Time to make some changes

Say “No” to cheap settlements and “Yes” to trial by fire

2016 January

Seven- and eight-figure verdicts are truly awesome.  The thing is that these big wins are only a very small percentage of the cases being handled in our communities. When I am introduced today, the list of big verdicts is what people hear and it’s gotten to the point where I have been called for advice one too many times with the preface, “I know this isn’t worth your time because it’s not a big multi-million dollar case.”

Recently, when coming in last minute on a trial to help on a “smaller case,” the defense lawyer approached me and said “Rowley, why are you messing around with a case like this?” This got me thinking about a false impression that exists about many of us who have been lucky to have a role in achieving big verdicts, where we came from, how important all cases are, big and small, and what I believe is the biggest problem in our civil justice system.

In addition to my thoughts, I have done some raw investigation, a bit of historical analysis of my own personal experiences over the past fifteen years, and gathered insight from more than a handful of reliable people in our organization.

Based on this, I have some beliefs to share and maybe even the beginning of a solution to what I am confident all of you reading will agree is a catastrophic problem that is only worsening.

Small but worthy cases don’t get resonable compensation

Over the past fifteen years our civil-justice system has gotten worse when it comes to achieving reasonable compensation for injury victims and families who don’t fall into the “big grandiose case category.” As times have changed, the insurance companies have become much stronger and bolder than they used to be. They have offered less and less to settle legitimate cases and, through propagandizing our jurors about the so-called “frivolous lawsuit problem,” they have succeeded in setting up a system where cheap offers and frivolous defenses have become the norm.

The industry practice today is denying claims, treating victims as if they are frivolous, greedy, and lawsuit-happy people, and pushing cases to trial that should be settled. The result is that fewer and fewer cases are being tried because fewer lawyers are pushing back. The insurance companies are smart and know with precision who tries cases, who doesn’t, what past cases have been settled for, and which cases aren’t worthy enough for a capable trial lawyer to step in.

The insurance companies have the high-volume plaintiff firms working so hard running around chasing the carrot on other cases that there isn’t enough time or resources to take even 10 percent of the worthy cases to trial. And, when courage does get mustered up on some of these “10 percent” cases, the insurance companies have a cookie-cutter strategy that beats the client and lawyer down in a way that matches up with the propaganda we have all been fed.

Medical costs are “built-up” only to be torn down

The way cases are being “built up” to achieve reasonable compensation is to have the injury victims submit to risky medical procedures. Then the defense has experts who say the procedures were unnecessary and multiples of what reasonable costs should be. Cases are being defined and valued based on shoddy MRI scans that show bulges that we all have and open the door to defense experts to say it’s nothing but degeneration. The jurors are then focused on deciding the case on MRI films which four different doctors would interpret four different ways, rather than making a decision based on compelling and true human stories of injury and damage.

The belief many lawyers have is that in order to get reasonable value on a case, a bunch of experts have to be retained to explain the truth; the costs associated with building a case makes it impossible for most cases to be pushed to trial and almost all these cases end up in unsuccessful mediation.

Mediation is part of the defense strategy

What we all know is that many mediations are just part of the defense strategy of cheapening justice and beating down the injury victim and lawyer.  More often than not I am told that the mediation was a waste of time. This all works to the benefit of the insurance company, almost every time. The mediator does his or her best and is played by the insurance company who doesn’t give any control to the insurance lawyer; the insured defendant never shows up because his or her involvement is only to sit as a pawn at trial to defraud the jury into believing that an individual is being sued. The mediation ends with the plaintiff’s lawyer leaving with clients who feel let down and betrayed, and this results in disconnect and more lack of the caring and trusting relationship that is needed in order to go to trial and win. It is a rare occasion when something different occurs and the insurance company is taught a lesson. It is such a rare occasion that when it does happen, it is like a fly biting a bull.

This is what is happening in our civil-justice system and nobody is talking about it.

We don’t want to hear it because we would rather hear about the dragon being slayed where the big corporation, insurance companies and/or their hired guns took that big hard hit: The cases where justice is achieved for a deserving catastrophic-injury victim and family, and we all toast our glasses to the great victory.

Big verdict, minor impact on the insurer

You know what I am talking about, those verdicts that are Trial Lawyer of the Year worthy! I love the feeling of those big victories as much as anybody and am happy when others succeed. I am not writing here to instruct on how to get a great giant verdict – I’ll leave that for others to do for the moment.

What I want to talk about is a chronic problem that will be the death of our civil justice system as we currently know it. Talking about large verdicts is important for this purpose.

Here is what you need to know. When one of us hits a big jury verdict – seven- or eight-figures – it doesn’t really hurt the insurance company as much as we think. Imagine shooting a bullet into a giant Marshmallow Man or King Kong for that matter. There might be a stutter for a minute, but not much more than that. This is because the insurance companies can afford to bleed.  Limitless money, this is what our enemy has running through its veins to fight us with. Getting hit, even really hard, on one case doesn’t hurt the insurance company very badly.

