Author Archives: Paul Luvera

DON KEENAN’S THE KEENAN EDGE 2 – A book you should own

Don Keenan has been my friend for 25 years. We are both past presidents of the inner circle of advocates, one of the nations most prestigious plaintiff trial organizations. We have also shared a lot of ideas about plaintiff trial work. I listen to what he has to say. One of the reasons that I have placed on lot of credibility in Don is he has always been on the cutting edge of communication and persuasion. Like me, he has a curiosity about what works and what doesn’t in our profession. In addition, I agree with him about most things relating to plaintiff’s trial work and in particular human decision-making.

Don’s numerous awards, honors, professional accomplishments and significant cases are too numerous to list here. The highlights include the fact he has appeared on every major national news program, received most of the significant awards for professional and community work and has served as an  officer or president of the most significant trial organizations. His record of million-dollar verdicts and settlements stands alone.

His popular blog, the Keenan trial blog: ,http://www.keenantrialblog.com/ is a must read for those of us who are trying to improve our trial skills. Don has now published a second collection of  selected blog publications in: “The Keenan Edge 2.” This book is available at the special price of $63.75  For more information see:  http://www.shop.reptilekeenanball.com/products/the-keenan-edge-2-pre-order.html 

By way of the disclaimer I should point out that Don was kind enough to include a couple of contributions I made to his blog, but I have no financial interest in it. The reason you should be familiar with this book is because it has leading edge information about what works for us doing plaintiffs trial work. It won’t substitute for attending one of the many seminars he and David Ball put on regarding witness preparation, discovery or trial, but it is an excellent collection of  great communication and trial ideas.

As an example, there is a section in the book about something I feel passionate about.  That is my belief it is to prove not just negligence but motive. A trial is a battle of impression and not logic. As Don says in law school you were taught that if you could prove liability causation and damages you won. He writes:

“If you could establish all three, then “shazam!” Like Gomer Pyle, a plaintiff’s verdict would certainly appear.”

Nothing could be farther from reality.  Only uninformed  lawyers  and mediocre judges believe that anymore. Yet that’s what we were taught as law students and what is believed by plaintiff lawyers for too many years. As Don puts it: “every case must have a MOTIVE unless the case surrounding the defense is substantiated by outrageous facts or you have an unlikable defendant.”

Don and I also agree about something that not everyone would join us in agreement about.  We both feel partial settlements shouldbe avoided as much as is possible in all cases.Don’s characterization is: “partial settlements: the self-inflicted wound.” I’m with Don. And we both agree that it doesn’t make a difference even if partial settlement is with just a peripheral defendant. There are too many downsides. An obvious defendant who is not in the case allows the jurors to speculate and assume you already collected money or have not done something right. And allows into many cases  the remaining defendants to point their finger at the empty chair. It opens the door to legal issues that could complicate the trial and your ability to collect the verdict.

Other helpful sections involve: negative attribution, focus group studies and voir dire. There is just enough information to make a point without a lot of extra complicated ideas.

Of course, Don talks about his copyrighted Reptile concepts, but this book is more than simply a rehash or extended discussion of that subject.

I also like the contributions made by other lawyers about their cases and how they handle issues.

We have a lot of ways to spend our money on instructional materials. This one is a good investment. I thought it was a valuable addition to my library, but if  you are unhappy with the book ask Don  for the refund, not me.

THE COMPETENCY OF TRIAL JUDGES

A long time attorney friend of mine who was an outstanding trial lawyer until his retirement recently pointed  out to me his concern that we seem to have numerous superior court  trial judges  in this state who simply aren’t experienced enough or qualified to do a competent job as a trial judge especially in jury cases.

What are  the minimum requirements to be a superior court judge  in  Washington state? Well, our constitution, in Article IV Sec. 17, says that to be eligible for the Supreme Court or Superior Court one must be admitted to the bar of the state.  That’s it. No age requirement. No educational or experience or proof of competency requirement. Anyone who is a lawyer can file for election to become a Supreme or Superior court judge. Any age. Any experience or lack  thereof.  You  just have to be a lawyer.

