Friday, August 28, 2009

Stuff happens? I don't think so

I did several focus groups this week and of course, there were the "stuff (shit) happens" jurors in the groups. In one group, the 57 year old conservative male, who by the way, when asked 3 people he admired jotted down George Bush, Rush Limbaugh and Sarah Palin, started out the deliberation by saying, "well, you know, I say this a polite way but sometimes, stuff happens." Another lady chimed in a few minutes later saying this shoulder dystocia injury was "God's will."
By the way, she could not be swayed to find the doctor negligent under any circumstances. I asked her "what if the doctor was drunk?" It was still "God's will."

Anyways, the "stuff happens" jurors were met by resistance from the most unlikely of sources: a 22 year old male who listed himself on the questionaire as "very conservative." Lately I have found that the 25 and under age group is generally not good for plaintiffs so I was a bit surprised when he challenged the "stuff happens" members of the focus group. He said "stuff doesn't just happen. Stuff happens when someone is negligent, stuff happens when someone isn't careful, stuff happens when someone isn't paying attention. Stuff just doesn't happen."

It was a stirring rebuttal, one that I will probably use in trial at some point.

Here is a short article titled "Accidents Just Don't Happen." I hope you enjoy it.


Whenever there’s an accident, whether the result is a fatality or a broken plate or anything in between, someone is sure to ask: "How did it happen?"
The answer should always be the same: "It didn’t happen; it was caused." And it’s almost always
possible to trace it back to somebody—or several somebodies—who fell down on their job
somewhere along the line. Either they did something they shouldn’t have done, or they failed to do something they should have done.

Let’s suppose, just to illustrate what I’m talking about, that you fall on the stairs at home and break a leg. That accident didn’t "just happen"; there was no evil spirit putting the hex on you or lurking in the shadows to trip you. No, there was at least one quite tangible cause.
The odds are that the fall was your own fault—that some act of yours (or failure to act) was to blame. Maybe you were in a hurry and took the stairs faster than usual—faster than was safe. Maybe you were carrying an awkward load that put you off balance and kept you from grabbing the railing to steady yourself. Maybe you forgot to turn on the light over the staircase. Maybe your eyesight has been playing tricks on you, but you’ve put off seeing an eye doctor and getting proper glasses. There are probably dozens of other "maybes" that boil down to your being the cause of your own fall.

On the other hand, maybe there was someone else involved: one of the children left a toy on the step, or whoever discovered the stair light burnt out failed to replace the bulb. There could even be a combination of causes: You were in a hurry and didn’t turn on the light, so you didn’t see the toy that someone else left there, against the rules.

Accidents on the job don’t "just happen," either. They are caused by the actions or inactions of one or more people.

Now for the good news. Just as people cause accidents to happen, they can prevent them from
happening. That’s the reason for the safe work practices we have established and the posted list of safety rules. It’s why we have regular training sessions to inform and remind you of ways to keep yourselves and your co-workers safe. It’s the reason we provide personal protective equipment that can help keep a potential hazard from causing actual harm.
But no work practices, rules, training, or equipment can prevent an accident from happening. You do that. You follow the lockout-tagout procedure; you leave machine guards in place; you tag and report a damaged tool or wire; you wear your safety glasses or bump cap.

Some of us have special responsibilities that have an effect on everyone’s safety. A maintenance
supervisor, for example, has to do his or her job correctly or mechanical failures could be followed by accidents. The safety committee chairperson must be sure to post any change in evacuation procedure.

And so on. But for the most part, your own safe behavior is your own greatest safeguard. Remember that when you’re tempted to take a shortcut or break the safety rule "just this once" or "just for a minute." That one minute could be exactly when the accident doesn’t "happen" but is caused.

Saturday, August 22, 2009


Well, tort reform has hit SpongeBob Squarepants. Saw this on TV the other day, yes, I watch cartoons. I have seen all the I Love Lucy reruns, so cartoons it is. Anyways, it appears as if the tort reformers are starting to poison the kindergarten class. Watch out for the next generation.

