We talk a lot about “believing”. It is the “sine qua non” of what we do (without which there is nothing). I want to convert that indispensable ideal into something concrete. Believing is a matter of the heart. While some clients are easier to love than others, there is a constant we can always wholeheartedly believe in. That constant is the underlying cause we fight for. The universal cause we can all get behind is standing up for our clients against bad guys and their bully lawyers. Bad guys and bullies deserve a beating. That doesn’t change just because the people they hurt aren’t always perfect.
We have a name for people who fight bad guys and bullies, we call them “heroes”. We celebrate them in real life and cheer for them in stories, think about all the Superhero movies. From time to time everyone dreams of doing heroic deeds. We get to do them for a living!
Do guardians ever say, “It looks like a tough fight, or the victims are a little rough around the edges, so I’ll pass on this one, they’ll have to fend for themselves”? No, they don’t back down; it’s not in their DNA. They are courageous and unflappable. The greater the challenge, the greater the opportunity to rise up and shine.
The beginning of believing in your cases is believing in your heroic calling. The next step is to find the reason a particular defendant needs to be brought to justice. Your law firm is like a branch of the Justice Department for righting civil wrongs. The lawyers are the League of Justice. Bad guys and bullies need to be made to pay and we are the reckoning. That need is not lessened by the number of obstacles thrown in your way, nor by the defense’s relentless efforts to make it seem as if those who were wronged are not worthy of justice.
Talking to lawyers I can tell sometimes their hearts aren’t in a case because of liability “bruises” or their client’s imperfections that the other side is rattling around like a sabre. That lukewarm feeling about cases will sap you of your powers, like kryptonite. After a while it will rob you of that one-of-a-kind joy which comes with living the life of a hero. Every case has bruises and imperfections to one degree or another. You cannot let that stand in the way of your mission as an Equalizer. Remember, your powers are forged in fire.
I want to share a process for maintaining the might of being right in spite of your arch enemy’s best efforts to demoralize you. It is all about seizing the moral high ground that is rightfully yours. It is a process that engages my heart and ignites a burning desire to prevent injustice from occurring on my watch. The power of this process comes from anchoring your view of the case to the original villainous misconduct, then never allowing your heart to become unmoored by the challenges that follow. I call it “Getting to the heart of the matter”.
Grocery store slip and fall example
Before you get into legal defenses, excuses and bruises, stop and think about the big picture. There is a fundamental right and wrong at stake here. Shopping should not be a dangerous activity. Customers should not have to watch every step like they were walking in a junkyard or be on high alert for patches that are as slick as a Slip and Slide while looking for broccoli or Rice-a-Roni.
Let’s Golden Rule ourselves, which is a ritual we should be practicing every day, like prayer or meditation. What if it was you shopping in a store, minding your own business, when you suddenly hit a spot where the floor was so slick your feet instantly slid out from under you,
causing you to slam down onto the rock-hard floor and changing your life forever. Would there be any doubt in your mind who was at fault?
Now let’s add in some more facts. You learn the store chose a floor that has zero tolerance for moisture; when it gets the slightest bit wet it instantly turns as slick as ice. The store absolutely knew of this ultra-dangerous condition. The store knew the floor often turns slick as ice since there is no way to keep moisture from getting on the floor with the products they sell. The store knows customers cannot protect themselves from this danger, their attention is being directed up at the shelves and most are pushing carts that block their view of the floor. Plus, they have no reason to tiptoe around watching every step in a store where it’s supposed to be safe to walk. Given these circumstances, it’s not just foreseeable that bad injuries will occur, it is certain they will occur repeatedly. Think of how all this would make you feel, if you were now living with hardware in a limb?
But we’re not done. Next you find out that every time a customer hits the floor and gets hurt, the store tries to hide behind the same excuses: lack of notice and policies designed to protect themselves, not their customers. The store refuses to do what it takes to make its floors safe and its policies work, they’re counting on getting a free pass. The store plans on getting away with it in your case too. The store has no intention of changing its ways. The store act as if it has diplomatic immunity, fearless of consequences.
We’re still not done. After all, that the store and its bully lawyers are going to attack you and try to put you on trial. They will do everything in their power to paint you in a bad light; to suggest you’re the villain and the store is the victim. They’ll suggest you’re milking your injuries as part of a scam to make money. They may even argue there was nothing on the floor; you either faked the fall or suddenly forgot how to walk and spontaneously collapsed to the ground.
Now we’re getting to the heart of the matter. As the client, you’re counting on a champion to stand up to the bad guys and bullies. As the lawyer, you’re feeling it: the righteous indignation that drives you to fight for what’s right; the steely determination needed to win even when the odds are against you; the surplus of adrenaline that heroes tap into as a catalyst to transform them for battle. Now that you believe in the cause, let them try to throw sticks and stones at you. You know how to snatch them out of the air and pummel the tormentors with their own worn-out weapons.
Cones for spills example
The bad guys and bullies will try to scare you off by showing photos of cones put out after a spill to suggest your client was a reckless fool and you are too if you pursue this case. Let’s get to the heart of the matter on cones. The old cone trick won’t work on us, we’re onto it. Cones almost always make spills more dangerous, not less, until the mopped floor air dries. Mopping doesn’t eliminate the danger; it temporarily spreads the zone of danger. The mop leaves moisture all over the place. Putting a cone where the original spill was is misleading, it creates a false impression of safety. Cones funnel people smack into the surrounding slick area created by a mop and bucket. It’s like walking customers into a trap.
