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The Judge Taught Me How to Tie the Expert’s Hands

Man with hands bound
Man with hands bound
Have your depositions questions really tied the expert’s hands?

 

Yesterday, I finished a nine-week legal malpractice trial receiving an 8-figure verdict. The judge, before whom I tried the case taught me an important lesson concerning experts when the defense attorney sought to tie the hands of one of my experts.

Near the end of my case, I am arranging exhibits and demonstratives I intend to use with my valuation expert. He is the lynch pin of the damage verdict I obtained against an attorney who ruined a business that was the first to the American market with an organic tequila. My expert has prepared valuation figures for the business to establish the harms and losses the malpractice caused. My opponent is a wily old strategist who over almost 45 years has established not only a formidable reputation for winning impossible cases, but an almost perfect 155 and 3 trial record.

Defendant’s Attack on My Expert

Before the court room attendant ushers the jury into the courtroom, my opponent rises and argues that my expert, who will deliver the big damage testimony for me, should not be allowed to testify because “There is no factual basis to support the opinion.”

I respond, “Your honor, my opponent is mistaken. The expert has spoken with an officer of the company he has identified as a comparable business. He obtained the information confirming the assumptions he made and testified to during his deposition.”

The attack on this most important witness begins when the defense attorney seeks to prevent his reference to the information from the company officer.

The judge asks, “On what basis do you think I should exclude the testimony of the expert?”

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Charity on the Subway – Who Blessed Who?

Several weeks ago, I rode the morning subway to Los Angeles to attend a deposition. An older man, bent over, lean, unbathed, walked through the subway car, hat in hand, begging. Everyone ignored him and turned from him. I tossed a handful of change into his hat.

He said, “God bless you.”

Without thinking, I said, “I hope he does.”bigstock-Homeless-Man-Thinking-52716556

My stop came and I exited the subway. I did not know which direction to go to get to the proper exit. I was walking to the stairs and saw the man walking ahead of me. I asked him for directions.

He articulately described how I could get to where I was going, then he said, “But you got off one exit early — reboard the train and go to the next stop. It will be much easier.”

I said, “Thank you for blessing me.”

He smiled and said, “It’s not me who blesses. I just provide the opportunity for receiving a blessing.”

Since that morning I have thought often about the lesson the man taught me. As I spend my overworked life concentrating on accumulating education, money, things, status, power, I miss the opportunities to add meaning to my life, not because I lack the desire, but because my focus confuses me as to what is really important.

No one paid attention to him. No one cared for him, and yet in a moment, he shared with me something truly important to me. I suspect that he would have given me directions regardless of whether I put money in his hat or not. The directions did not matter that much in the grand scheme of things, but imagine the personal loss I would have suffered had I not spoken with someone who everyone else ignored. He taught me that sometimes charity’s greatest gift is to the giver, not the recipient. I had an experience with a truly noble spirit who many thought of as having little worth. I recognize him as having shared with me, the blessing of perspective.

How many opportunities do we miss to live because we are concentrating only on making a living. At the end of the day, it will be the experiences of meaning that have shaped us and made us what we will become that matter the most – it will be the blessings we receive for caring for others that will matter most to us, and those who fondly will remember us.

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Decisions: How Do Judges and Jurors Really Decide?

Last week I went to trial on a dispute between a young man and his grandparents. I represented the young man. He sued his father and grandparents charging they had stolen $300,000 from a trust set up to provide funding for tuition, living expenses, room and board while he was in college.

The trust was funded by the young man’s mother through a divorce judgment that specified that part of the money she was paying to equalize the property division (buying dead beat dad out of her businesses) would fund the trust with the father and the grandfather listed as the trustees. She fully funded the account.

“You can’t win this case, Young.”

Everyone told me I couldn’t win the case. “The grandparents are old and sympathetic.” The grandparents pleaded, “We did not know there was a trust. No body told us.” They claimed they never saw the divorce judgment and thought the money belonged to my client’s father. They said they acted only on the father’s instructions. Finally, after the father had taken all the money, the mother signed an amendment to the judgment in the divorce that provided that the mother waived the trust account and waived any accounting of the account.

Friends said, “Run, Steve. Run. You can’t win this one.”

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Would you have gone to jail for a client?

Businessman in handcuffs

Do What is Right, Let the Consequences Follow

I believe we must do what is right, let the consequences follow. The challenge is that sometimes the consequences are negative. Twenty years ago I had an experience that had me saying, “I never felt more humiliated for doing the right thing.” A friend of mine summarized it differently: “Young you big dog! You can’t call yourself a trial lawyer until some asshole judge has put your butt in jail for contempt!”

