“A physician is not liable for selecting one of two or more alternative [courses of treatment] [diagnoses], if, in arriving at the judgment to [follow the particular course of treatment] [make the particular diagnosis], the physician exercised reasonable care and skill within the standard of care the physician was obliged to follow.”
Here are some ideas for dealing with the issue. Consider the following questions, for example
Q. The standard of care requires that before a doctor makes a decision about what to do, the doctor must first make a careful history, correct? (This question is not to connect with jurors too much, but it does set the stage up for the next question, which can be the best question of all.)
Q. Then the doctor must listen carefully (or just “listen”) to what the patient tells him. Correct?
Q. And I don’t mean it goes in one ear and out the other. I mean it goes in one ear, and then the doctor must THINK about what his patient has told him. Don’t be rushed. Don’t just leap! at a conclusion. Carefully THINK. And remember that every patient is different.
Q. Then the doctor must order some tests reasonably indicated to help in the decision process. The doctor must test, don’t guess. Can we agree on that?
Q. And if the doctor fails to do any one of these things, the judgment can be wrong. Do you agree?
Additional approaches to the issue include the following:
Another challenge we are often faced with are issues involving the client which is likely to produce an immediate negative reaction with the jury. It can involve issues of appearance, past personal history or race. Religion is an example of a issue that can be a factor that has to be dealt with both in voir dire as well as opening statement.
The amount of the verdict you are seeking is another subject for opening statement as well as for voir dire. Whether a specific amount or a general range it should be a subject for opening statement. As part of the damage presentation. What is offer here is an simple illustration as a as an example of presenting this to the jury.
There are a variety of ways of going about this in the opening statement. Here is an illustration from the transcript of a trial. This 2008 jury case was tried in Snohomish County. It involved heart bypass surgery where a medical instrument suddenly overheated and burned the patient’s heart. The verdict against the device manufacturer was $41,100,000.00.surgery. While this example is limited by the type of case as well as to the time of trial, it illustrates one approach to dealing with the principles of opening statement concepts. Keep in mind these are excerpts from the entire opening and from the trial transcript involving damage issues.
Introduction to Case
“Court: You may proceed Mr. Luvera
This is a man who had a mild heart attack and went to the hospital where they found he had occluded arteries and they did a bypass. You all understand a heart bypass is where they bypass the occluded or blocked arteries and blood supply with a piece of tissue they take out of arms and other places. It is used as a substitute to go around the blockage. That’s what he went into the hospital for. It was a fairly minor heart attack. Before the bypass his cardiac function was pretty normal even after the attack. When the bypass surgery was completed, it should have been a success. In other words, this operation should have lasted a little over two hours, he should have been in the hospital three or four days, and he should have walked out. Afterwards he should have been Bill Clinton or whoever it is you know that is functioning with a bypass procedure, leading a fairly normal life. That’s how this all started but it had a tragic ending. The catheter burns his heart while he’s in surgery and he has to have a heart pump temporarily inserted. He is transferred to the University of Washington and put into a chemically induced coma while waiting for a heart transplant to become available. After weeks of waiting a heart becomes available and is surgically implanted along with the peacemaker.
The Issue of Plaintiff Religion Sikh
As we discussed in jury selection, the family belong to the Sikh faith. They are not Muslim but Sikh. In the Sikh religion and Indian culture, the family unit is an extremely important aspect to their life. They even call their relatives uncle and brother when they are not really uncle and brother. There is a strong family relationship involved. And I might add, because you may be curious, the Sikh religion, is a religion that is highly tolerant of other religions and uniquely believes that men and women are totally equal. This case involves the whole family. The family is made up of the father Paramjit, who I will call Parmee, and is 54, He became a U.S. citizen. He had a child from a previous marriage who is 27 and has a grandchild who is 4 years old. He married Harmeet, who is seated here in 1955 in Vancouver and they have two children, Harmanjot, who you met the other day, who is 11, was born in 1996, AJ who was born in 2000 and he is 7. Harmeet is a very interesting person. She was born in 1967 in India. She moved to the United States in 1992. She too studied and became a citizen of the United States, was naturalized in 2000. Her previous husband died and she met Parmee and they married. They had a child called Preet, who was born in 1991.Preet is an extraordinary child, she speaks several languages. She is a straight A student and very extraordinary. Without going through an adoption, she is as much a child of the family as the other children. They have a very close relationship. So that’s the family.
Introduction to Burden of Proof & Damage Concepts
In a trial like this, when we are talking about damages and harm, the test is for you to decide whether it is more probably true than not true. That’s all that’s required. Jurors, in making their decisions on the evidence, on the issue of harm and damages, do so on the basis of: Is it more likely true than not true?
In order to understand what happened we have to viewpoint the evidence –we have to view the evidence from three different time periods, the past, present and future. The past being everything that’s happened up to this moment. The present is the situation now. The future being everything that will happen from now until he dies.
There are two kinds of damages when we are talking about harm. One is economic losses. Those are the bills. Those are the amounts that it takes to pay back other people that are owed. The economic harms consist of the past medical and other expenses to tell you based upon the doctors what it costs for all the things the doctors say are required. The other is non-economic losses. That’s making up for the things that can’t be repaired or restored –you can’t fix. That is all the things that go into the idea of what does it means to have your life turned upside down.
Economic loss involves things which will sound insulting because we don’t need a jury in a sense. We could use an adding machine, it’s a matter of adding up bills. The thing the jury has to resolve is what bills we are talking about, what’s fair to be included in those bills. It partly depends upon how much longer he will live. Nobody knows. He might live a normal life
expectancy. The only person who knows is God. But this is for you to evaluate. You are not bound by anything they tell you.