The way stores use cones is outrageous. They mop, and run, without taking the time to dry the wet, dangerous mess with towels. The only safe way to mop during store hours is to bring towels and dry the area before leaving. While this is going on, warn people off from the entire areas until it’s all dry. The store needs to close the aisle until it is safe to walk down
again. Instead, they slap a cone down and walk away knowing they’re leaving behind a damp, slick floor that extends well beyond the base of the cone. The store does this knowing full well cones don’t mean “turn back, this aisle, this entire area is closed for business”. Cones mean just the opposite, “come on down, just veer around the spot where the cone is placed”. Why don’t they close the aisle until it is safe and dry? Because they don’t want to lose the sale of even one box of frozen sausage biscuit or waffles.
Now that we’ve gotten to the heart of the matter, I bet no one is feeling like running away from a plastic cone that’s more like a nerf gun, than a real threat. I bet you’re feeling the hero’s call. I bet you’re itching for a fight.
Trip & fall/ open & obvious example
Let’s get to the heart of the matter with the open and obvious defense in trip and falls. Let’s go back to the Golden Rule. When you walk to lunch downtown on a sidewalk, do you stare at your feet like you would in a junkyard? Do other people gingerly put their feet down as they navigate each step on their way to lunch? Of course not! If they did, people would be conking heads all over the place, we’d have an epidemic of TBIs. It’s called a sidewalk because it’s supposed to be safe for walking. If a piece of sidewalk is sticking up, is it seeable? Yes. Does that mean it will be seen? No, not under those circumstances. Whose duty is it to keep an eagle on the the sidewalk? The owner. Is it open and obvious to the owner who has the duty to inspect it? Yes, of course it is. If they don’t fix it, will someone end up getting hurt? No question about it. Will the injury be bad? Probably, because the fall will be unexpected, awkward and onto concrete.
What if you were talking to a friend on the way to lunch and suddenly tripped on a raised piece of concrete, smashed your face on the pavement, breaking bones, leaving you with a loss of smell and taste for the rest of your life. How would you feel if the devious owner tried to blame you by saying he let the condition get so bad, it’s no longer his problem? What if you found out the owner knew about the dangerous tripping hazard and did nothing about it for months? You’d be livid and demand justice. You’d expect your chosen protector to be “all in” on your side fighting against the forces trying to turn the tables unfairly on you.
You would be pleased to learn it’s not so easy for bad guys and bullies to get away with passing the blame off on you for their wrongs. They can’t just say it’s your fault, they to prove it. It’s not enough for them to say you could have seen the piece sticking up or that someone else would have seen it. They have to prove you did something wrong, something unreasonable. The chances of them pulling that off are slim because you did nothing wrong under the circumstances. It’s not unreasonable to walk on a sidewalk while looking at something other than where your feet are landing with every step.
Having gotten to the heart of the matter, once again I am sure this is a battle you would believe in and get behind wholeheartedly.
Car crash example
Let’s do the process once more, this time with a typical car crash case. The defendant wasn’t paying attention on the road and crashed into your spouse, who was trying to get home for the evening. One of the links in your spouse’s spine was damaged in the collision and will
never be the same. He/she will live never be rid of this pain that was thrust into their life unnaturally. Treatments help some, but nothing will return him/her to their pre-crash baseline. How would you feel if the perpetrator’s lawyer started going after your spouse, saying he/she wasn’t seriously hurt? What if that bully was trying to make it look like you and your spouse are part of a conspiracy to defraud the insurance company in an orchestrated money grab? What would your reaction be when they tried to exploit some past episodes of temporary back pain, like those that almost all adults have been through? Would it seem fair for the defense to use those temporary pains that went away years ago and never came back to make it seem like they were the cause of your spouse’s new, never-ending pain? Would you be pointing out that doesn’t make sense, he/she didn’t have pain for two years before the crash, the pain started at the time of the crash and never went away?
What would you think when the bully defense lawyer claimed that metal wasn’t mangled on your spouse’s car so he/she couldn’t have suffered a serious injury, knowing full well it’s not the crushing of metal that causes injury to the hinge joints in the spine, it’s the unexpected, awkward jarring? Would you be even more upset when defense counsel started talking out of both sides of his mouth? In one breath, claiming there’s not enough property damage to hurt a flea. In the next breath, having his hired sidekick doctor sugarcoat the injury, calling it a sprain/ strain, meaning the crash did hurt the flea. Wouldn’t you be asking how can they get away with throwing different things up to see if any of them stick?
How would you feel about the defense bully picking at the medical records and misusing a few entries that are out of step with all the rest of the evidence to paint a false picture? Wouldn’t that be even more offensive given the fact MRI’s prove your spouse has broken disks that happened in the crash? How would you like it if, on top of all that, they tried to blame your wife’s pain on the natural aging process, as if that would explain the sudden onset of symptoms?
What if there was a period of time where your spouse got frustrated after she learned there was no cure and stopped making doctors’ appointment, since every time she went it would eat up a half-day away from work and family. Would you think it was fair to claim that must mean her pain disappeared? Would you expect your lawyer to treat your spouse’s case as if it belonged in the discount bin just because the defense was jumping to that ridiculous conclusion? Whose side would you expect your lawyer to take?
Now let’s step out of the client’s shoes and into your lawyer shoes. Are you going to let the defense mock your client’s injuries and attack their integrity, with you standing right there? No way, that’s what cowards do, and you are no coward. You are going to stand up for your client. Why? Because you have a calling and the heart of a hero.
You don’t need perfect cases; you have righteous causes. Focusing on the tactics of bad guys and bullies gets to the heart of the matter. That’s where it all begins. That’s where you return to when distractions arise. It reminds you of why you fight. It reminds you of why you are right. It keeps you from losing your bearings or growing weary. Heroes don’t bow down, or wear down, they hunker down. Don’t ever lose sight of who and what you are fighting against. Don’t ever let them get away with pushing your clients around. Don’t ever let them spit on Superman’s/ Superwoman’s cape.