Businessman in handcuffs

I didn’t know if my friend Rob Gill from Louisiana was trying to comfort me, teach me, or was lying to me. I had called to ask Rob, a criminal defense specialist I became friends with in 1996 when we both attended Gerry Spence’s Trial Lawyer’s College for advice on defending a contempt of court.

The Chambers Conference

The fat jowled judge with the ruddy imprint of alcoholism in his cheeks, made no secret of his disdain for my Palestinian client. My client was born in Columbia, spoke Spanish, and had never been to the Middle East, but that made no difference to the judge. He set out to scuttle the case, and drive the case to the result he wanted.

I weathered every storm during the trial, and wondered what the judge had up his sleeve when he invited counsel into chambers. “Well how do you think the jury will rule?”

Opposing counsel felt he would win. I disagreed, feeling my witnesses were convincing on the issue of interference with a commercial lease my client guaranteed.

“Are you kidding?” the judge asked, “I didn’t believe a damn thing those towel heads said.”

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Finding Imbedded Bias During Jury Selection

Forty potential jurors enter the courtroom bringing a unique set of imbedded feelings and values. You and your opponent examine the venire panel and strike the jurors averse to your respective clients. The surviving jurors rise, bring their right arms to the square and swear to “duly and fairly try the matter.” When the verdict is read at the conclusion of trial, the result shocks you and your opponent.

In a post trial ritual you and opposing counsel engage any of the jurors who will remain to talk to you. You are shocked at what the jurors thought the evidence was and how they arrived at their ridiculous verdict. They based their verdict on issues you and your opponent never raised and certainly never argued.

Read the first line of this blog. “Forty potential jurors enter the courtroom bringing a unique set of imbedded feelings and values.” If you don’t ferret out the “imbedded feelings and values” your jury will be ruling on your trial using “untried issues” to decide the case.

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Joan Rivers’ Greatest Lesson to Us.

I inherited my love of comedy from my mother. She had two favorites: Phyllis Diller and Joan Rivers. My mother’s love for Joan Rivers spawned my love for her. Every Friday night my Tivo records the latest installment of Fashion Police, Joan Rivers’ last platform from which she launched her blue and irreverent assaults on celebrity foolishness.

While couched in terms of fashion and clothing, Joan’s sharp-tongued and absolutely fearless humor was more about people acting out in the public eye. She succeeded by saying what everyone else was thinking. She was at her best when she ventured (as she often did) into the blue, “I don’t think I’m good in bed; my husband never said anything, but after we made love he’d take a piece of chalk and outline my body.”

Continue reading “Joan Rivers’ Greatest Lesson to Us.”

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The Good Old Days: Lunch With an Opponent?

I recently handled two very acrimonious cases, one a family partnership dispute and the other a trust litigation among family heirs. In the partnership case, I came into the case shortly before trial, and inherited several years of heated litigation. I knew the opposing attorneys from several legal organizations I am a member of, but had no real relationship with them. In the trust case, I was dealing with an attorney I had never met before. I telephoned both counsel. My request was the same to both, “I’m inviting you to lunch, my treat. I would like to sit down with you and get to know you. We are going to be in this case a while. Maybe there are things we can agree on that can help both sides going forward.” Both attorneys accepted my invitation.

business lunch

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Steve Young’s Brain Injury Interview Checklist

banana peel

How Are Victims of Brain Injury like HAL the Computer?

In “2001 A Space Odyssey,” a computer named HAL runs amok during a flight to Jupiter. HAL was the tender voiced computer that interacted with the astronauts as if he were a crew member. But HAL had a problem. He did not recognize he was malfunctioning (if you’ve seen the movie, you know why I would personify him) and took every step to prevent correction because he “was just fine.” HAL wasn’t fine regardless of what he thought.

Clients with Traumatic Brain Injury (TBI), despite their assurances to the contrary, are not fine either. Throughout the case your client with TBI will deny an impairment, even when confronted with medical confirmation of impairment. That is the nature of the injury. For this reason, you must explore with the client, in detail, his background or symptoms that may warrant deeper investigation.

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In Trial, a Picture is Worth a Million Dollars

matches

DEATH BY POWERPOINT.

Death by PowerPoint is an oft heard complaint against the imprudent practice of putting slides on the screen and reading them to the jury. I reject that use of PowerPoint and I have the Million Dollar verdicts to support my opinion.

I have suffered through attorneys who take their whole close and import it wholesale into PowerPoint, then read the slides to the jury. We know how boring it is to have someone read a talk to us – imagine having someone read a talk that you are able to read faster because it is projected in a screen in front of you.

WHAT’S THE SOLUTION? Continue reading “In Trial, a Picture is Worth a Million Dollars”