Glenn Fair and Emily Jamieson – How to Make the Defense Expert Look Foolish

Keith Fuicelli (: 00:00

Welcome to the Colorado Trial Lawyer Connection, where Colorado trial lawyers share insights from their latest cases. Join me, Keith Fuicelli. As we uncover the stories, strategies, and lessons from recent Colorado trials to help you and your clients achieve justice in the courtroom. The pursuit of justice starts now.

Keith Fuicelli (: 00:21

Welcome everyone back to an episode of the Colorado Trial Lawyer Connection, where we really try to interview Colorado trial lawyers once they've had a case, presumably had success on that case. We can all learn from that. And I know a little bit this case we're about to talk about, and I could not be happier to have the chance to talk to Glen Fair and Emily Jameson from the Oakmont Law Group about a truly amazing result on the type of case that I'm certain we all have many, many cases in our inventory that fit this story. So with that, welcome Glenn and Emily.

Glenn Fair (: 01:03

Thank you, Keith. Good to be here.

Emily Jamieson (: 01:04

Happy to be here as well.

Keith Fuicelli (: 01:05

Great. Well, before we kind of jump into this case, I always like to ask people a little bit about how they came to be trial lawyers and Emily, why don't we start with you. Have you always wanted to be a trial lawyer? Did you know that since you were a little kid or is that something you found out later?

Emily Jamieson (: 01:22

This is honestly one of the last jobs I expected myself to have growing up. I was a pretty shy kid, so yeah, I was originally interested in criminal justice type work, eventually wound up going to law school and then trial my first year of law school and really enjoyed it. So kind of started shifting in this direction, but I'm kind of a baby trial lawyer at this point. I was just admitted in October of 22, so this was my first civil jury trial.

Keith Fuicelli (: 01:46

Well, the good news is you're undefeated and that means when you win your first trial, it means you're bound to just win them all from here on out. So you get to be in that category of never having lost a civil jury trial. So bravo, what a way to start. That's awesome. Glenn, what about you? Tell us a little bit about Oakmont Law Group and how you came to become a trial lawyer.

Glenn Fair (: 02:09

I'm 57 now. I was in the military, did some administration work after that. And my dream when I was a little kid, I wanted to be a cop or I wanted to be a lawyer, and so I broke into law enforcement in my early twenties. I suffered a career ending injury back in 2013 before I had the surgery that we'd pretty sure was going to end my career. I took the LSAT because I'd finished undergrad. I'm like, well, I'm only 47. I can't just do nothing at 47. So my wife and I decided, you know what? We both have our bachelor's, let's go to law school. So took the lsat, did okay, it wasn't great, wasn't horrible. Applied to a bunch of law schools and decided to go to University of Wyoming because it was close to the Denver area where we knew we were going to end up.

Glenn Fair (: 02:54

So we did that law school was great, graduated at 50 and then I went and worked for a firm that, I'm trying to put it nicely, worked for a firm that just, I mean, it was a lot of get 'em in, get 'em settled, get 'em out, and cases did get filed. I was only there a year in the year I was there. They tried one case to verdict, but I wasn't really happy with the way things were going there. I didn't feel like that was the best way to serve people. That's been my life, is serving people, serving our country in the military, serving my community as a law enforcement officer. And so I knew I wanted to stay in personal injury. I considered criminal law, but after a career in criminal law, I've had enough. I figured the next best way to help people was do the personal injury work. And so I left that other firm and left there on a Friday was my last day. I cleaned my office out and left and on Monday morning I opened up Oakmont Law Group and I had a business partner with me. Great guy helped me get started. We're no longer working together, but we're still friends. And we started doing personal injury cases, found Nick Rowley at some point in the early 2019, really dug in 2020 and started running with the bull stuff. Come 2021 and here we are. Sorry you got lawyers. Long answer.

Keith Fuicelli (: 04:14

No, it was perfect and so inspirational. So my first question is what branch of the military were you in?

Glenn Fair (: 04:20

I was in the Army. I served in the 82nd Airborne Division and I'm going to date myself. Like I said, I went in in 1985 and I got out in 1988. I never saw combat. I was in that gap between Grenada and before Desert Storm. And so I did my three years and got out and got on with my life.