There is a judicial rule that once elected the judge must Complete the Washington Judicial College program. And, there is a requirement for 45 CLE hours over three years. The Judicial program takes a few days to complete. The National  Judicial College in Reno, Nevada has judicial courses to train judges. Three great plaintiff lawyers I know very well are involved in that College, Robert Parks, Jim Bartimus and Steve English so I know anything they are teaching would be top flight. However, there is no other requirement for either qualifications or training for a judge to be elected in this state and no requirement for full adequate training at the college on a madatory basis

For years there are those in the legal field who have been arguing that our elective system for judicial selection should be replaced with a commission system. The commission would consider applicants for a judicial office and recommend three to the governor who must appoint of the three. At the election the voters would decide whether to retain the judge or have another appointed.

There are those who feel the  elective system is the only fair system which avoid possible political wrong doing  in the selection of  judges. On the other hand, we have witnesses powerful special interest groups pouring millions into the judicial elective system trying to target judges they disagree with and putting their own type of judge on the bench. The most  recent gross  example of this was the supreme court election in Tennessee  where judges were unsuccessfully targeted by big money interests.

Isn’t ironic that in this state, if not all states, a criminal defendant is entitled to effective counsel.We have seen convictions reversed and even trials stopped because the judiciary has found that the trial counsel wasn’t competent. But, what about judges competency to hear cases?  The only real monitoring of the competency of judges is by appeal and review of the record for reversible error. We all know that only a small number of  trials result  in an appeal and we  also know  that too often the transcript and record is inadequate to fully illustrate what happened during the trial involving the competency of the judge.

The reality is that unless there is some screening  process for judicial competency the people can vote a judge into office who hasn’t the experience or qualifications to be an effective judge.

There really is no screening or monitoring of the performance  of judges. Yes, there are websites that seem to be focused  on issues  involving trial judges  in Washington like www.superiorcourtjudgesassociation.com and other websites. However, I’m not aware of any real monitoring  of the judiciary other than the Commission on Judicial Conduct. But, let’s face it, this body doesn’t evaluate day to day judicial ability to conduct trials with competence and experience. It punishes reported wrong doing after something rather ethically wrong has happened.

What is the  reality of the superior court judges in  this  state? Many judges get the position by appointment from the Governor. There is an informal screening of such applicants and there are opportunities to comment, but on the  whole it is a political  process which means it is  not done on an objective basis regarding real qualifications to serve as judge.

Those who file  for  election differ from the historical tradition of who ran for superior  court judge. It used to be that lawyers practiced until they felt the urge to retire and then ran for office. The result was  that a majority of trial judges had years  of  experience before they went on the bench.

That is not the current situation and  hasn’t been for a long time. We have judges who have never tried  a jury case. We have judges who have had virtually no trial experience whatsoever. We have judges who are  on the bench at a very young age. We have judges whose inexperience and  lack of understanding about civil litigation results in bad rulings and conduct which exhibits their having an agenda in cases which influence their  rulings.

As a result we have a significant number  of superior court judges who are only  marginally qualified to be a trial judge. When experience identifies such a judge the trial lawyers file disqualification motions if they are appointed  to their case, but this isn’t a practical solution to the problem. There are counties like King County where  the lawyers rate judges, but that system isn’t entirely fair  or accurate. In addition, there is no real sanction except an opponent could cite the vote in an election.

That  is not to say we don’t also have truly outstanding trial judges that are above  average in their ability to act as a judge. They are well known to the experienced trial lawyers who wish they could try  all their jury cases in front of  judges like this.

We have an uneven judicial system when it comes to trial judges. We  have some great ones, some  good ones and some who should never have been allowed on the bench. Over the years I’ve tried cases with each of these kinds  of  judges. However, there is no real effective means of dealing with this given our constitution. The proposal of  a commission is at best controversial. The elective system is subject to both error and manipulation by money contributions. I wish I had a solution to offer, but I don’t. I only point out the reality as I see it. Maybe you have a solution. I do think it needs discussion.