Elements of damages
And what happens is, at the end of the case, the judge will give you written instructions on what you are to consider. And I’m taking the liberty because everybody agrees these are the elements and telling you now. The non-economic harms that you will consider here past and future are the loss of enjoyment of life, including shortened life expectancy. The major and primary loss involved in this case is the loss of enjoyment of life. Parmee was a very, very athletic kind of a guy, and loved family and loved his friends. They all got together a lot but all of that has changed. He has a shortened life expectancy. He worries about infections. His health has been ruined. That’s just all there is to it. -his health and his life have been ruined.
He has a dependence now on the family that was not there before. He has low energy. He tires easily from all of this. And he has — I don’t want to make more of it than is there, but he tells me that he has nightmares. And I don’t mean to suggest to you that these are terrifying to him but they are very upsetting and continuous. It apparently is a peculiarity of all the medications. He has these very strange nightmares that affect his sleep. Another damage element is disability, that is those things he can’t do now, he could before. The element of disfigurement is another factor you will evaluate. I’m talking about surgical scars –I don’t think it’s the major issue in this case, but he has scars that go from here to here from the surgery. That’s what disfigurement means. The loss to the marital relationship and to his children is significant. The law refers to this as loss of consortium.
Mental pain & suffering. Now, mental suffering is very different than physical pain. Mental suffering is, in his case, is the loss of a role in the life that you live. You are a husband, you are a cook, you are a –you support the family, and having that role be taken away or changed changes your life. It is how we see each other and ourselves, our self-image . It is how, in a family particularly — in this family, in a close knit, loving family that extends even out to relatives, the injury like this just ripples out and affects everybody in the relationship. That’s mental suffering.
As to physical pain, he doesn’t have an extreme amount of it now, but he sure did. So, our evidence of harm will be by three factors. We will approach this –our evidence will approach it from how bad was the harm, how long will it last, how much does it interfere with the enjoyment of life. So, the verdict amount, under the evidence that we will suggest to you, will involve the difference between what should have been had this had not happened and what it is now. And here is how I’m going to approach it. The verdict has to be a fair verdict and it has to be a reasonable verdict. Fair and reasonable. Okay. It must include the economic losses. It has to take into consideration the nature and extent of the injuries for non-economic involving the elements I just talked to you about, plus this element. It must consider the loss of enjoyment of life he has suffered. And when that’s done the amount of money must balance perfectly against the harm. It’s just that simple. And he’s entitled to full and complete remedy for what’s been done to him. And I’m going to show you how I think you should go at that when I have a chance at the end of the case and hope to resolve all of the doubts you might have about this.
The Amount of the Verdict
You know from our discussions during jury selection, in our judgment a fair and reasonable verdict is many millions of dollars when the economic bills and losses are added to the non economic loss of enjoyment of life coupled with the law regarding damages. At the end of the case I will offer you a method for analyzing this using the law the judge will give and the verdict form you will fill out.
CONCLUSION
The basic legal rules applying to damages should be made clear to the jury as early in the case as is possible. Opening statement is an opportunity to do that. The fundamental legal concepts include some of the following: (1) There is only one opportunity to present the case for a legal remedy. The verdict must cover the past, present and future losses over life expectancy (2) there is a total difference between economic and non-economic damages (3) the elements of damage applicable to non-economic damages can include – the nature and extent of injury, loss of enjoyment of life, disfigurement, disability, pain and suffering, mental and physical as well as consortium in an appropriate case. All of these factors, along with liability and the evidence supporting these losses are an important part of the opening statement.
The post OPENING STATEMENT DAMAGE CONCEPTS first appeared on Plaintiff Trial Lawyer Tips.]]>https://www.propertycasualty360.com/2023/07/21/what-are-nuclear-verdicts-and-why-are-they-occurring/
Nuclear verdicts are a relatively new phenomenon in the insurance industry. The term “nuclear verdict” refers to any court award or settlement that is higher than expected, but legal experts officially define a “nuclear verdict” as one that exceeds $10 million. These verdicts often include disproportionally large non-economic damages awards, but the real hallmark of nuclear verdicts is juror anger.
A large verdict is often a jury’s way of making “an example” out of a defendant to take some power back and slow this trend. The challenges of the pandemic years have also illustrated bad behavior on the part of some corporations by exploiting inflation, supply chain problems and staffing shortages, as well as appearing to use the pandemic as an “excuse” to provide poorer/lesser/more expensive services. The result is that many jurors extrapolate these examples as applicable to most, if not all, corporations, leaving a bad taste in their mouths. Anger towards corporate behavior like this has become so prevalent in fact, that we now see legislative efforts aimed at dealing with these issues (for example, the “No Surprises Act” which limits or prevents surprise billing in the healthcare insurance industry).
Jurors’ anti-corporate attitudes are also driven by a growing sentiment among many U.S. citizens that things in the country are off track or going “in the wrong direction” (general unhappiness/discontent) as well as in response to the reptile strategy.
The nuclear verdict trend continues to be perpetuated as jurors hear about other cases with large awards; these once-extreme verdicts become normalized and begin to set a new standard for what juries consider to be reasonable, and the growth of the social media landscape has amplified this effect. This is particularly true as inflation continues to progress at a higher-than-comfortable rate for many jurors.
https://www.travelers.com/business-insurance/large/casualty/whats-driving-huge-jury-awards
There is a growing belief among society that companies should take full responsibility for the safety of their products and services, and workplace injuries no matter how impractical or costly, and ensure the safety of their products–even if the customer is injured while misusing a product.
A DecisionQuest study from 2018 that interviewed potential jurors really drives home how society views large companies today:
The report, which looks at the trends, drivers, and types of cases leading to nuclear verdicts, found:
In an age of general corporate mistrust and one in which athletes and entertainers make hundreds of millions of dollars, lottery jackpots soar to a billion or more and social media influencers rake in millions, jurors aren’t restrained by the shock value of huge awards, Kirsh said. Pair that cultural shift with the boom in plaintiffs’ attorney advertising that touts the opportunity to land a jackpot award and the drivers of social inflation become clear, he noted.