Keith Fuicelli (: 04:36

Well, thank you for your service. I'm the son of a Navy brat, so traveled all over the country and just have a real appreciation for anyone that puts themselves out there. And a huge kudos to you for graduating law school at age 50 and pursuing your passion. That is awesome. My real question for you is I'm hearing that you worked at a firm that maybe didn't have the same values that you had as far as how cases should be handled and how they should be worked up and resolute how they ultimately resolve. So what are the values that you try to instill at Oak Mount that you learned you wanted to be different than the firm you started out at? If that question makes sense,

Glenn Fair (: 05:21

That makes perfect sense. So Oakmont, we're really people focused. The ethos of our company is that we take care of people first, and if you take care of the people well and you do your job right, the money will take care of itself. And we have really found that it's one of our core values is people first. And then one of our other values for our employees is to make sure that our team members get a great work-life balance. Emily's the first, actually, she's the second associate we've hired, but the first one we've hired on salary. And while admittedly we don't pay what some of the big firms pay, I don't think Emily's had to work more than 40 hours a week other than the week of trial since she started here. And so that's one of the big selling points for our firm is you're almost never going to work more than 40 hours a week.

Glenn Fair (: 06:08

We take care of our clients. That's what we're here to do. And I think applying a lot of the running with the Bulls and trial by human principles and the stuff from Keith Mitnick and whatnot, which we can get into later, I think that really lends itself to getting maximum justice. I mean, at the other firm I was at, it was a lot of haggling with insurance adjusters. In the last three years, I have had a grand total of five phone calls with insurance adjusters. I just don't talk to them anymore. And for two reasons, number one, we get more policy limit tenders than we get offers for less. And granted, our caseload's only about 125, so that's still pretty decent. We find ourselves in lawsuit about 35% of the time and we're trying about 10% of those.

Keith Fuicelli (: 06:54

Great. That's a lot. So I mean, it sounds like you're going to trial with some regularity.

Glenn Fair (: 07:00

We're really working on that. We also have a criminal practice here, so my wife leads up the criminal defense division. She was also in law enforcement for a little while, so she does that. So I've had a handful of criminal jury trials, which is super helpful. Most of them are a day or two and you get it done. And then the civil jury trials to coin a Nick Rowley phrase, the being brutally honest, this trial we got this verdict on was only my fourth civil jury trial. It was my fifth civil trial total, but only my fourth jury trial. It was really scary because we lost the last two. So we won the first one, we lost number two, we lost number three, and then we hit a home run on number four. Yeah.

Keith Fuicelli (: 07:37

Do you find, I have been in similar shoes where I've, and I don't know if this is true for you, but you find yourself sort of questioning, what am I doing wrong? Is it me? Is it the case? Did those types of thoughts enter into your mind after having that string of losses?

Glenn Fair (: 07:55

Absolutely. It was after the first loss. I mean, we literally, we had no idea what had we done wrong, what happened, and I relied on some of my mentors and whatnot and talked to them about it. Sometimes that just doesn't go your way. We weren't able to pin anything down really specific about that case. What the consensus seems to be on that case was they just didn't believe our client, which was very surprising to me. I thought she was wonderful. I started to question whether it's like, gosh, am I really cut out for doing this? Have I done something wrong? The first case where we won, we again followed the stuff I've learned from trial lawyers way better than me. We waived our 26 grand than meds. We asked the jury for several million dollars and they gave us about 400 grand, but the 400 grand they gave us was all uncapped.

Glenn Fair (: 08:47

And so we were like, Hey, this stuff works. And then the second one, we get a defense verdict. I know why we lost the third one. It was one of those things you tell your client and tell your client and tell your client, don't post stuff on social media during the pendency of your case because the defense is going to find it. I mean, we looked, we didn't find it. Somehow the defense found a video that was really damaging to our client, and my mentors all said the second that video played, the case was over, there was no way you could save it. So we had a year gap in trying cases because just how the way it goes. We were really wanting to get back in the courtroom. We don't find reasons to settle. We find reasons to try cases, but we started getting the, Jason Jordan says they started putting the fruit hanging low enough. Our clients were like, I'll take 500 grand so I don't have to go to trial. And so that's been happening. So this February, 2024, this was our first trial this year. We've got two more coming up, one in June, one in July. Both of those are likely going to go. We're doing our best to get cases in front of juries unless carriers are kicking down the full policy limits.

Keith Fuicelli (: 09:53

Yeah. Well, kudos to you. You're obviously doing a lot right to get to trial. And one of the questions I have about doing a lot right is I think I heard you say that the first case you tried where you had an amazing result, you waived economics. And then correct me if I'm wrong, but the case we're going to talk about here in just a few minutes also waived economics. Is that right?