MISCELLANOUS ARGUMENT CAPSULES

I’m reviewing my notes about argument and decided I’d share some. These are just summaries and a mixture of concepts in raw form. You would need to expand and improve each of them, but maybe there are some ideas here that might be helpful to you.

  • When this courthouse was planned they didn’t just pull a number out of the air for the cost of construction. Instead they calculated each of the items that go into the construction and added it up to determine the total cost. The same thing is true when we go to a supermarket to shop. The clerk doesn’t take a look at the items you put on the counter we collected and say “Oh, why not $120?” No, each item is rung up and totaled. We pay the total of each item. When an injured person comes to a jury for an appraisal of the proper amount to account for their  injuries the same process should be followed. Each of the elements of damage should be weighed and appraised based upon how serious it is and how long it has and will last and not just pick some lump sum number that sounds right.
  • While the total amount I have suggested to you for a verdict in this case appears to be a lot of money, and it is, we have to consider it the same way we consider buying our home by mortgage payments. Our payments are made monthly over a period of years and not just a lump sum paid all at the same time. I wish I could tell you that we could come back each year and report how Joe is doing to determine the amount for  that year for his pain and disability, but the law requires it to all to be paid at one time so we have to fix the amount for now and forever in one verdict.
  • This case is like a car that has been damaged in a collision caused by somebody else. However they don’t want to pay the full repair bill. In  fact, they don’t want to pay anything and if they do have to pay it the only want to pay part of it and not the full bill.
  • There has been talk here by defendant’s lawyer  about the plaintiffs health and physical condition before the collision.  He wasn’t in perfect health, who is,  but he was functioning just fine. Suppose a farmer had 100 dozen eggs in the back of his pickup truck. Suppose they are all broken  on the way to market because of another car crashed into his pickup.Now wouldn’t you think the defense lawyer in that situation would be out of his mind to argue you should not pay the farmer for the eggs because if they had been golf balls not one of them would’ve been broken.  The defendant doesn’t have the right to make that argument. The defendant must take people as they are and as they find them. They are obligated to pay for the damage. Suppose they were not eggs, but it was a horse in the back of pickup. The question would be what kind of a horse was it? A plow horse or racehorse. Was it Nashua the day before he was sold for $1,200,000 ? If it was Nashua he was worth $1.2 million dollars. Shouldn’t  the defendant have to pay the for the entire damage  caused?  But,  what you say about oil painting that was destroyed in the collision and was worth $5 million? Doesn’t  the same thing apply? The defendant is obligated to pay for the damage done, in full.
  • Suppose a farmer is driving his old pickup truck and another car runs a stop sign it and damages the truck. The farmer is not injured but the fenders are bent and the windows are broken in his truck. The jury wouldn’t have much trouble determining the proper amount to compensate. You would say give him the kind of truck he had before it was in the collision. He’s not entitled to a new truck because it wasn’t new, but he  is also not required to drive around with the truck with smashed up fenders and a broken windshield because it didn’t have that either. A fair result would be the cost of putting the truck back in the same condition it was before the collision. That’s what you need to do in this case.
  • A hospital is supposed to be a place where we are safe and carefully cared for so we can get better.  You’re supposed to be guarded. You’re supposed to be watched over. You supposed to be protected from any additional harm. This was not a hotel. It is a place that supposed to be staffed by people who are trained to watch over and attend to the needs of patients. When they fail to do that they have failed to do their duty. If a hospital is not prepared to treat its patients properly it should not admit the patients and take their money. If it does,  it says to the people they admit that by taking their money and admitting: “you may come in and stay here.  We are prepared to care for you and take care of you and help you become well again.”
  • When life or liberty is in the hands of the lawyer he or she realizes the terrible responsibility that they have. They fear some word will be left unspoken or some thought will be forgotten to be said. I would not be telling you the truth if I told you that I did not fear the results of this important case. Not because of you but because of my failure to do what is expected of me. When my judgment and reason take counsel with my fears, I am even more afraid. (Clarence Darrow)
  • There are hundreds of lawyers in this state and for some reason fate has picked me to be the one to represent this deserving person. I’m scared to death that I may not do it right. But, together, you and I are going to make history in this case by doing the right thing.