Some insurers and defense counsel have proposed that one factor influencing nuclear verdicts is that younger generations do not value money in the same way that older generations do. Of course, it is likely that each generation, as they age, believes the younger generation does not value money as they should. At the same time, we found it worth testing this hypothesis and determining, scientifically, whether one generation is statistically more likely to award higher damages than another. The present authors collected data from 1,100 jury eligible individuals who served as mock jurors in personal injury matters during 2020.
Generation alone is not likely to predict a juror’s leaning toward the plaintiff or the defense. The results of the analysis revealed that there was no statistically significant difference in damages when comparing generations. Thus, Millennials cannot be blamed for recent nuclear verdicts. This finding should actually be a relief given Millennials make up nearly a quarter of the population. Thus, if you tried to strike all Millennials during voir dire, you would need more peremptory challenges than are typically allowed!
Therefore, during jury selection, it is much more effective to identify jurors who are experiencing high levels of stress than to make strikes based on an assumption that one generation has a tendency to award higher damages than another.
Jury pools have changed dramatically. Today’s jurors are younger, with Generation Z (26 years old and younger) serving in higher numbers than ever before while jury service from all other generations is in decline. Today’s jurors reflect our more polarized society – with more firmly held beliefs on politics, social causes, and perceived injustices than in the past. They are also more likely to act on those beliefs by delivering their own sense of justice.
The result? An explosion of “nuclear verdicts,” which are verdicts greater than $10 million. In many instances, these verdicts include huge sums for pain and suffering and massive economic damages that appear to be intended to “send a message” to a perceived wrongdoer, even when no punitive damages are awarded massive economic damages that appear to be intended to “send a message” to a perceived wrongdoer, even when no punitive damages are allowed
Orrick’s trial team surveyed more than 1,000 potential jurors from jurisdictions around the country, including the jurisdictions that are home to the largest verdicts. The results of this survey provide key insights into best practices for connecting with today’s jurors.
Consistent with declining trust in institutions, jurors are increasingly willing to turn into activists and take the law into their own hands.
Jurors are also more willing to make snap judgments, even when they know nothing more than who the parties are. Before the pandemic, when asked hypothetical questions about who they would favor in a lawsuit in the absence of any specifics about the case, most potential jurors said they would remain neutral. After the pandemic, most jurors pick a side, and overwhelmingly side with plaintiffs.
One of the most pronounced trends in the data, across all of the studies is a general lack of trust.
Consistent with declining trust in institutions, jurors are increasingly willing to turn into activists and take the law into their own hands
Jurors are also more willing to make snap judgments, even when they know nothing more than who the parties are. Before the pandemic, when asked hypothetical questions about who they would favor in a lawsuit in the absence of any specifics about the case, most potential jurors said they would remain neutral. After the pandemic, most jurors pick a side, and overwhelmingly side with plaintiffs.
Today’s jurors are more polarized and more willing to allow their biases to influence their decisions. But they also have more in common than you, or they might think. Most potential jurors agree that there are “universal” concepts of right and wrong, which have “clear and consistent distinctions” between them. Most potential jurors also agree that “making an emotional connection to the subject matter and the people involved in the trial would be important” before they could make “a fully informed decision.” We believe that winning trial teams of the future must be able to create these emotional connections, giving jurors comfort that the desired verdict meets their understanding of the “right” outcome.
CONCLUSION
These trends have importance in how plaintiffs should present their case. Understanding today’s juror is even more important, given this information, than before.
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To understand how to present evidence of our client’s injuries, we must first understand what the injuries have done to our client. That requires an advance understanding of the nature of injuries and time spent with the client plus those who know or treat the client. Here is a brief outline of the basic impact of injury and sufferings on human beings as a guide.
A. INJURY CAUSES MENTAL AND PHYSICAL SUFFERING TO PEOPLE
a) Hopelessness
b) Torture of mind & body
c) Worry
d) Depression
e) Fear & shame
2. Loss of independence
3. Loss of control over their lives
4. Loss of hope for a normal & happy lives
B. INJURY EFFECTS THEIR VIEW OF THE PAST
1. We are a product of our life experiences
2. Injury & suffering result in an unhappy past
C. INJURY EFFECTS THEIR LIFE ROLE
1. All people have a role: They are a wife, mother, and husband, employee which help define who we are & give us purpose. Injury forever alters our roles and impact who we are.
D. INJURY EFFECTS RELATIONSHIP WITH OTHERS
1. People exist in relationship to each other. Our relationships give our life meaning. Injury changes and impairs our relationships with others which impact who and why we are.
E. INJURY EFFECTS RELATIONSHIP WITH OWN BODY
F. INJURY EFFECTS OUR CREATIVE ABILITY
1. People do creative things. They have hobbies, they pain, and they read, garden and enjoy creative activities. Injury impairs or destroys our creative activities.
G. INJURY TAKES AWAY OUR DREAMS AND GOALS
1. Everyone has secret dreams and goals – a secret life with dreams, fantasies, hopes and goals. Injury robs us of our future dreams, hopes & goals
Using this kind of an outline, take the time for an indepth review of the details of injury plus the impact on the client.
