Trial Diary

Trying the not so big and glamorous cases

Nicholas C. Rowley
2014 May

The smaller cases are often tougher than the big glamorous ones. For this reason my partners and I still try these tough cases as often as we can, practicing what we preach. This article is in diary form on a specific case I am currently fighting.

This was originally not our case. I received a text message from a good friend, Candice Bond, Thursday morning of the week before last, saying: “Nick, I really need your help….would you please try a case on Monday…”

This was the first I had heard of the case. I learned that the client, from Guatemala, doesn’t speak English, was involved in a low-speed rear-end impact, was fine at the scene, went straight to work after, and waited to go to the doctor until after he got a lawyer. Delta V of 4-7mph. The insurance company refused to pay the small policy limits. Seven hours later, at 7:00 p.m., on the 25th floor of a fancy insurance defense firm in downtown Long Beach, I meet Keith Bruno and am taking the deposition of the prior treating physician and preserving his testimony by videotape.

Fast forward to Tuesday, March 12, 2014, and I’m one witness away from start of closing argument.

In this trial I‘ve witnessed and mentored Keith Bruno in his first personal-injury trial. Keith has done an equal part of this trial and we have had the assistance and physical presence and support in trial each day from Andy Wright. Andy Wright and Candice Bond dedicated themselves to this case for the past 3 1/2 years. We decided only two of us would sit at counsel table and drew straws so it ended up being Keith and I splitting up the trial. We first decided I would do most of everything because Keith had never done a personal-injury case. However, as we saw what he was capable of, I split the trial up evenly with him. Keith has over 100 jury trials under his belt, most all criminal defense cases, zero personal injury cases.

Keith’s performance in this trial is as good as the best civil trial lawyers I know in this country. He’s top notch, and without a doubt, among the best I’ve ever seen. I don’t say things like that often. If I say somebody’s good, they’re good. Keith is great! He started out as a public defender and has validated a lot of what I’ve believed for years – that the best trial lawyers start out practicing criminal law, usually public defenders, scrappers for the little people fighting against all odds. Prosecutors, not so much, in my opinion. They’ve got it way easy, even easier than insurance-defense lawyers.

So, the way we divided up the case is I handled mini-opening and voir dire, Keith did the opening statement, we have split-up witnesses and the closing. I believe in never trying a case alone and will always share the stage at trial when a lawyer is competent and can do what needs to be done in opening and closing and cross examination.

The defense case has five parts which mirror what we often see:

(1) minor impact, just a tap;

(2) delay in treatment; no complaints or medical treatment for 11 days and after getting a lawyer;

(3) inflated medical bills all on a lien;

(4) exaggerated injuries and damages; the sub rosa footage shows there was and is nothing wrong with the client, a 50-year-old pizza delivery driver of 15 years, from Guatemala, who does not speak English, who went back to work after he was rear-ended and kept delivering pizzas; and

(5) according to science, the claimed injuries are impossible.

During mini-opening statement, I brought up the defenses and told the jurors I needed them to be brutally honest and to tell me how they feel about being part of this case where I am going to ask for a million dollars for a man who speaks no English and looks normal

Voir dire went as well as it could have gone. I addressed the delay in treatment over and over, the value of a Guatemalan pizza delivery man who doesn’t speak English, and money for pain and suffering. Keith did the opening and it was fabulous.

Our focus in this trial has been the human story of a hard-working, pain-free man, and that our client is not a liar, cheat, exaggerator, or a fraud. Rick Friedman’s book, Polarizing the Case, is a must-read for all personal-injury trial lawyers.

The photographs of the defendant’s vehicle showed nothing and the photographs of our client’s vehicle, which had 355,000 miles on it, showed a minor impact.

A human story

Scary? No! There is so much more to the human story than what the defense says, the same litany, which we have heard time-and-time again by the same casts of characters. The way they defend these cases is cookie-cutter. Human stories are not!

Okay, time to go back in. Lunch is over.

I’m back home now. We had twenty minutes left after instructions, and I decided to split up my closing to give the jurors something strong to think about and feel the humanity before they went home. I started out passionately because that was how I felt. I pointed out how shameful it is that the defense treated our client cheap and worthless for 3 1/2 years. I attacked the defense experts and reminded “the law says you do not have to accept an expert’s testimony and the reason why is that experts are just human beings with opinions who get paid money.”