  • your verdict means something in this case. It means more than the fate of this man. It is not often a case is submitted to 12 people where the decision may mean a milestone in the progress of medical care but this case does. I hope and trust you have a feeling of responsibility that will make you do your duty as citizens of this great nation and is members of the human family in this community and accomplish great things by your verdict.
  • He was a fragile piece of china – a cracked vase. Nevertheless he was functioning until the harm that the defendant did to him took place.
  • (Gerry Spence talking about representing the people who were objecting to drilling projects for oil in an environmental sensitive area of Wyoming) “Were going to drive the snakes out of the garden of Eden.”
  • The smallest drop of water when constant can penetrate the hardest of stone.
  • A fence at the top of a hill is better than an ambulance in the valley below.
  • “So then, the eye cannot say to the hand, I don’t need you. Nor can  the head say to the feet, well I don’t need you….And so there is no division in the body, but all its different parts have the same concern for one another. If one part of the body suffers, all the other parts suffer with it… ” (1 Corinthians 12)
  • it is obvious that this is an injury not just to this plaintiff but to his family unit. You cannot injure one member of the family, particularly the head of the family, without injuring the whole family unit. It is like throwing a stone into a pool of water. Waves are sent out further and the waves get larger and touch the lives of people around the plaintiff. It affects the children and the wife and everyone they come in contact with. It puts a strain upon the emotional bond the family unit.
  • The amount of care that is required by someone depends upon the circumstances. If you were loading potatoes into a truck and were throwing the sacks into the back of the truck, you wouldn’t be too concerned if you let a potato or two fall on the ground. On the other hand, if you  were loading dangerous explosive material, think how carefully you would place it in the back of the truck and how carefully it would be stored. Both acts would have  been done with ordinary care. Ordinary care in loading potatoes and ordinary care in loading a dangerous explosives are two different things. In this case the defendant was handling a dangerous instrument and should have exercised that amount of care that it called for.
  • Don’t we all believe that: all men and women are entitled to be treated equally under the law; all men and women have a right to the pursuit of happiness; thrift and hardware should be rewarded; people should bear up under diversity to the best of their ability; justice should be available to everyone and if a man owes a debt they ought to pay it full to the penny.,
  • Suppose you are shopping for car at a used car lot. The salesman tells you that this car that he’s recommending was in a wreck, the frame was bent and it was damaged but now it’s all been straightened out  and everything has been fixed. Even though the damage been repaired and the car looks great we know it will never be as good as before it was damaged. People people aren’t cars and damage to our bodies and minds are long lasting.
  • We can put people in prison  and we could even put them to death for their crimes, but we are never allowed to injure or torture people.
  • Jurors, you are the community and you set the standards for this community. The owner of the store says to people: “come into my store and buy something.” He doesn’t say: “come into my store and watch the floor while you walk around for anything dangerous that might make you slip or fall.” That’s because there’s nothing to buy on the floor. No, he says: “come in, don’t worry about the floor. I’ll take care of the floor, look up the shelves for something to buy.” When the store owner distracts your attention from the zone of danger on the floor, the patron should not be held liable. Otherwise  the store owner should be required to put the merchandise on the floor instead of on the shelf. I say to you that if this defect was one foot  higher Joe Brown would’ve seen it. People in the store are entitled to have things on their mind and to be distracted by the merchandise and trying to get them to buy something. It is the store owner who has the duty to look down and to inspect and to protect patrons from injury.
  • The defendant always argues that the defect is too small or too large that caused the plaintiff  to fall. They argue that the defect was too small for the defendant to have seen or noticed or been concerned. Or they argue that the defect is so big the plaintiff  should have seen  it. The defect is never just right. It is always too big or too small. I’ve never had a case where the defense lawyer concedes that the defect was just the  right size.
  • The defense would like you to believe that the 45 minutes their hired defense doctor examined the plaintiff was the most important 45 minutes of the plaintiffs life. They want to ignore the testimony of family friends neighbors and others who have been involved with the plaintiff over the past months. They want you to believe the many hours the treating doctor saw the plaintiff wasn’t important. Does that make sense to you?