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There are many factors that impact the accuracy and validity of epidemiologic and statistical studies. Some of the more important ones involve these:
1.In dealing with statistical medical issues, one problem is that unlike other sciences, it is usually impossible to make exact calculations. While the laws of physics allow exact calculations, in medicine, such exactness is rare. Instead of exactness, medicine usually has to look at “statistical relationships “that apply to average situations. Statistical relationships may hold true on average but not in every case. For example, tall people tend to weigh more than short people or older children tend to be taller than younger children. However, one cannot therefore conclude that in every case tall people are heavier than short people or that all older children are taller than younger ones. In addition, statistical significance is not the same as medical significance which deals with the exercise of medical judgment. Something important to a physician’s medical judgment based on experience may not be statistically established in medicine. Many problems in medicine are medically treated even though there is no statistically accurate research to dictate the treatment.
2.“Statistical confidence” refers to the degree of certainty that a particular outcome can be predicted for a conclusion. In medicine there are limits for drawing accurate associations between a variety of medical findings. The accuracy of making associations depends upon a proper foundation for comparison Statistical confidence requires a foundation for the study that is appropriate and the correct size. If the foundation is faulty, false conclusions can be drawn from studies that appear valid.
3. Experience has shown that statistical studies are subject to “investigator bias” that influences the outcome of a study. The sponsor of the study or the person conducting a study may have a strong self-interest motive regarding the outcome of the study. This bias regarding the hoped for outcome may consciously or unconsciously effect interpretation of data and study results
4. Some studies have used a small sample portion taken from another larger study. Taking a smaller sample from a larger group allows one to wrongly argue the whole group has the same characteristics as the sample group when that is likely untrue. Doing so makes the study unreliable because it invites misinterpretation.
5.The size and makeup of the study group is directly connected to accuracy of the finding. An epidemiological or statistical analysis study has to have an appropriate make up for the study involved. It is possible to have two investigations conducted with the same methodology but resulting in conflicting results due to the size and the subjects selected for the group. Examples of this problem have been illustrated by studies published in reputable medical journals regarding the same medical issue but resulting in conflicting conclusions due to the group used in the studies.
6. In evaluating statistical evidence, there are a number of factors to consider. In preparing for epidemiology and statistical evidence here are a few issues to consider. These subjects involve factors that can influence conclusions:
In addition, to those questions, consider the following subjects as well. When evaluating the accuracy of statistical conclusions, it’s important to ask a range of questions to ensure that the conclusions are reliable. Here are some questions to consider:
1. Sample size and representation
2. Data collection
3. Measurement and variables.
4. Statistical methods
5. Replicability and peer review.
6. Publication bias in reporting
7. Alternative explanations.
8. Longitudinal and cross-sectional studies.
9. Control of Variables
10. Ethical considerations
CONCLUSION
The use of expert testimony and evidence of statistical findings is commonly involved in our trials. Evidence regarding issues of proximate cause, causation and negligence often involves statistical studies. It’s important to understand the subject and prepare in advance if we are going to properly represent our clients.
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When you are faced with handling a case with major personal injuries, a different approach from a less serious damage case should be considered. Among the many issues involved in major damage cases, here are a few basic rules I followed. Not every lawyer uses the same approach, but here are the fundamentals that worked well for me.
My first rule in major damage cases was to apply Shakespeare’s advice:
“To gild refined gold, to paint the lily, to throw perfume on the violet…is wasteful and ridiculous excess.”
My experience was that the most successful approach in these cases was providing enough information to the jury so they can picture the full situation but not a complete review of the injuries. There are a number of ways this can be done, depending upon the availability of quality witnesses, the nature of the injuries and the circumstances. Here are some I found effective:
1. An impressive treating doctor or a credible cost of care expert can provide compelling background information, but I don’t think should be the primary fact witness about the impact of injuries
2. A carefully edited video of the steps required in the care of the patient can be helpful with supporting testimony of care givers, but only if brief and well done. My day in life videos were never longer than 10 minutes. I would not use the historical day in life video that virtually covered morning to night patent care. What you should want is enough information to make the juror understand the nature of injury and what a burden the full picture must be and let them imagine the true reality.
3. An animation can be helpful for specific facts in the care or injury, but must be very brief and simple
4. Illustrations, either photos or drawings, can be more impressive than video or illustrations especially when very uncomplicated illustrating only one fact. I have followed a procedure of showing a photo to a witness and asked what is illustrated in a step-by-step examination.
5. Nonfamily supportive care givers are seen generally as more objective and credible than family members. They can provide both information & paint family care givers as a caring “hero.” I have used different care givers to describe different aspects of care they are involved with to break up the needed narration.
6. Articulate family members are a necessity, but only brief with a self-deprecating message that they don’t see their care as a burden as they love the patient and have hope that perhaps the doctors are wrong and there may be improvement. These are key witnesses who need to testify without crying or self-pity demeanor. As you know, if you watch the evening news interview of someone who has suffered a loss, who cries through the interview, you feel uncomfortable, you can’t understand what they are saying and there is a general adverse reaction. People who are obviously in distress over a loss, but who describe the situation, not from their standpoint of self-pity, but the victim’s, are favorably seen by viewers. Testimony which is seen as a brave positive attitude produces a supportive reaction. I’m not suggestion rehearsal. I’m suggesting carefully determining what to ask, how long to take presenting this witness and reviewing the testimony with the witness until you get the right formula of what questions work.
7. I understand that a qualified expert can describe the needed care being given and explain the circumstances as well as the full damage picture. But, that is less interesting, or compelling and often boring compared to a better approach. That approach is often a variety of people covering different aspects of care which is more interesting and easier to digest as a juror. I am not a believer in presenting major damage cases primarily through an expert. Just as the garage mechanic in a product cases can make a more compelling witness than the expert engineer, lay people who are able to paint the picture of what this injury means as a practical matter can make great damage witnesses.
8. Lastly, conducting one or more focus studies regarding these ideas and other approaches to damages can be invaluable. That includes video, illustrations or exhibit evidence you might use; video clips of witnesses you might call and a general reaction to the entire damage picture.
