One of the firm’s associate lawyers worked extremely hard in preparing for the trial of an admitted liability rear end collision case. There was only a $25,000 policy and a settlement of $250,000 under plaintiff’s policy had been made by one of the partners. The associate was then asked to try the case as a potential bad faith case given the defense offer. This was her first trial on her own

The damage part of the case presented a lot of challenges. The injured male plaintiff had been seeing a chiropractor on a frequent regular basis before the collision. The damage to the cars wasn’t obvious, although there was a bent frame on plaintiff’s car. There were no broken bones. There were lots of entries in the record of complaints of pain and disability before and after the collision plaintiff needed surgery. The wage loss was soft and the claimed medical bills disputed as to causation. The judge allowed the defendant, over objection and motions, to testify in this admitted liability case that she had had to quit school to care for her siblings and other testimony that can only be relevant to a plea for sympathy and poverty. The result, after ten days of trial was a unanimous defense verdict for zero dollars. Our associate lawyer was devastated as she had worked very hard and was totally familiar with the facts.

I wasn’t there for trial and did not prepare her, but after hearing the news tried to figure out how that could happen. Most of my post verdict thoughts are based upon speculation because I haven’t seen the post verdict reports or results of contact from the jurors. What follows is my evaluation for her when I learned the result with some additional thoughts. I tried a fair number of cases like this when I was starting out, but I don’t claim to have all the answers. What follows are my thoughts and views about these cases.

You did a terrific job because you did the best you could with a case none of the partners in the firm were willing to risk trying which is why you got this one by yourself. That took courage and you couldn’t have worked harder. Learning to live with losing is more important than learning how to act when you win. We must never become comfortable with the idea of losing. We should avoid the attitude that “you can’t win them all” and “if you aren’t losing cases, you aren’t trying cases.” That’s a loser’s frame of mind. Our attitude should be to first screen cases for merit and not experimentation or trial experience at the expense of clients. Contrary to common thinking we should settle our “bad” cases and try our “good” cases, not the other way around. Trials are too expensive and too stressful as well as important for clients to not carefully evaluate when to go to court and when not to try the case. When we lose a case we must figure out why and revise. The “why” is often not what the jury or even the judge tell you because they reason, like all human beings, at an unconscious level and offer only what their rational minds offer as a reason for their real decision process operating below their conscious awareness.

As I indicated, you are not going to learn a lot from the jurors when you lose because they will give intellectual reasons when it is something far more fundamental. Go ahead and have someone talk to them but don’t accept their excuses or rely upon their explanations for revision of your trials in the future. The lesson to learn here is that the only way to know the underlying issues that drive a verdict in a case like this is a focus study. We needed a focus study in this case and if done it should have revealed the underlying themes, problems and issues. The lesson here is: never try ANY case without first doing a focus study ever. If it is worth trying it must be worth doing a focus study. And I don’t mean the invalid studies lawyers like to do when they think the way to conduct a focus study is to dump all the facts on the group, argue their case to them, do most of the talking and overload them with detail. The results of a focus group by providing both sides arguments and evidence, in the absence of professional help and guidance produces unreliable results. The results depend upon impression and impression depends upon who, how and what is presented.

For an inexpensive and informal study in a case like this done in house by us, means one where only minimum relevant facts are presented for immediate gut level impressions. For example one might say in our case to a focus group: “This case involves a 52 year old man who had been seeing a Chiropractor weekly for his back pain. He was involved in a rear end collision while stopped. He wasn’t at fault. The other driver admits they were at fault. After the collision..” (explain the immediate events: he did not go to the hospital, or he drove home or it was a week before he saw his chiropractor) Next give them a very basic and brief and simple statement as to treatment. Then describe briefly his claimed injuries. For example: “He claims that as a result of the collision he now needs neck surgery. He has $50,000 in claimed expenses. The defendants say he had all these problems before, he was not hurt seriously in any way and he is exaggerating to collect money. There will be disputed medical expert testimony” If you have a video of the client show them no more than five minutes. If you have pictures of the cars show them but don’t answer their questions. Then, before they are allowed to discuss the case and without answering any of their questions have them fill out a form: Q. How do you feel about his case? This produces gut reaction impressions. After they fill in the form let them discuss the case, looking for themes, issues, and evidence you need to be concerned about. Their questions, at this point, will help guide you as to trial evidence and case issues. This can be done with a group of eight to ten people for under $2,500 easily.

As to the result, the gift you got was a zero verdict. If they awarded any insignificant amount you would really have reason to be devastated for several reasons. A tiny verdict is an insult. It would be like a trying a long case and the verdict was $1. Now that’s a total insult. Trust me, a total defense verdict is a lot easier to live with. In addition, it demonstrates a probable bias and likely prejudicial error during trial which gives you an explanation for the outcome. On top of that, under Washington law, it is probable evidence of an improper verdict supporting a new trial since it was an admitted liability case, with some undisputed injuries. The fight was over what injuries and how severe they were. So start with the fact that if you were going to lose it’s a lot better to get a zero than a slap in the face.

It’s important to realize these kinds of cases are credibility cases and they are won, not with medical testimony, but with lay testimony. Jurors know the medical experts have an interest, but they trust lay people’s non medical observations of before and after medical conditions. Credibility is the reason I don’t think, as a general rule, you have your client on the stand more than thirty minutes maximum. You want your client saying “I’m doing OK and I’m going to beat this” and not moaning and complaining about their problems. Let the other people talk about his problems. The lay witnesses describe what they noticed before and after the collision with each one giving a different example. They tell very short stories illustrating the difference and they are brief witnesses as well – often ten or twenty minutes total. As to the total medical proof and evidence, you must be very careful not to over try the injury claim or exaggerate in any way, since the issue is credibility and they are looking for exaggeration and greed. You have to under try these kinds of cases.

Usually with this kind of case you are better off trying them as simply and quickly as possible without a lot of experts, technology or the trappings of major trials. They are white board, paper or Elmo cases rather than PowerPoint cases presented without a lot of technological fanfare. They require, however, good medical illustrations and diagrams to understand soft tissue injury. They are cases where you start right off talking about the obvious problem of a man with preexisting problems who now claims he is hurt and being totally candid from start to finish. These are cases where you concede specials are in dispute and you give the jury full power to disregard all or part. These are above all else impression cases and not cases of logic. Credibility is paramount. They need to trust you and they need to see total honesty.

Let me make clear I am not saying you would have won this case with the application of these facts. I don’t know the case well enough to evaluate that. What I am saying is that the manner of presentation tips the scale in the impression formed by the jury. There is no question in my mind, these are some are the most difficult kind of case to win. A malpractice case is easier to win then an admitted liability rear end collision with preexisting injury. The reason for that is in large part due to the decade of tort reform propaganda which focused primarily on rear end soft tissue cases as fraudulent get rich cases. It was the auto cases the insurance industry focused on to influence the juries and the legislature. It was only later that they begin to attack malpractice cases. As a result, of all the cases tried this very kind of case most frequently lost and there a lot of defense verdicts reported in our verdict reports to prove this so you aren’t alone here. This isn’t a failure on your part. This is just a painful learning experience you have now had which, if treated right, will make you a better lawyer.

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