Actually, I have found in focus groups that the 25 and under group are not very plaintiff friendly. They tend to be the "stuff happens" juror, the one that finds any reason not to find for the plaintiff. I am not big on stereotypes when selecting jurors, but I am wary of that age group.
My daughter was on a jury when she was 19, PI case, car crash. She, as well as the others, found for the defendant. My daughter, her father a PI lawyer!

They are poisoning the next generation

Sunday, August 16, 2009


I love depositions. They can be so much fun. I just posted one of my favorite deposition clips. She was the Director of Nursing at a nursing home that I sued. I won't tell you the facts, I'm sure you will be able to figure it out when you watch the clip.

Lessons? First, stay on your path. You have a line of questioning you want to follow, don't let the witness knock you off your line.

Second, don't be afraid to ask about the standard of care. If you can establish the rule from the other side, it is very powerful. More powerful than if just your experts say what the rule is.

Third, video tape all depositions. Watch her body language, it is as valuable as the testimony she gives.

I hope you enjoy the clip and learn something from it!

One of my favorite deposition moments

Friday, August 14, 2009

Interesting revelation today

I was a panelist today at a conference of defense lawyers here in Wisconsin. The topics included pre-trial and trial issues that both sides of the Bar encounter. One panelist, a defense lawyer, started talking about a case where the plaintiffs' lawyer said, in voir dire, that he would be asking for $5,000,000 at the end of the case. His question, for us plaintiff guys, was why did he do that?
I, being the quiet one, blurted out "anchoring." He looked puzzled, but moved on. Later, the discussion turned to a situation he recently had where the plaintiff didn't put in the medical bills. I asked what they were, he told me, they were under $2,000. he asked us plaintiff guys why he would do that, as he found it odd. I again blurted out "anchoring." I then related a story of how a friend of mine recently tried a case and didn't put in the medical bills, which were significant, but not eye opening significant. The jury returned a verdict of $22,000,000. he told me that he didn't put in the bills because he didn't want to anchor the verdict too low. Good move, Jim.
Anyways, defense lawyer, who has been around close to 40 years, turns to me and says "where can I find out more about this anchoring stuff?"
What's the point? The point is, I think those of you who come to AAJ programs, learn about juror bias, learn about juror attitudes, learn about the psychology of jurors and do focus groups, are way ahead of our defense brothers and sisters.
Have a good weekend.

Thursday, August 13, 2009

Good book about persuasion

I recently read this book and found it to be a fascinating explanation on how we can influence others to act. It is called:

Influence: The Psychology of Persuasion
by Robert B. Cialdini

Below is a review, which I concur with. Pick it up, its easy to read and the author describes some interesting studies and tests which support his conclusions.

Another interesting read, this time about the psychology of persuasion. Here is one reader’s review, which I agree with.
Cialdini believes that influence is a science. This idea attracted me. As a rhetorician, I have always thought of persuasion as more of an art. Cialdini, however, makes a first-rate case for the science point of view. But maybe most importantly, he makes his case in a well-written, intelligent, and entertaining manner. Not only is this an important book to read, it is a fun book to read too.

He introduces you to six principles of ethical persuasion: reciprocity, scarcity, liking, authority, social proof, and commitment/consistency. A chapter is devoted to each and you quickly see why Cialdini looks at influence as a science. Each principle is backed by social scientific testing and restesting. Each chapter is also filled with interesting examples that help you see how each principle can be applied. By the end of the book, I had little doubt that these are six important dimensions of human interaction.

I highly recommend this book to all professionals. It does not matter if you are a manager, sales person, pastor, or non-profit volunteer. The ideas in this book, once applied, will make it easier for you to accomplish your goals. In a video featuring the author, Professor Cialdini even goes so far as to promise that these principles can help you influence the most resistant of all audiences–your children.

With a claim like that, who wouldn’t be intrigued?

Tuesday, August 11, 2009

September 2nd teleseminar

On Wednesday September 2nd, Phillip Miller and I will be doing a teleseminar for Trialsmith on using strategic case planning to maximize recovery in your cases. You can sign up at

Why does strategic case planning work?

When we work with a trial team to prepare a strategic case plan, one of the primary reasons for success is the amount of focus that is brought to bear on the case. Our uninterrupted work sessions can last 2 days without interruptions of any kind. They are done away from your office. There are no appointments, depositions, phone conferences, or other distractions during our work sessions. We spend every minute of each day focusing on the one case that you have selected. At the end of a work session, we guarantee it will be the most intensive case preparation you have ever experienced, short of final trial prep.