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One September morning in 1959 Skagit County’s only two superior court judges, Charles Stafford and Arthur Ward, administered my taking the oath to become a brand new lawyer. Also taking the oath was David Welts. There weren’t more than thirty-five lawyers in the county and less than 3,000 in the whole state. The practice of law wasn’t very complicated at that time. The state statutes fit in two binders compared with the volumes of law today. With rare exception there was no specialty law practice. Some lawyers seemed to have a large probate practice and others mostly a real estate practice, however, the overall majority of Skagit County lawyers had a broad general practice handling a great variety of legal work.
I hadn’t been in practice long when it was clear some lawyers stood out as successful and outstanding lawyers. In addition, there were a handful of lawyers whose trial skills were notable. Every trial lawyer, at that time, represented both plaintiffs and did insurance defense work as well. I spent time getting advice and assistance from the exceptional lawyers who were happy to share. I attended as many trials as possible, especially when an out of town lawyer was involved. Over time I saw there were some primary common traits with regard to those who were the best lawyers. None of these skills were taught in lawe school or if they were, were not given the significance they deserved. These are some things I learned which seem obvious, but which are often not practiced by lawyers.
The great lawyers had their priorities right. They had value systems which involved high ethics and honesty. Their word was binding enough without having to get putting it in writing. If they gave their word you could count on it and their reputation for honesty was well known.
They were people oriented. They truly believed their role was to help clients who couldn’t help themselves. They really cared about their clients in the same a dedicated physician cares about his or her patients. In addition to having a grasp of basic business principles, interpersonal relationship skills also are essential to the successful practice of law. All of the legal knowledge in the world will do you and your clients no good if you cannot relate to one another. To effectively develop business and service a client’s legal needs, a lawyer needs to fully understand the problem or goal at issue. They took the time to listen to their clients, kept them advised and charged fair fees. They had the ability to listen to the client’s concerns and devise possible solutions. They would explain the various options available in a language the client could understand. They could share empathy in sensitive practice areas such as family law and tort cases. Clients are looking for a lawyer they can trust and who cares about them and their legal problems.
They believed in the importance of service to others. They were the ones who gave back to their community for the right reasons. They were active in community matters and in the bar associations as well. Furthermore, the commitment was genuine.. They stayed active in local, county and state organizations. In addition, every lawyer’s obligation to provide pro bono legal services.
They recognized there were some cases that were beyond their skills and should be referred to other lawyers. Their referral recommendations were not based on the size of a referral fee. In fact, referral fees were generally nonexistent. They referred to the best qualified lawyer for the client. They recognized the importance of a trusting relationship with clients and if it was obvious that wasn’t going to be possible, they referred the case to a qualified lawyer or declined the case.
They knew the value of their work and if the fee arrangement was a client issue, they declined
the case unless it was a pro bono situation. They recognized that they should be paid for their
work. They used engagement letters, and fee memos clearly spelling out the client’s obligations. It allow
the client to decide whether or not to proceed with the arrangement or not.
6. Mistakes and failure while learning new things is critical to Success
Fear of failure is endemic in the legal profession. Lawyers become afraid to fail because they don’t want people to see them make a mistake. Perhaps people will laugh at you if you try and fail. Perhaps you will make an honest mistake with a client and have to fix it. But, if so, you soon realize that it’s not the end of your professional world. Quite frankly, most people don’t care what you do as long as you don’t hurt others. As lawyers, we all have our own professional and personal challenges to worry about and we’re just not that concerned about yours!
A basic knowledge of business concepts is essential to a successful law practice. Even if you did not take business courses in college, you may need to take at least a course in accounting or business for lawyers. A successful lawyer runs a business wise successful law office. Maintain accurate client and financial records.
They had good client habits such as doing client work accurately and timely. They always return client communications promptly and on the same day. Their fees were clearly explained to the client before undertaking the work and their charges were fair for the good work they provided the client.
They made an effort to learn from the best of their legal competitors. They practiced adopting the successful ideas and procedures of other lawyers that had proven benefit
They kept abreast of helpful technology to improve the efficiency of their legal office and legal practice. . They attended legal seminars and put good ideas they learned into practice.
CONCLUSION
A successful law practice involves more than knowledge of the law. We should study successful law practices, attend seminars and learn the rules for a law practice that is a success not only in the court room but in the office operation as well.d
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Other researchers at the University of Denver and the University of Arizona studied this same issue.Their 2016 published study involved a randomized controlled experiment in which mock jurors were presented with a medical malpractice trial, manipulated with six different sets of damages arguments in a factorial design. The study confirmed that anchoring has a powerful effect on damages; damages were 823% higher when the plaintiff requested $5 million as opposed to $250,000. When the plaintiff’s request for damages was low, the defense response had no effect on the amount awarded. However, when the plaintiff’s demand was high, jurors awarded 41% less when the defendant offered a counter-anchor than when the defense merely ignored the request or attacked it as unreasonable.
In another study, participants were asked to recall the last two digits of their social security number and then were subsequently asked to price a bottle of wine. Those with social security numbers ending with high digits (think 70s, 80s, or 90s) were willing to pay more for the wine than those with social security numbers ending with lower digits.
Judges are subject matter experts and logical evaluators. Yet studies show they are susceptible to anchoring as much as jurors are subject to its influence, even when the anchor is totally irrelevant.