I told them that the real way to learn about a case is from the human beings who have lived, not paid experts. I talked about the client’s mother, a 73-year-old woman from Guatemala and his 89-year-old father back in Guatemala whom he takes care of and sends money to. This man was hurt, we all know he was hurt, and we don’t need a paid expert witness to come in here and tell us otherwise; we know better than that. We know the defense has the ability to refuse to pay and bring in their hired experts. They expect people to give up. Cesar Chavez said “you cannot humiliate a person who has pride” and this man has pride. The defense expected him to give up, to not have the courage to come to court, but he has pride and I am proud of him. I am proud of all of you for being here and listening to what happened and the way he’s been treated, disrespected and devalued for the past 3 1/2 years. The evidence has shown us that. But, there is no justice, no hope without you; the only people who can stand up and make a difference and make this right is you.

I asked for a little over a million dollars, exactly what I thought was right. Sometimes juries agree with me, sometimes not. What I do know is that as of 4:30 p.m. they had a lot to take home.

It’s 2 a.m. I’m awake. I can’t sleep. I am thinking about the jury, our client, his mother. Wondering if I pushed too hard. Need to start softer in the morning. My wife Courtney, who rear-ended a man the day before, also wakes up. Her neck hurts. She is so upset, but most worried about the man she hit. She feels horrible. I make her some food. It takes us a while to fall back asleep. Courtney and I are a trial team and try our cases together. She is a phenomenal trial lawyer and instructor at Spence’s Trial Lawyers College where we met years ago. This is the first in a long time that I’ve been in trial without her. I don’t like it. Neither does she. We have another case she is preparing for trial. And, despite how busy she has been, we’ve worked on this case together each night. She met the client and his mother and has been helping me, giving all the support she can.

The closing argument

It’s now noon Wednesday, closing arguments are done, jury has the case. The defense counsel did a good job. Keith handled the rebuttal and was amazing. He was real, connected, addressed all the points that he needed to. We lost both a juror and alternate and that means that the alternate I am afraid of is on our jury. He’s not good for us, and I believe he’ll be foreperson.

Closing this morning began:

It means a lot that you’re here, you make justice possible. Yesterday my wife got in a car accident, and last night her neck started to hurt, she is pregnant, and scared, but what she’s most concerned about is the man she hit. It was her fault. And, you know what she said to me. She said she won’t allow the man she hurt to go through anything like this or be treated this way. No way! She’s going to call him today and see how we can help. Our client was treated as a liar and cheat from day one. He is everything but that.

I went through the medicine, lay witnesses, and defense experts, but mostly I talked about common sense, credibility, and the human story. I explained that the money we are asking for is a lot, but at the end of the day I want our client to end up with something that makes a difference in his life.

This case and all the care cost a lot, and he deserves to be left with something. As he told you, his body aged because of all this. He was 50 years old and had a body that didn’t hurt. After he got hit he thought he’d get better and he toughed it out. Didn’t go to a doctor right away. Yes his doctor was set up by a lawyer. That’s what he had to do to get care for himself. He’d worked for Pizza Hut for 15 years. Didn’t have health care. Knowing he was hurt and needed help, he got a lawyer. That’s what a reasonable person would do. And one of the reasons why, is he was not getting phone calls returned by the defense. He was ignored. Not speaking English and never having been in anything like this, he exercised his right to get a lawyer. One of our most important jobs is to help our clients get medical care.

The defense lawyer asked the jury to give $15,000. Ridiculous, but still scares me. The jury could do just that. Some wrote down his number. I’ve had crappy verdicts on cases just like this. The toughest part of the defense closing was sub rosa footage in eight different windows on the big screen all playing at the same time over and over again, of our client two days before lumbar decompression surgery, looking normal, delivering pizzas, doing crunches and bench presses at the gym, in and out of the car, carrying things, looking like there was nothing wrong with him. While I point out on cross of the private investigator that he only showed six minutes of 40 hours of surveillance, it still stings badly.

Now, I am worried about me. My pride, ego, reputation, are all on the line. That is brutal honesty. The other part of me says: Wait a minute, this is what I believe in, the outcome, whatever it happens to be, is what it is, I did my best and I am proud of my team. Proud of myself for jumping into this fight. I’ve been given a set of skills and if I only use them on the cream of the crop cases that I know I’ll win and that will make me a big-timer, then I’m not who I say I am. Or, I haven’t learned as much as I think.