Changing the system

So, now that you have heard what I have to say about the problem, I hope you are ready to hear and be part of the solution. Insurance companies successfully operate based on their ability to predict the future. Risks really aren’t risks because they are calculated and anticipated such that when the “worst case scenarios” occur it’s no surprise and doesn’t hurt. Therefore, nothing changes. It’s business as usual for the insurance company. The insurance companies are smart and want to make more and more money so they squeeze where they know they can get away with it and upon succeeding at defeating the weakest among us start coming after the stronger. Those who are really dangerous, the insurance companies try to befriend, buy off, and bring into organizations that benefit the insurance industry. Let’s not be a part of that.

The big verdicts that happen each year are mostly predictable. Show us a clear liability multi-figure case in the right hands and we will eventually see the expected result. Let’s make things unpredictable by stepping up and trying cases where the insurance companies don’t see us coming.

A case does not live or die on an MRI. The human story is what prevails, and we can successfully try many more cases with true undeniable human stories if that is where we put our focus.

Most lawyers and injury victims I talk to say it’s getting worse. Big name insurance companies are doing things like only offering $1,500 on cases that are worth much more where good people have been truly hurt and damaged.

Trying the smaller case

The bottom line is that all of us have to start trying the smaller and mid-level cases, and have the courage to stand strong and say “no, that’s not enough, we are going to trial.” We need to say no to hundreds of thousands when we know a million dollars isn’t fair trade for what the clients have endured. We need to say no to $1,500 when we know the human loss is worth 50 or a hundred times more.

The insurance companies know our middle ground is weak. They have sized us up and are pushing more and more cases to trial. They know our numbers are shrinking and believe that over time they can offer less and less and get away with it. Unless we all step up and start trying more cases – and the big guys step down and try some smaller cases – our middle ground will erode and then the smallest and weakest will fade away. Let’s not let that happen.

We all know this is the truth, but the question is whether we will accept responsibility for the problem, make a decision to revolt, and have the courage to effectuate a solution. Talk is cheap, trials are expensive and time consuming, but saying no to cheap settlements and going to trial is the solution and we can make things better.

The insurance companies and their defense firms have become more rude, cheap, and crass on the small and mid-level cases because we have failed. Big cases get big attention because big money is involved. Mid-level cases don’t get as much attention and the smaller ones get hardly any. Many lawyers, who figure out how to fight their way through the gauntlet to where they get the bigger cases, don’t look back.  The skill set and tools they developed along the way disappear from the mainstream battlefields where we are losing most of the battles. I have been guilty of that.

When our enemy sees those of us who they fear most leave the mainstream battlefield, they strengthen their forces, move in for the kill, and take no prisoners. The consequence of our warriors losing the smaller battles is a lack of willingness to step back into battle again unless the case is an obvious winner: big injuries and huge damages – a small percentage of the cases.  We need to get back to our roots.

Reliving a memory

As I sat across the table from one of the trial lawyers I’ve looked up to the most in this world, I relived a memory and remembered my roots. Mike Bidart and Tom Girardi always took the time to come to our little law school in La Verne and talk to us. I first met them in 1998 and I wanted to be like them when I grew up. As soon as I could, I became a certified law student, made court appearances, took depositions, and even did my first trials throughout the Inland Empire. One time I even got to go to fancy Beverly Hills and sit second chair on a MIST case, which is when I first learned what a nonsuit was!

Mike Bidart always made sure to go out of his way to talk to me (he was not the lawyer who got nonsuited) and would give me advice anytime I needed it. After taking the bar exam in 2002 and winning one of my first medical malpractice trials, I was at a restaurant in Claremont and Mr. Bidart came up to me and gave me a giant bear hug I’ll never forget. He was proud and it meant the world to me.

The verdict was $260,000 and the trial took a month. I was actually embarrassed about the case because I had asked for a million dollars and shed tears in my closing argument not knowing then how to filter my anger at the defense attorney, a past ABOTA president, for treating the woman I represented as badly as he did.

I quickly told Mr. Bidart it wasn’t the verdict I had asked for and that it wasn’t anything compared to the great verdicts other lawyers got. I told him how I had asked for a million dollars and that the jury took three days to deliberate. Mr. Bidart stopped me mid-sentence and said, “you asked for a million dollars, good for you, they took three days to deliberate because some of those jurors wanted to give it to your client.” He then went on to tell me (and when Mike Bidart tells you something, you believe it) that trying tough cases like that is just as important as the big ones. He told me that winning the smaller cases and even going to trial when you know you will probably lose makes a huge difference because it shows the insurance companies we will take them on. I called him once after losing a case, and he told me the best trial lawyers try tough cases and risk losing.