Anchoring is also widely used in marketing in a variety of ways. For example, anchoring is involved in the practice of using one high priced product or service option to make other choices seem cheaper or a better choice by comparison. Advertisers use the concept in tying tunes, images or slogans to their product. The idea is to connect a phrase or slogan to a product so that whenever one hears or thinks about the slogan one thinks about the product, which in turn influences purchase decisions. We see it all the time in marketing. Maxwell House coffee has used the slogan “good to the last drop” in all of its messaging and advertising starting in 1917. When we see or think about Maxwell coffee we connect that to the idea that it’s “good to the last drop.” What’s significant is those ads which make you wonder what the connection is to the product are likely designed to create an emotion or feeling which they wanted linked to their product. Instead of Maxwell’s slogan, Folger’s Coffee used a scene of a soldier returning home for Christmas and is emotionally moved by the smell of Folger’s Coffee brewing in the kitchen to anchor the emotion of homecoming with their product.
Anchoring has uses of influence than numbers in a jury trial. It can be applied to the jury or even the judge to create a subconscious reaction or idea. It is possible to connect an exhibit, a phrase, or an action to an idea which will come to the juror’s mind automatically every time the anchor is repeated.
It can also be used as generate a personal feeling or attitude or reminder in ourselves as well. In trial. The process is best explained in Neuro Linguistic Programming (NLP). NLP anchoring uses a stimulus; (it may be a sound, an image, a touch, smell or a taste) to trigger a consistent response in you or someone else. The stimulus or anchor makes a link, connection or association between the two. Once something has been anchored we react to it at a subconscious level without consciously thinking about it. Anchors are built by repetition and association. You can link, just as advertisers do, anchors associating both images and thoughts. The anchor can be a visual anchor: a photo, an object anything. It may be an auditory anchor just as a song can make you immediately think of an event from the past. The Anchor can also be connected to touch smell or taste.
A simple illustration of creating an anchor in trial could be having a major case theme on a red piece of paper. Each time the theme is repeated the lawyer holds the red paper and speaks from the same physical position and in the same way. After a few repetitions, the lawyer could assume the same physical possession and posture, pick up the red paper, holding it in the same way, but say nothing, yet everyone would immediately think of the theme. That’s because there is a subconscious connection between the anchor of the colored paper. and the words linked to it. Themes repeated are a form of anchor in that it can link the words to an image: “if the glove doesn’t fit, you must acquit” or even “Lying Ted.”
More importantly, the same idea applies to our personal mental state. We can anchor feelings in the same way. Something as simple as reflecting on a time when we felt very confident and self-assured, clearly creating the image and the feeling. In that state we can then physically connect the feeling to something including a phrase or something physical such as touching fingers together in a particular way or putting our hands together in some fashion or any other physical act. This process when repeated several times creates an anchor between the physical and the feeling. By repeating the physical link, we will generate mental feelings. We can, in this way, anchor feelings of confidence or calmness or the like.
Anchoring, therefore, for trial lawyers has several particularly important possible uses. One is to influence the damage issues. Another to follow the same pattern of advertising by connecting two things together in a courtroom in a way in which we unconsciously generate repeated reactions by the jury or the judge. Another is by anchoring past healthy states of mind to some link of sound, image or touch to produce the feeling of confidence or calm that we need at the time.
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“Money makes the world go around, the world go around, the world go around,
Money makes the world go around, it makes the world go around” From the musical Cabaret
“The best things in life are free, but you can keep them for the birds and bees
Now give me the money, that’s what I want…” Sung by the Beatles in 1963
“It’s a very personal, very important thing. Hell, it’s a family motto. Now are you ready?…OHHH! SHOW ME THE MONEY doesn’t that make you feel good just to say that Jerry. Say it with me one time brother…” Cuba Gooding, Jr. Movie Jerry Maguire 1996
Is the sole objective a civil tort action really the just the money? Is it the primary role of the advocate for the injured to be an instrument to collect as much as he or she can from a defendant being sued? Do we measure and compare success of the civil trial lawyer by the amount of the verdict they are able to achieve? If so, our professional role is comparable to a door to door siding sales person. The exclusive role of the advocate in a civil tort case is to achieve justice for their client. Under our system, justice in such a case is measured by a verdict of money, for those who are legally entitled to it, which represents a sum equal to the harm done. If the harm is slight, the verdict in dollars should be slight. If the harm is great, the verdict in dollars should be great. However, the purpose of civil tort law includes more than simply determining the sum of money that is equal to the harm.
“The law of torts serves two basic functions: it seeks to prevent future harm through the deterring effect of potential liability and it provides a remedy for damages suffered” Medina v Pub. Util. Dist 147 Wn 2nd 303 (324) See also: Babcock v State 112 Wn 2nd 113.
Justice, under our civil tort law, is intended to discourage future conduct through a finding of fault and to reasonable and fairly compensate the injured person for the damages sustained. Every tort rule, to some extent, is intended to both deter other wrongdoers as well as to compensate the injured person. Restatement (2nd) Conflicts of Law sec 145 p. 416. This is true irrespective of whether the law allows punitive damages or not. It is an inherent part of our tort law.
In London, at the corner of St James Street, there is a very old building, the: Norwich Union Insurance building. At the top of the building there is a large statue of a blindfolded woman holding in one hand the scales of justice and in the other a large sword. Huddled beneath her and under her protection are a man and woman who look frightened. She stands as their protector. A symbol of the role of justice and the civil justice system.
The concept of justice has occupied man over the centuries. Plato & Aristotle identified four virtues as the most important among people in ethical behavior. One of them was justice. Aristotle centered his teaching of ethics upon these four virtues. Thomas Aquinas referred to them as cardinal virtues because he taught they were of the highest importance in our moral life.
Justice, they taught, involved the idea that if one has wrongfully deprived another of something of value, they are obligated to restore it. That is, justice demands the restoration of what has been wrongfully taken away. Accordingly, if one has wrongfully caused injury to another, justice remains unsatisfied until proper compensation has been paid to restore the previous balance of equality. In fact, the word Justice is from the Latin word jus from which we derive such words as just and justice. Right is also used as the equivalent of justice; that is right is correlative of duty. People are obligated with the duty to do justice and to do what is right. This concept is an essential part of our civil tort law.