It’s now 6:30 p.m. I am at home. The jury deliberated all day and I went home frustrated. The foreperson is exactly who I feared. There was one question and request for read-back of the testimony of our client where he said he went to see a doctor a few days after the accident and defense counsel accused him of not disclosing that during discovery. But, the read-back wasn’t that bad. Our client said he went to a multi-specialty clinic a few days after the accident because he was in pain and they said he needed to see a specialist and that is why he got a lawyer. The defense lawyer attacked him and said “did you tell me that in discovery?” and our client responded through the interpreter “I don’t understand what you mean.” The transcript at that point had the judge interrupting for the morning recess. The defense lawyer moved on after the break, so that was it. Whew!

It is 10:41 a.m. the next day, Thursday, day two of deliberations. I’m proud of jurors who are in there fighting for our client. I got here at 8:30 a.m. in jeans and a tee shirt to be with our client. I usually don’t wait for juries. I go nuts. So, I work out like a mad man, fly away somewhere, or even into another trial to maintain sanity. I felt I need to be here this morning and I’m glad I am. These are our people, much more than the defense lawyer whose true client, the insurance company, only has money running through its veins.

Let me tell you how we put on our case. Lay witnesses are most important. We put our client’s mother and his best friend on the stand and they told the jury through a Spanish interpreter who our client is. We talked about how he lived his life, what was important to him, his values. Keith handled these witnesses and told the story of a hard-working man who believes in honesty and integrity. I had taken the videotaped deposition of the internist who our client had seen over the eight years pre-injury and I went through every examination and how specific our client had been about his problems. I pointed out how he always waited to complain about his problems, and how he never had a single complaint concerning his neck, back, shoulder, or knee.

I videotape expert and physician depositions, do my direct examinations, and play them for the jury at trial in lieu of live testimony. You can do this under the Code of Civil Procedure even if the witness is available. My theory is that the jury is 100-percent focused on the video. There are no lawyers walking back and forth, no objections, no cross examination, and no surprises. You can replay clips of the video in closing. This saves time, money, and I believe jurors get more information into their brain than they would with some live witnesses. Also, the reality is that the defense is often unprepared so there isn’t any adequate cross examination.

I put our client on the stand and asked him about his life and body before and after. One thing that was big was that he had neck pain after but it went away after eight weeks. It was his low back, right knee, and left shoulder, which continued to hurt. “The defense is accusing you of trying to make something out of nothing and exaggerating your injuries, why in the world then would you tell the doctors that your neck stopped hurting after eight weeks?”

“Because that is the truth.“That is the truth.” I asked about what it was like being evaluated by the defense doctors and how they treated him. Was it different than the doctors who helped him get better? He explained. We talked about how he was trained as an accountant in Guatemala but coming to America he could only get work in the agricultural fields and took to pizza delivery. We talked about how the medical treatment and surgery helped him get better and how most of his pain is now gone.

The experts

When it came to the treating doctors, I put them on the stand and embraced the liens. I owned that they had a financial stake in the outcome but also that our client would still be responsible if we lost the case. We talked about whether liens are ethical or dirty and about the difference between being a treating physician and hired forensic expert.

We didn’t have a biomechanical expert. So, I cross-examined theirs, had a field day, and asked him to cite a single crash test involving a 50-year-old man with these two exact vehicles. My cross was effective but the best part was a technique I’ve used over the years where I have the expert demonstrate, without words, using his own body, how our client’s body moved at impact. I stand at one end of the courtroom and say “when I say crash move your body the way you believe my client’s body moved. …. CRASH…” The way the defense experts move their bodies is ridiculous. The best part is when they try to talk while doing it and I stop them, “start over, let’s try again, without words. Just show us….CRASH…” Pretty funny to watch. The next big question is asking whether they took a man of the same age and body type, put him in the same make and model of vehicle and rear-ended him to see what would happen. Here, the expert had pictures of a younger man sitting in a similar vehicle to “demonstrate” his opinions. I asked “well, you didn’t have that man grip the steering wheel as hard as you could and have him press hard on the brake and brace for the collision in fear and then rear-end him did you?” “No, because that might hurt him.” In closing argument I had Keith stand up and say “imagine if I ran at seven miles per hour and slammed my body into Keith. Imagine if he was 50 years old and he was bending over, then I did it. My client’s body went from zero miles per hour to seven miles per hour in less than half of a second. And he was hurt!”

The defense spine expert, Dr. Dillon, said the back surgery had a “placebo effect.” I had a field day with that and pointed out how the neck pain went away and how that showed our client was credible. He agreed. I got him to agree to injury to the big muscles in the lower back. “The big strong muscles and soft tissues in his back which protect the spine were injured, you give us that Dr. Dillon, true?