Strategic Case Planning allows you to shape a trial story and case presentation that incorporates what we know about juror learning, juror bias, memory, and decision-making. It identifies the case critical points for your case, and the opposition case, and it serves as a guide to development of relevant visuals that are tightly integrated with both your case, and the case you are rebutting.

Strategic case planning is valuable at any point in litigation, but the sooner the case planning is conducted, the greater its potential benefit. Strategic case planning is most powerful as a tool if it is used before discovery, or at least before case critical depositions are taken. When done before discovery begins gives, you will expose how every aspect of the opposition’s case, along with juror biases and other negative non-evidentiary inferences, will be perceived by the fact-finders and shape deliberations. More importantly you will begin discovery with a detailed plan that allows you to rebut all the landmines that favor the opposition, and a plan of what you need to elicit from opposition witnesses that will give you evidence that you need to prevail. From that earliest point, to preparation of your own client, preparations of your experts, depositions of defendants and their experts, jury selection and case presentation, strategic case planning helps to shape and guide trial strategy and presentation.

By focused discovery that rebuts the landmines in a case, you can change the nature of the case and the opposition’s perception of their risks. This can provide a tactical advantage that can be decisively exploited during settlement. Numerous clients who have completed early case planning report that they are able to use what they learned in case planning to better hit their opponent’s weak points during discovery and maximize their client’s recovery in mediation.

Here are some of the specific benefits that early strategic case planning can provide for you and your clients.

1. Identify problems in the case early, so you will have time to fix them
Looking at a case through the lens of a plaintiff gives a different view than what the jury will hear and see, and things get missed. There are “blind spots” in our ability to anticipate what the opposition is doing/will do, and what the jury will think is true. Inevitably when “Blind spots” are discovered they involve evidence that is serious enough to affect case value and outcome. Late discovery of these problems provides no time to develop effective rebuttal proof. Instead, the attorney is limited to what he/she can argue and hope that the jury puts more weight on the argument than they do the evidence. One of the main benefits of doing strategic case planning early is that, by finding such blind spots, you have time to rebut the landmine created by the blind spot, and potentially expose blind spots of the opposition as we. Every time we do strategic case planning we are able to expose landmines and blind spots that were completely unanticipated and would be outcome determinative if un-rebutted.

2. Anticipates the questions jurors will ask during deliberations.
Any statement by an attorney that is not clearly supported by facts has little chance of survival during deliberations. Questions like: How do you know that? Why is that true? Why is that important? What does that have to do with this case? are integrated into the process of strategic case planning so that your evidence answers the questions the jurors want to ask, which is much different than shaping evidence to prove a prima facie case. Successfully anticipating and answering juror questions is the path to victory.

3. Creates discovery that is focused, efficient, and effective.
If strategic case planning is begun before discovery, you will gain insights about areas of inquiry that you never would have anticipated. The strategic case plan will clearly point to which witnesses your will need to depose. Those witnesses are often different that what you might have thought of if you had “made a list” because they are necessary to respond to case landmines and rebuttals that would not have been otherwise obvious. The plan will also show what experts you will or will not need, and provide guidance on how to potentially eliminate 1 or more experts through your rebuttal.

4. Prepares you for efficient, reliable focus group research.
Strategic case planning produces a detailed presentation plan for anyone who will be representing the opposition in focus group testing and mock trials. Too often focus groups hear a weaker, less persuasive presentation than they will from the opposition lawyers at trial, lessening the reliability of the information you receive. Focus group research that does not present the opposition case gives you little of value. Just as importantly, strategic case planning provides specific rebuttals to the opposition case that are honed, refined and reduced to writing. When the focus group exercise is conducted, the strength of those specific rebuttals can be measured-not just generalities.

5. Provides guidance on the graphics to be used
Strategic case planning forces the early identification of key points that constitute the rebuttal to landmines, and the case-in-chief. These key points, and the facts that support them, form the plan for the visual strategy in the case. Early in the case is it possible to see what the visual strategy willl look like, incorporate elements into the discovery, andx test early drafts of the visuals with focus groups.