We have seen that there is only one reason why the civil justice system exists and that is to do justice. Justice in a civil tort case is potentially a two part procedure. The first duty is to determine which party should prevail based upon the facts and law. If the plaintiff is entitled to a verdict, the next duty is to determine the amount of the verdict. The only way justice can be achieved, in that instance, is by a money verdict in a reasonable and fair amount. While the law speaks about restoring injured people to their original situation through the verdict, we know that in tort cases the money will not restore life or limb. However, it does not follow that therefore, no money should be provided or only the bills should be paid or that arbitrary limitations should be imposed on verdicts. Nor has a jury fulfilled its duty by a verdict which is less than full justice because anything less than full justice is an injustice.
But how should a jury evaluate what full justice is? It can only be done by comparing the harm done to a sum of money which reasonably and fairly equals the harm. It is only when the scale is accurately balanced with money on one side and the extent of harm on the other. That requires careful examination of each element of damage which the law provides. It means each element must be individually weighed from a dollar standpoint until the money and harm are equal. It’s done objectively without regard to reservations on the total so long as it is reasonable and fair considering the facts, evidence and harm done.
This consideration requires breaking the evaluation process down into legal categories. The first category is time – past and future. Evaluation of damages should be done in two separate time periods of past and future. Past damages may and probably do differ from the effect of future damages over remaining life. More importantly, since the plaintiff is entitled to only one day in court – one time for a jury verdict – the damages must cover his or her entire life and not just the present moment.
Damages also differ in type. One category is economic damages. Those damage which are capable of calculation for such things as wage loss, medical bills, property damage and the like. Another category is non-economic damages. Those damages which represent the effect upon the injured person. They include such things as the nature and extent of injury, disability, disfigurement, pain and suffering and the loss of enjoyment of life. The fact there is no convenient yard stick to measure these by does not allow the jury to ignore them or treat them as impossible because to do so would result in an injustice under the law.
In order to achieve full justice it is essential the jury understands the two time periods and the fact there are two kinds of damages: economic and non economic. The jury must be told these are very different. Economic damages are based upon need and specific dollar expenses. Non-economic damages have nothing to do with need or specific expenses. Don’t let defense counsel confuse the jury that the only role of damages is to pay bills or to suggest that the jury should evaluate what the “needs” of the plaintiff are in money. Non-economic damages have nothing to do with needs, bills or specific economic issues. They only have to do with making the dollars equal to the harm irrespective of such economic needs. To the extent you can make the jury understand this vital point and award full justice in dollars you have done your job as a plaintiff’s attorney in a tort damage case.
Communicate the fact they possess the power to do justice. It is a right as significant as that of the power of the judge. Let them know you trust their doing the right thing. Remind them of the importance of the case not just to the individuals involved, but to the broader meaning of justice. Close with passion and power.
There are many approaches to arguing damages. Keep in mind, however, that in some states lawyers are not allowed to suggest a dollar amount as a jury verdict. Washington allows lawyers to do so. Some of the more common ways of arguing damages in Washington are:
Remember to explain how the injury or harm is translated in the real world regarding the client’s right to enjoy life in an injury case. To do that you need to understand what has happened to your client. You need to completely and fully appreciate, to the extent it is possible, what the harm has meant to this person’s life. Who was this person before and who is the person now? If you haven’t “crawled inside their skin” you won’t be able to speak for them and explain what justice means in this case.
Think about concepts of justice. Be prepared to explain the verdict as full justice and not as some legal abstract. Think deeply about the jury’s role, about the system which we believes is the best in the world to achieve fair and full justice and about the need in America for justice.
When Martin Luther King became an activist for civil rights he began to receive nightly phone calls threatening death to his family. Unable to sleep, tormented by visions of his family suffering harm, King broke down one night in his kitchen. As David Garrow writes in his biography of King, at that moment King heard an inner voice saying, “Stand up for justice, stand up for truth. . . .” From that point forward, the voice in the kitchen was King’s personal anchor of faith, the message that enabled him to overcome the most dire threats. What had once been an intellectual creed had now become personal, deep, and overpowering faith and drive for justice for all. The concept of justice being due as money is due in a promissory note fits well within our law relating to damages. In his famous “I have a Dream” delivered on the steps at the Lincoln Memorial in Washington D.C. on August 28, 1963, King said in part:
“So we have come here today to dramatize an appalling condition. In a sense we have come to our nation’s capital to cash a check. When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence, they were signing a promissory note to which every American was to fall heir.
This note was a promise that all men would be guaranteed the inalienable rights of life, liberty, and the pursuit of happiness. It is obvious today that America has defaulted on this promissory note insofar as her citizens of color are concerned. Instead of honoring this sacred obligation, America has given the Negro people a bad check which has come back marked “insufficient funds.” But we refuse to believe that the bank of justice is bankrupt. We refuse to believe that there are insufficient funds in the great vaults of opportunity of this nation.
So we have come to cash this check — a check that will give us upon demand the riches of freedom and the security of justice. We have also come to this hallowed spot to remind America of the fierce urgency of now. This is no time to engage in the luxury of cooling off or to take the tranquilizing drug of gradualism. Now is the time to rise from the dark and desolate valley of segregation to the sunlit path of racial justice. Now is the time to open the doors of opportunity to all of God’s children. Now is the time to lift our nation from the quicksand’s of racial injustice to the solid rock of brotherhood. “
The great advocate Moe Levine has given trial lawyers wonderful ideas for arguing damages. Some of these ideas include the following, taken from an argument on behalf of a young woman who suffered injuries:
Take the time to think about the effect of injury upon people. For example, we know that it is not possible to just injure a part of a person. Injury affects every part of the human being. A headache can rob a day of sunshine. Pain in a foot isn’t limited just to the foot. It affects everything the person does.