Glenn Fair (: 10:13

That's true. I've actually waived economic damages in every single one of my civil trials. Wow. Yeah. And so for the one case, it was a construction case, it was a negligence case based on premises liability against a construction company. Okay. Meds in that were only 26,000. Our client had a very compelling story. He was a great guy and he still is a great guy. And we focused on his non-economic losses with his family and his kids and how it's impacted him. And we got a mid six figure verdict in the second case. The one, the first one we lost meds on that were 74, 75. We waived those because we thought her story was more compelling. And the same thing in number four or number three and number four, one of the big foundations of the running with the bulls and how it's works at trial by Human, if the listeners don't know, and Nick Rowley has a company called Trial Lawyers for Justice, got lawyers all over the country who help and they teach and they basically use his stuff. And I talk about Nick a lot because number one, he is a good dude. Number two, he's probably one of the best trial lawyers I've ever met. And what he's doing works. And while I don't want to be Nick Rowley, I'd like to be the Glen Fair version of Nick Row with that type of success.

Keith Fuicelli (: 11:27

Yeah, I was going to ask you about that because I too, of course, am a huge Nick Row fan and did attend the first trial by Human Seminar in Boulder. And I know from reading your summary of this, that you attended a recent trial by Human Seminar in Montana. So for the listeners, do you recommend attending an in-person trial by Human Seminar? And what have you learned from Nick Raleigh and Trial by Human that you implement in your actual day-to-Day practice?

Glenn Fair (: 11:54

That's a huge question. So let's see if I could break it down into pieces. So at July, 2021, trial by Woman is the company that puts it on, that's run by Courtney Rowley, Nick's wife. So trial by woman and trial by human put on, I think it was an eight or nine day trial seminar at the Big Sky Ranch up in Montana, big Sky, Montana. And so we went up there and you're expected to bring a case or two. And I had one that was getting ready to go to trial. And basically we worked on case pieces. We'd sit down and work on voir dire, and then you'd literally, you'd stand up and practice VO dire for your case. You'd practice opening, you'd practice directs. I tell everybody, if you can get to a trial by human event, you got to go. You got to go. You just don't get this stuff elsewhere. And like I said, trial Lawyers for Justice and Trial by Woman, trial by Human, they have the rallies and their crew have got it nailed down and insurance companies just don't know what to do with themselves. They think they do, but they don't. Well,

Keith Fuicelli (: 12:53

What I love about your case, what we'll do is we'll jump into your case is you look at people like Nick and Courtney Raleigh, and they're hitting 5,000 million verdicts on these catastrophic cases, and you think, well, maybe those lessons don't apply to my cases. But I think what we're about to hear from this case is they absolutely apply to all level of cases and you end up with amazing results. And so Emily, maybe we could toss it on over to you. Tell us a little bit about the case that you and Glenn tried. What are the facts?

Emily Jamieson (: 13:26

Case is a little bit of an old case. It started March of 2020, right around the beginning of the pandemic. Our client, Corey was just, I think he was driving back from taking his daughter to work and a driver came out of an alley going in a van going way faster than you should be driving out of an alley where you can't see oncoming traffic. And just kind of crashed right into him, sort of head on, hit the front driver's side of his car, and then the driver said like, oh, I don't have a license, and took off. So pretty traumatizing event for our client

Keith Fuicelli (: 14:00

At all. Driver fled the scene of the crash

Emily Jamieson (: 14:02

He did. The police had to call his boss to make him come back to the scene after they arrived

Keith Fuicelli (: 14:08

And sort of jumping way far ahead. But did that fact come into trial as evidence?

Emily Jamieson (: 14:15

It did, yeah. The opposing counsel for the case did file motion in limine to exclude the suspended license part of things, but we really were focused on the non-economic damages, mental pain and suffering. And part of that was Corey's trauma from being the victim of a hit and run crash. And he gave some really powerful testimony when he was on the stand. I think a line that really stood out was like as the guy was driving away, he just thought there would be no justice in this case. So we were able to bring all of that in to kind of support the mental distress component.

Keith Fuicelli (: 14:47

Let me ask a follow up on that specific piece because I was lucky to work under Rich Cotti for a while, and he sort of taught me that when you have a case like that, you plead the emotional distress that comes from that event, be it a drunk driver, be it someone that flees the scene. So you can have an admitted negligence case, but the bad facts for the defense come in as it relates to the noneconomic damages. So my question is, did you plead that in the complaint and did you list it as a specific element of noneconomic damages in your A1 disclosures?

Emily Jamieson (: 15:24

Well, I'll toss that to Glenn because I was not working here at the time the complaint was filed.