As I tried more and more cases I saw the settlements go up and up. I didn’t have big cases back then, not for many years. I tried five-figure cases, criminal-defense cases, anything I could get my hands on that was worth the fight. Eventually, the bigger cases started coming along with large settlements and verdicts; as a consequence, the smaller cases started settling for a lot more. I never truly thought it was anything special about me, and I now know the enemy paid more because of the uncertainty factor arising from my motto of “try any case, anytime, anywhere.”

Fast forward to today, 2015

It has only been of late that I have taken the time to look at other firms’ cases and this was prompted because a good friend and trial lawyer, who I love, was dealing with a difficult insurance defense lawyer on a conflict with a trial starting in a certain courtroom on a certain date. That date conflicted with my friend’s wedding and honeymoon.

The offer on the MIST case was $7,500 and the insurance defense lawyer was being difficult. It pissed me off. The case was worth the $50K policy, and the insurance company was being cheap and rude. The client was sitting right there in the trial assignment department in downtown Los Angeles. I was in jeans and a tee shirt because I was sitting as a mock juror and giving input on a trial across the hall.  I said I’d try the case.

Over the weekend I re-read David Ball and Don Keenan’s book on the Reptile approach to MIST cases, got to know the file and the client, and showed up to pick the jury. As the jurors gathered in the hall, the insurance company offered the $50K. It felt great. It reminded me of my old self. This stirred me up and prompted what I have done the past few weeks, some of what I have told you already, the rest of which I will say now.

Legitimate cases sold out cheap

Over the past few months, I have visited a number of law firms that do high-volume work. I have gone over the files, demands vs. offers, and settlements for 2015. I was blown away and saddened by what I saw. It angered me. I was looking for big cases for a few more glory days. Taking the time to consider cases that are not just clear liability and huge damages, I have reawakened to the discovery that there are thousands of legitimate cases with real injuries being sold out cheap. These are the cases around which I built my trial skills and passion with, but as of late have not cared about the way a truly dedicated warrior in our justice system should.

The thing is that I have the time – many of us who do big cases have the time to dedicate to trying a few not-so-big cases each year. This is because big cases get continued, delayed and settled all the time, which results in the six to eight weeks that were set aside for the big case freeing up. Maybe not all six to eight weeks free up, but one or two certainly do and that is when those of us who try cases regularly should put out the word that we are available to try a case or help somebody who has the courage to do it alone. If we do this and help each other take the not-so-big-and-hot cases to trial, the insurance companies are going to have no choice but to change the cheap way that they do things.

Keep them guessing

This is because they will be unable to predict who will show up for trial. For those who have a high volume of cases, pick a handful and don’t negotiate the usual way. Send a 998 for a fair number and when it isn’t paid, all bets are off and that case goes to trial. There are many willing and capable lawyers who just want to try cases. Put in the work and try a few yourself and you will see the value of your other cases soar.

So, how do we try cases in a clear, short, simple, and cost-effective way? For those of you who don’t know him, let me introduce Pejman (Pej) Ben-Cohen. He thought about changing his name to Paul or Pete because of the negative connotation to having a Persian name as a trial lawyer, but his father said he would be a disgrace if he did and I am proud that he didn’t. Pej has been trying cases left and right, has committed himself to mastering the jury trial method, and I vouch for him as a trial lawyer. He has been mentored by Arash Homampour and a few other great trial lawyers including Joseph Low and Gerry Spence. Pej and I have recently tried a few cases against Allstate including a case we tried together employing the following Trial by Fire (burn down the frivolous defenses) steps:

Last minute preparation on your newest trial

The call comes in and you are asked to try a case at the 11th hour.

• DO: Meet the client and the person who can best tell you about his or her injuries and damages right away. Don’t be a skeptic. Listen with an open heart and mind. Imagine yourself going through everything that this human has experienced.

You need to know the human being: go through a blank timeline and calendar from the date of the injury to the present and listen to what they have gone through. Then, when you look at the other stuff, which probably isn’t all that great anyhow, you will be able to fill in the gaps and know what is right and wrong.

Go to the scene where the injury occurred. If it’s a med-mal case, go to the hospital or medical group, walk around, feel what it is like to be there. If it is a car wreck case go to the scene and drive it, stop and get out, learn the landscape. If it is a premises case at Wal-Mart buy yourself a new outfit!

• DON’T: Stereotype the client by adding up the medical bills to decide what the case is worth or spend a number of hours reading through depositions and records that don’t tell a cohesive human story.