YES.

I then used a program on my iPad called MusclePro to show all the different layers of soft tissues all the way down to little soft tissues that hold the vertebral bodies in place. He had to admit that because the big stronger tissues were injured that the littler ones that I dissected down with the iPad program were harmed also.

Dr. Rothman came in and did his usual presentation. I was nice to him as always and addressed how pain and acute injuries to the soft tissues wouldn’t show on the MRIs he had seen. After I finished with him, a juror asked him two questions: 1) How often do you say a person was injured? and 2) How long would signs of an acute injury to the tissue be present on the films?

Dr. Rothman’s answers were golden: 1) Injuries in emergencies only show 10 percent of the time; when people come to the emergency rooms the films only show 10 percent of injuries; and 2) If I hit you and caused damage to your soft tissues we would see the swelling and damage for about 10 days; if it was minor damage maybe for 5 days. But if you were hit really hard with blunt trauma, the signs of that would last and be visible on MRI films for about three weeks. After three weeks the signs of the acute trauma would go away.” This was gold and I ordered the transcript for all of us. Dr. Rothman is helpful and honest at the end of the day if you ask the right questions.

The defense medical-billing expert, Nancy Frasier-Michalski, took the meds down to 20 percent of what they were and said the billing was fraudulent. She had an impact on the jury on direct but on cross she would not even look at me and was almost robotic. I pointed that out to the jury how she believed that her work on the case was worth 20 percent of the value of the total of all the medical providers who took care of my client over three years. I asked her who audited her bills. I pointed out how she has done only forensic work for the past 14 years and she testified to a number of things that were inconsistent. I thought she looked bad on cross but she played on the jurors’ prejudices and said that on our case the medical facilities were charging 10 times what is ethical. It was a tough thing to hear and it took a lot of control to not lose my temper with her.

Keith cross-examined Dr. Kivitne about the knee and shoulder injury. We ordered his testimony because Keith got him good. Dr. Kivitne wrote a report early on for the defense with a conclusion addressing the neck and back and saying the impact was so minor that no neck or back injury was possible. His partner, spine surgeon Dr. Dillon, testified differently. Keith nailed Dr. Kivitne with this on the stand. Three times Dr. Kivitne refused to answer any question on the neck or back and said he was not qualified to testify about the neck or the back. Keith showed his conclusion in his report and embarrassed Dr. Kivitne who blurted out how he wrote that conclusion before he had really reviewed the case and saw everything. It was a golden moment!

It’s almost noon. Jury is still deliberating. We’ll get a verdict today.

We tried a tough case for a simple Guatemalan man who doesn’t speak English, who has been delivering pizzas for 15 years and who went back to work the very day he was hit. He had had a shoulder surgery, a low back decompression, and a knee surgery. The medical bills are a lot and all on a lien because he had no other way to get care. He is an honest man and he was hurt.

Trying cases for the small-case clients of the world is important and I hope I have the courage to do more of them.

It’s Friday afternoon now. The jury asked for a new roll of butcher paper. There are good humans in that room standing up for justice. At a minimum we have sure wreaked havoc upon AAA and stood up for the rights of a good hard-working man.

It’s Saturday. They deliberated for over two and one half days on this little not so glamorous case. Back on Monday. Fight the good fight and not just the big glamorous cases that we know we can win.

Postscript

The jury deliberated for three days. Awarded $198,000 in past economic damages and $200,000 in past non-economic damages. With the 998 demand of $100,000 which AAA refused to pay, the judgment with pre-judgment interest and costs exceeded $600,000. AAA paid a settlement of $510,000 (more than 5 times the policy limits) within 48 hours of the judgment. Immediately, AAA raised its offer three times higher on another case that is set for trial. Try the tough cases and never give up.

Nicholas C. Rowley Nicholas C. Rowley

Nicholas C. Rowley is a partner of the law firm of Carpenter, Zuckerman & Rowley. He has served as an instructor at Gerry Spence’s Trial Lawyers College and delivered speeches nationwide. He entered practice in 2001 after graduating from the University of La Verne College of Law and received his bachelor’s degree from Park University. Rowley has achieved numerous seven- and eight-figure verdicts and was a finalist for the CAALA “Trial Lawyer of the Year” award several times. In 2009, he received the Consumer Attorneys of San Diego’s “Outstanding Trial Lawyeraward.

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