Glenn Fair (: 15:29

So yeah, to answer your question, Keith, yes, we pled that he fled the scene. We specifically plead chapter six of the Colorado pattern jury instructions. We list out all those items past and future, physical and mental pain and suffering, passion, future economics. And I won't go over the whole thing, but we specifically plead the emotional distress element and the others just because, I mean that's really the focus of our cases is that in physical impairment,

Keith Fuicelli (: 15:57

Did you please specifically the emotional distress as a result of the defendant fleeing the scene of the crash? Do you remember if that was in your A ones?

Glenn Fair (: 16:06

It was not in the A ones, but it was discussed in Corey's deposition. And just so you know, we have talked to Corey and he said, please spread the word far and wide. You could use my name and tell people about it because I want justice for others. It's notable that Corey is a black man and he was really skeptical about getting justice in a system that's run mostly by non-blacks. And he was very pleased with his result. And he wants other people to know, Hey, there is justice out there. You just have to get the right lawyers.

Keith Fuicelli (: 16:42

Glenn, what was your venue for this venue and judge?

Glenn Fair (: 16:45

So we were in Adams County and so up in Brighton and our judge was the honorable Arturo Hernandez. It was actually his first civil jury trial, and one of our motions hearings was literally five minutes after he got sworn onto the bench. Wow. His history was as a district attorney, he litigated a lot of cases. I think he did a good job. Obviously I don't agree with everything he did, but I believe he followed the rules and followed the law, and I believe he got it right.

Keith Fuicelli (: 17:15

So quick question, because you mentioned that your client was an African-American male. Did you raise that in voir dire or not raise that in voir dire? I dunno which way I would go on that. It seems like we

Glenn Fair (: 17:26

Really didn't, I mean, that can really backfire on you. If it looks like I'm the old white guy, if it looks like the old white guy trying to play the race card that's going to turn some people off, that's not going to fly. And I talked to Corey about it and I told him, I'm not going to bring it up in voir dire. I said, but if it needs to come in at some point in trial, are you okay with that? And he's like, absolutely. And Emily, during the cross of the redirect, we called the defendant, our case in chief, Emily crafted a set of redirect questions very quickly that basically exposed the at-fault driver. We believe it's our opinion that the at-fault driver was a bit of a racist. That's our opinion. Emily can tell you about that when we get to the talking about the Atfa drive.

Keith Fuicelli (: 18:08

Yeah, Emily, I mean, well now you've piqued my interest. I guess, how did you plant, I'm assuming you kind of plant a seed with the jury that maybe this guy's a racist. Tell us more about that. Fascinated.

Emily Jamieson (: 18:19

Yeah. Well, like Glenn said, he came up on a redirect. So when we brought him up in our case in chief, I kind of just kept it to getting him to admit that he had fled the scene that he didn't have a valid license at the time. But when opposing counsel came up for his questioning, he kind of got the defendant to say a lot of things about how, oh, he just fled the scene because he was so scared of the driver. He was like, oh, worried he was going to be violent. And to me it gave off strong vibes of, oh, the big scary black man's going to come get me, sort of thing. Okay, well I have to address that and redirect. And then Corey gave me the okay to go ahead with my questions there. So I didn't feel like I could go up and just directly ask him like, okay, are you just saying that because he's black?

Emily Jamieson (: 19:02

So I had to go about it carefully asking, okay, tell me why you were scared of my client. And I had a feeling that he would not be able to give me a good non-racist answer. And I turned out to be correct about that. He went off a lot about it was a bad neighborhood, that sort of thing. And then I was like, okay, so you would've run from anyone. He was like, no, no, no, not just anyone. It's like, okay, just my client. So it didn't come out right saying anything racist, but I felt like the implication came across to the jurors.

Keith Fuicelli (: 19:35

For sure, for sure. So Glen, what were your, let's kind of cut to the chase, go to the end. What were your client's damages and then how did the verdict break down? And then we can go into some of the specifics of that.

Glenn Fair (: 19:47

So again, like I've been saying, we really focus on non economics and physical impairment, but our client's injuries in the crash, he suffered some disc bulging in his neck. He suffered some tears in his shoulders, right and left. He suffered bruising to his knees. He's a taller gentleman. I think I'm six two and I think Corey's about six two as well. And also had a disc herniation at L five S one with an annular tear that was pressing on the S one nerve root. So basically he was getting radiating pain just into his glutes and into his hips. The pain didn't radiate to his legs until they did, I forget the name of the test that the doctors do to discover that nerve impingement. When they did that test, the pain shot all the way down to his heel. Those were his injuries. Corey was terrified of having needles anywhere near his spine, despite the doctors telling him, Hey, it is safe.