Please join us on this teleseminar, it will benefit both you and your clients.

Monday, August 10, 2009

Memory and Marathons

The Neurocritic has a fascinating summary of a recent paper investigating different types of memory in marathon runners. Why marathoners? Because completing a 26.2 mile race is an insanely arduous exercise, and leads to the massive release of stress hormones such as cortisol. Here are the scientists:

Indeed, cortisol levels recorded 30 min after completion of a marathon rival those reported in military training and interrogation (Taylor et al., 2007), rape victims being treated acutely (Resnick, Yehuda, Pitman, & Foy, 1995), severe burn injury patients (Norbury, Herndon, Branski, Chinkes, & Jeschke, 2008), and first-time parachute jumpers (Aloe et al., 1994).

But before we get back to the marathoners, a quick discussion of human memory. There are two distinct types of memory, which rely on different pathways in the brain. Explicit memory involves the recollection of discrete facts, events, names, faces, etc. It's a conscious process and is largely modulated by the hippocampus. (This was first discovered by studying patients with hippocampal lesions who turned into amnesiacs.) The second type of memory is implicit, largely unconscious and allows us to act based on previous experiences without taking the time to recall discrete memories. Think, for instance, of riding a bicycle. You have an implicit, procedural memory of the motor movements required to balance on two skinny wheels. As a result, you don't have to relearn the movements, or even consciously consider them, every time you go for a ride.

It has long been known that stress disrupts explicit memory, which is why it's not good to be too stressed when taking a test. The scientists hypothesized that finishing a marathon would wreak havoc on our explicit memory system, while leaving implicit memory largely intact. (There are probably good evolutionary reasons for this. It's not useful to forget how to throw a Pleistocene spear when being chased by a bear; if stress disrupted our procedural memory, we'd all be dead by now.)

The experiment itself was straightforward: 261 marathoners running in either the New York City Marathon or the Boston Marathon were given two different verbal memory tests, targeting the different memory pathways. 141 of the runners were tested within 30 min of finishing the race (when their cortex was still flush with cortisol) while the other 120 were tested 1-3 days before the race (this was the control group).

The end result? The group that had just finished the marathon showed a significant decline in explicit memory. They were less able to consciously recall a series of words that they had been shown only a few minutes earlier. However, after running 26.2 miles the marathoners actually showed a large improvement in implicit memory. In other words, the extreme stress and utter physical exhaustion sharpened their ability to act on information stored in their unconscious.

Sunday, August 9, 2009

Dead By Mistake

That was the "above the fold" headline on the front page of today's Albany Times-Union. It headlined a series of stories that detailed the 2,000,000 deaths that have occurred during the past 10 years as a result of preventable medical errors. Because this was a national investigative piece by Hearst newspapers, similar headlines appeared in all of its 14 daily papers, including the all-important San Francisco Chronicle (Speaker Pelosi's hometown paper). The articles are comprehensive, compelling and contain no anti-lawsuit, anti-lawyer or anti-consumer bias or inuendo. I believe that they are the most helpful national articles that ever been written about medical errors and their impact that have ever been written.

As part of the series, Hearst has even created a webpage

Check it out, very interesting.
Ok, been a while. Busy summer, son's wedding, married a fellow PI lawyers' daughter. Anyways, I am trying to catch up and post meaningful things here. Just got back from speaking to the Colorado Trial Lawyers Association, yes, they haven't changed their name! I became a member, since I have spoken there so often.
I spoke on damages and Using the Rules in Opening. You can download my powerpoint presentations at Free, to boot!

I have been doing quite a bit of consulting and focus groups lately, and one thing that seems a constant is that the youngest generation, the 25 and under group, are not very good for plaintiffs. I really don't generalize or stereotype as to jury selection, but I have consistently found that no matter the location, Idaho, Wisconsin, Colorado, this age group is not very plaintiff friendly as a whole.

I'm wondering what your experience is with this age juror?

For example, my 23 year old daughter, raised in a family of what I would consider to be more liberal than conservative, recently announced that she was leaning Republican. And she lives in Madison!

Anyways, when picking a jury, keep that in mind.