://www.youtube.com/watch?v=0o_EK4EjuEY This short video carefully analyzed why Pres. Clinton had such charisma in his eye contact with other people. I have observed too many lawyers, particularly in jury selection, who do an abysmal job with eye contact while talking to jurors. While the juror is still talking they are looking down at their notes and violating other basic rules of good eye contact. This video, however, analyzes what makes good eye contact with  illustrations of President Clintonhttp://Lessons from Donald Trump for Trial Lawyers and is worth taking the time to watch.

Regarding candidate Trump, David referenced two other videos I recommend. These deal with an analysis of the subtle but powerful techniques employed by Donald Trump and illustrates them in the videos.  One of them is https://www.youtube.com/watch?v=9LR6EA91zLo. The other video can be found at: https://www.youtube.com/watch?v=MvVfj0ov8k8. I believe both of these are worth the time to watch them.

There are a number of blogs and websites that discuss candidate Trump’s communication tactics as well.  Michael Maslansky has written an interesting analysis in this regard. It can be found at: http://www.prdaily.com/Main/Articles/Communication_strategies_from_Donald_Trump_20052.aspx he suggests that candidate Trump has used these five strategies to his advantage:

  1. He has a clear narrative, a master story that he sticks to
  2. He understands and taps into simple, emotional truths
  3. He speaks the language of his audience
  4. He reframes every debate question into language he prefers
  5. He is deliberately, decidedly different from his peers in both his style and approach.

Let’s look at a few of these. The master story he has created and continuously repeats is the slogan: “Make America great again.” That’s his master story and he consistently repeats that message.

The author says very correctly: “elections aren’t fought using reason; there fought using emotion.” I would insert trials are not about logic; they are about impression. The author says that the way to persuade people is to tap into what matters to them emotionally and Trump does that persistently.

Regarding the language of the people, this candidate ignores the complexity of political conversations and uses every day talk people understand. I would point out that it’s the role of the trial lawyer to eliminate big words, acronyms and complex sentences with short and simple communication.

As  to putting things  into language  he prefers, we all know the need to frame issues  correctly  and  put them into language  that favors our position.

Consider the idea of being decidedly different from his peers. We know  that in trials the first lawyer who looks,  sounds  and  acts  like a sterotyped lawyer loses. Our  job  is to be part of the tribe of  ordinary people on the jury and unlike our opponent.

The creator of the cartoon Gilbert, Scott Adams has an educational background in psychology and communication. He has written a very insightful article analyzing this subject involving Donald Trump. http://www.inc.com/peter-economy/the-6-persuasion-secrets-of-donald-trump-according-to-dilbert-s-scott-adams.html  here are some of his points:

  1. People are not primarily rational but “irrational” in their thinking process. As Adams points out people are not wired to be rational but rather have evolved in order to keep us alive.
  2. This fact is directly related to the power of appeal to emotions. Adam says that Trump completely ignores reality and rational thinking in favor of emotional appeals.
  3. Adams observes that when you appeal to emotions, the facts don’t really matter. He says:

“Trump knows psychology. He knows facts don’t matter. He knows people are irrational. While his opponents are losing sleep trying to memorize the names of foreign leaders in case someone might ask, trump knows that that is a waste of time. No one ever voted for President. based upon his or her ability to name heads of state. People vote based on emotion, period.”

  1. He has mastered identity politics. Adam says that when you are identified with the issues of Americans they are committed to you. Adam says that: “identity is always the strongest level of persuasion.” I would note that when we connect our case to the strong value systems and underlying driving issues in the case we have captured the jurors involved.

I  think you will find the videos beneficial and I recommend the next time you decide to watch Donald Trump do so with these observations in mind.

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