Jury selection

• DO: Ask for a mini opening and don’t oversell or argue the case. Tell the jury what you are asking for and why. Give a range if you are unsure. Point out what the defense is going to argue and then provide a counter for each defense argument. In voir dire, especially when you are limited in time by the judge, focus on connecting with the jury. Look each one of them in their eyes and see who they are as “human beings” and not as jurors. Embrace them. Understand that they are a part of your team trying to help you get justice for your client.
• DON’T: Try to sell your case in the mini-opening or in voir dire. The jurors will see right through it and will think you are just another greedy plaintiff’s lawyer trying to get money. You have not gained the credibility of the jury and to come out arguing won’t do you any good.

Opening statement

• DO: Start with liability. This is a case of 100 percent negligence where the [defendant] is 100 percent at fault for causing a car wreck. This is something that has already been established in this case. The only question is: what happened to the human being who I represent and what is it worth over [x] years?

Or, this is a case of shared responsibility. The young man sitting here who I represent was negligent. He played a part in hurting himself. He owns that, he admits it; he will tell you what he did and how he has lived with the consequences. We are here because the Defense does not accept any responsibility, so we need to have a trial and we need your help.

Tell the jury once again what you are asking for and why. Give a specific range of money because this is a money case. If you can’t talk about it by now, you are not going to get any better by closing argument. And the jurors deserve to know from the outset what the range is so they can evaluate the case as it goes. Don’t worry if the range changes. Be honest with the jurors about it in the end, maybe the evidence will justify a verdict by 9 out of 12 of them for less and maybe it will be more. Tell them that in opening. Empower the jury. Go over the items of damages that match up with the human losses in the jury instructions and do it with precision and examples by way of stories and what the life expectancy is. Explain what past damages are and future damages.

• DON’T: Be overly emotional or dramatic in your opening statement. It is better to undersell than it is to oversell the case. Credibility is what wins an opening statement. Simply state the facts through a human story.
• DO: Let the defense have a long rope during their opening and then hang the defense lawyer with your first witness. Show during the defense opening that you are not afraid. Be calm and collected and write down notes of the specific things that are said by the defense lawyer that you know are untrue.

Your case in chief/direct examination

• DO: Put your best foot forward. Tell the story of your client through your witnesses. And you MUST have witnesses other than your client talk about how the crash has affected him or her.
• DON’T: Ask useless questions. Get to the point and don’t waste the jury’s time.

Cross examination

• DO: Advance your case with each witness. If you prove a fact through an adverse witness, the fact sticks.

Trust your jury. What you might think will take an hour and a half might be better accomplished in 20 minutes.

• DON’T: Ask questions you don’t know the answers to. Don’t jump into the cage with expert witnesses because they are trained at avoiding answering your questions relating to medicine or accident reconstruction or biomechanics. Hit the expert with four or five points and stop. This is the hardest thing to do as a trial lawyer. You have to know when to STOP. Think about it this way – if you are watching a bully beat up on a child who would you identify with? The child. No matter what the child did wrong, you will have feelings of sympathy towards the child.

Closing argument

• DO: Reverse roles with the jury and ask yourself, “If I was a juror and I was sitting through this trial, what would I want to hear in closing?” Empower the jury and remind them of what their role is and make sure they understand that they only need 9 out of 12 to answer “yes” to each question. Talk about the burden of proof and remind them that they can have all the doubt that they want, but if at the end of the day you prove your case by a feather more than the defense, then you win. Explain to them that they “MUST” award pain and suffering damages as stated in the jury instruction. Go through each of the pain and suffering elements under the CACI instructions and give human examples from your client’s story.
• DON’T: Regurgitate the evidence. Trust that the jury heard and listened to it throughout the trial. Hit the key points. Do not leave it to the jury to decide general damages or pain and suffering – give them a formula to use.

Rebuttal

• DO: Have your rebuttal prepared before you listen to the defense lawyer speak.
• DON’T: Get thrown off your course by being emotionally influenced by the defense lawyer’s closing.

Conclusion

I propose that together we find 50 cases for 2016 and have them lined up for trial by January 15th. My commitment will be to look at each case, meet with the injury victim and family, help prepare the lawyer who wants to try the case and/or help find a capable trial lawyer who will help. We all commit to donating a portion of the attorney’s fees to the Los Angeles Trial Lawyers Charities (“LATLC”), of which Pej served as the second founding president.

Together we can learn how to efficiently get more small and mid-level cases to and through trial with only a few hours of a case in chief, picking a good honest jury, using one medical witness, and committing to telling the human stories of the injury victim and family.

By the end of 2016, we will see how the stats turn out, and I will report back with brutal honesty. I am willing to bet our time and even some of our money that we can effectuate the beginning of change that has a monumental impact on the lives of good human beings who are deserving of justice.

We are not alone in this. My firm, including Joseph Low who is the chief of our special ops trial team, Pej, Bob Simon and his army, Gary Dordick, Garo Mardirossian, Ashley Parris, and others are all willing to help. There are many others. Let’s make some change!