I just finished two jury trials, both resulting in seven-figure verdicts, and want to share some insights from them. Both are good examples of doing what I call “Taking & Breaking the Heart of Defense’s Case”. The defense almost always builds its case around one or two central themes. It is easy to figure out what they are because defense counsel will talk about them at hearings, depositions, mediations and when they have you cornered in elevators. Some of the most valuable time you will ever spend on a case is focusing on how to wreck those central themes. Most defense lawyers do not adjust well. If you take away the heart of their case, they are lost.
To make the point, let me talk to you about the first of the two recent cases. I tried that one with my partners Matt Morgan and Nick Russo. It was a car crash with a herniated disk in the low back of a man in his 20s. There was no surgery, but there were injections and nerve ablations. The heart of defense’s case was built around a bunch of pictures posted on social media by our client, who was living an active life. He was into competitive team rowing. The pictures taken after the crash showed him rowing, winning medals, and helping carry the crew boat over his head with teammates. There were other pictures with him and his friends drinking and laughing, typical stuff you see on social media capturing the best of times. The defense also had surveillance of our client carrying two twelve-packs of beer on his right side (one under his arm, the other in his right hand) and putting them in the trunk of his car, then heading to the beach with friends. None of this was inconsistent with his testimony, it just excited the defense because he appeared fine on the outside. The defense used all of this to support a clever theme of “Does it look like he has lost the capacity for enjoyment of life?” One of the elements of pain and suffering damages in Florida is “loss of the capacity for enjoyment of life”.
The rest of the defense was typical. They denied there was a herniation. They tried to blame his sudden onset of pain on a sprain/strain. They claimed any pain after a month or so was due to early degenerative changes in his low back from all the rowing (he’d been into competitive rowing since his mid-teens). To support this defense, they seized on a couple of chiropractor visits two years before the crash for low back pain related to his rowing.
How did we take and break the heart of the defense? We headed them off at the pass with these three key pieces: 1) This is not the kind of injury you can assess from the outside (you can’t judge a book by its cover), it requires an internal assessment with MRIs, and MRIs don’t lie, you will see the damaged spine with your own eyes ; 2) He’s living on injections and ablations to keep up with his friends who are the same age; 3) This as good as it’s going to get for him. It will only get worse with time as the natural aging process overlays on top of the damaged link in his spine, and this is a verdict for all time. We get it right now or we don’t get it right at all. The fact he is bucking up, not giving up, should be cause for respect, not an excuse to deflect from the reality of this forever injury in the hinge joint of his back.
In closing, we brought it full circle. I told the jury, when I was younger, I played football. The whole idea was to knock people to the ground. All we did was hit the ground and bounce back up, then do it again and again. Now, if I drop a quarter and it rolls under the coffee table, I have to come up with a plan for how I’m going to get down there, then get back up again! The good news is for most people this happens gradually over many decades. There is time to
adjust to this slow process of aging. That natural process is not what happened to Mr. Jones. One moment he had a young athlete’s back, and the next moment he had a badly damage link in his spine, one that required injections and surgically burned nerves just to keep up with his buddies. Because of his preexisting fitness, he has been able to maintain many of his activities, with the help of needles and cauterizing tools, for now. But where will he be in ten years when he’s in his mid 30s? What about 20 years, when he’s in his 40s? He is going to have an old person’s spine that makes it hard to do things that should come easy during this phase of his life. It will continue to spiral downhill for him. It will not be the normal slow decline that doesn’t become a problem until late in life. This was thrust into his life unnaturally and it is only going to get worse. You took an oath to assess fully what was taken from him in the way of health, not just yesterday, not just today, but for the rest of his life. They want to talk about the impact on enjoyment of life, then let’s talk about it, but not in some sterilized vacuum created by posed snapshots from social media of a young person trying to celebrate youth, but in the real world over the course of decades living with a broken disk, deteriorating further with every year; the world in which no one will be posting pictures about and celebrating.
By recognizing this central theme of the defense, we were able to stop the whole thing in its tracks. The jury got it. They returned a pain and suffering verdict of $300,000 for the past and 5 million dollars for the future. The total verdict was for 6.64m which included 140,000 in past medical expenses and 1.2 million for future medical expenses (the biggest part of which was the likelihood of a spinal stimulator in the future). It was a fair and just outcome based on the evidence. On the road to this righteous result, we were able to take and break the heart of the defense. I would urge you to follow this process in every case: find the core of the defense and crush it.
A big part of getting verdicts like this one, that fully recognize the magnitude of what was taken in the way of health, is using a system I call the “Maximum Justice Matrix”. It is too important and requires more space than a page or two to lay it out here. If you want to learn it, I detail every step of it in my new book “Deeper Cuts” which is on the verge of being released. You can preorder it on TrialGuide’s website. If you want a copy, preordering is the quickest way to get one, because they need to know how many more to print in light of heavy presales that have already occurred in the first week.