Injuries cause real devastation to a person’s life. This includes:
Hopelessness
It’s important to keep in mind that a trial is not a battle of logic. It is, instead, a battle of impression. People form opinions and draw conclusions at a subconscious level on the basis of multiple impressions they receive and only then rationalize those opinions or conclusions by logical process. Once they form these opinions or impressions they tend to filter out anything that conflicts with them. Focus on the impression and not the logic. Think about the issues and people’s basic values. Consider how your client’s case would look to a group of people who don’t know them the way you do.
Cases have themes whether you give them one or not. If you don’t try to frame the theme of your case for the jury, they will do it for you. The statement: “this case is about….” is part of the mental process the jury will go through in evaluating your client’s case. What is the fundamental issue the case presents? What is you claim about the fault and the damages? Expressing this in a short sentence and identifying the basic theme is an important step in the presentation of damages to the jury.
A trial should be a story and not a chronology. People think in stories. They learn by stories and they decide by stories. Tell your damages as a story to the jury and not as simply a chronology of facts. Make it compelling. Give it human interest. Don’t just describe the injury, but explain what difference that injury makes.
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To understand the significance of communication framing, we need to understand how human beings make up their minds. Neuroscience has proven that the great majority of our decisions are made at a subconscious level. The decision is then ratified by our intellect with a reason for it even though it was decided in the subconscious mind without our conscious knowledge.
In general, decisions are greatly influenced primarily by three things: (1) our deeply held value beliefs (2) our significant life experiences and (3) by existing biases which combine to influence our opinions and impressions. Proper framing employs all of these factors in persuasion. As a result, research has established that a trial is a battle for overall impression and not a matter of logical analysis. Not only that, but emotion is always involved in decision making. Without an emotional component, decisions aren’t possible. Framing takes advantage of all these factors.
In addition, we decide issues by creating a story in our mind. It begins in the subconscious mind as we receive facts and evidence. Our subconscious mind employs emotional reactions with past experiences, our bias and our personal values to form a general impression. The result is a story the person creates and believes in the mind. Framing influences our impression, and our impression is what drives our opinions.
CLARITY AND SIMPLICITY IN FRAMING
Information overload is a modern problem of good communication. There is just too much information in our modern world, and we have to filter out what is useful to us. Framing simplifies issues. According to studies human beings are by nature “cognitive misers”, meaning they prefer to do as little thinking as possible. Frames provide people a quick and easy way to process information. Furthermore, we are also drawn to details that confirm our own existing beliefs. A frame which captures our own beliefs encourages acceptance of the idea.
Framing addresses the issue that information can be very confusing, and we need to make sense of it. We find stories and patterns in the information and filter out almost everything else. We fill in characteristics from stereotypes, generalities, and prior histories. We simplify probabilities and numbers to make them easier to think about. Framing helps simplify and encourages acceptance of our intended meaning.
Another factor framing relates to is our need to make fast decisions or act quickly. In order to stay focused, we favor the immediate, relatable thing in front of us over a delayed distant one. As a result, we favor options that appear simple or that have more complete information over more complex, ambiguous options. Framing offers a way to accomplish this need.
Another aspect of communication is the question of what we need to remember from all the information we are presented with. As a result, we edit out and reinforce memories after the fact. We discard specifics to form generalities. We reduced events and listed their key elements. We do that through framing with repeating or echoing and proper sequence in relating information.
That’s why our brain looks for shortcuts to explanations. Framing fits with the human nature of making mental shortcuts. For example, “a rule of thumb” or “an educated guess.”. Our brain looks for simplicity. Simple frames are the best frames.
FRAMING AND DAMAGE CONCEPTS
Framing is important in how you present your damage case to the jury. Researchers tested the presenting damages to a study group based upon the concept of the “need to be made whole.” They also presented damages based on the concept of the “value of what has been taken away.” . (McCaffery, Spitzer & Kahneman, Framing the Jury, (1995) 81 Va. L. Rev 1131.) They wanted to compare noneconomic damages from a “made whole” perspective with “the amount it would take to agree to suffer the injuries received.” The study group who was presented with the frame of damages for how much it would take to “go through it,” awarded more than three times than the “made whole” concept. This indicates that in presenting damages, avoid framing them as bringing your client back to where they were before, righting wrongs, or paying bills owed. Instead, frame them about what it is worth to lose one’s health, happiness, and enjoyment of life.
ANCHORS AND METAPHORS USE IN FRAMING
Two important aspects of good communication framing involve anchors and metaphors. Anchoring uses a trigger to subconsciously stimulate a consistent response. Anchors can be visual. They can be auditory, or they can be kinesthetic. Anchoring is used in advertisements all the time. Anchoring operates without our awareness. Even randomly selected numbers influence our subconscious judgment as anchors.
Metaphors create vivid images to make it easier to understand and remember the message. Metaphors engage the right brain, just as stories do. Metaphors have the power to bypass the conscious mind and deeply influence the subconscious mind. Metaphors are part of our natural thinking process. People learn, think and talk and metaphors. In fact, metaphor uses inescapable open communication. Metaphorical language is commonly used in poetry, music, and literature. Metaphors are a short cut to the two conclusions, opinions and decisions. Framing is an unavoidable part of human communication – we all use metaphors in our communications and good framing does as well. Metaphors influence subconsciously and are part of our natural thinking. Metaphor use is inescapable and powerful and enhances framing.
CONCLUSION
Words make a difference in how people interpret and react to what we say. By selecting the best way to label, describe and express ideas by framing them correctly, we greatly impact the reaction as well as understanding of listeners. Great trial lawyers learn how to frame their communication.
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