Glenn Fair (: 20:38

Yes, there are risks, some of those risks of paralysis and death. It could happen. It's rare, but it could. And he elected not to do those things. So Corey, he's been an athlete his entire life. He ran high school track, he played all kinds of sports, started a family young, but stayed in the gym all of his life activities with his family and his friends were all surrounding fitness and doing things like that. And I asked for Corey, I'd asked him for a picture for our opening PowerPoint of just to have a picture of you before the crash, and he happened to have a picture of him working out that was taken almost a month before the crash to the day. And you see that picture, and I described it to the jury during closing, he's a paragon of fitness. This is who he was.

Glenn Fair (: 21:23

He was a paragon of fitness, 45 years of medical history of nothing. We looked, that's something we do for our trials for every client. We go back five years and for cases that are going to get tried, we frequently go back 10 years and we looked and the only doctors he'd been to are like Kaiser, and there was nothing in those records for years past except I got a cold, I got a cold, I need to get my immunizations and whatnot. And so we use that as part of a timeline to show this is all crash costs despite what their expert says. So damage dollar wise, his medical bills, because he declined to do any injections and didn't want to talk about a microdiscectomy, he just said, look, I'm going to do my home exercise programs that I were given. I'm going to do some massage work that he knows how to do and I'm just going to do the best I can because sure I'm in pain every day.

Glenn Fair (: 22:19

Or actually, that's not what he said. He said he's in pain most days and nights are the worst. He says, but it's not debilitating. He's like, it's like level two, level three pain. And this is what we told the jury. We didn't tell him he's laying on the floor agonizing. It bothers him. If you read Keith Mitnicks, don't eat the bruises, it's the pilot light pain analogy, crick in the neck analogy. I used that in closing. So Corey figures, he's going to manage and he knows at some point the degeneration's going to get him and he's going to have some type of an invasive procedure, but he's going to put that off as long as possible. So his medical bills were only $37,000 and we waived those. The only time we're not going to waive medical bills is if we've got probably three or 400,000 in bills, but then that, I mean, we're waving 'em up to a hundred grand almost as a matter of practice.

Glenn Fair (: 23:05

And so Corey also lost one of his businesses. So he runs a vape shop and he had a, basically it was massage and then he stopped doing massage and started doing Reiki energy work and stretching and he starts. So he was doing that. And then when the crash occurred and the disc herniation, the other injuries occurred. He couldn't do it. It's not that he couldn't do it. I want to caution the listeners. That's a trick question from the defense. When they ask your client in deposition, what can you not do anymore? And it wasn't that he couldn't do it, and in his deposition he testified, look, I can still do these things, but I pay for it and it hurts a lot for days after. He can only stand to do massage work for 20 to 30 minutes. Well, that's not going to work when all your massages are an hour. And then because of the issues with his shoulders, he couldn't do some of the stretching work, so he lost his massage business. We hired Jeff Op as our forensic economist, and Corey went in and explained, he is like, look, I only, my plan is I was only going to work till 60. And so Jeff opted an economic loss report for his business up to the age of 60. That number was about $460,000. Let

Keith Fuicelli (: 24:11

Me jump in on that. Did the defense hire anyone to rebut that? So we're talking 400 plus in economic losses, economic future wage loss. Did the defense hire anyone to contest that

Glenn Fair (: 24:23

They did not. Early on in the case after we sent our first settlement opportunity letter, the adjuster said, we're not buying the wage loss claim. We want his tax returns. And so we thought about it and because he doesn't have W twos, we thought about it and we decided to give them pre-litigation, his last five year tax returns, we ordered 'em straight for the IRS and turned them over and their response to that was they offered like an extra $2,000. They had that information for about two years before the trial and they never did anything with it. Their excuse was, well, he was going to lose that business because of covid. Anyways, that's what the adjuster told us. And so we made sure to address that with Jeff Op and they dug into it and he testified about that in trial, how he is like, I already deducted off for covid, I deducted all that off. So we're not even asking for replacement of that money. And so that seemed to go over well with it. Let

Keith Fuicelli (: 25:16

Me see if I can summarize. So you've got 30 something in economics that you waive in medical bills. You've got 400 in wage loss economics that you keep. And what was the result? What was the verdict and how was it broken down?

Glenn Fair (: 25:29

The verdict was just a few thousand dollars short of $2.2 million. The jury gave us every penny that Jeff Ops said that he lost past and future. So they literally just took his number and put it on the verdict form for non-economic damages, the pain and suffering, emotional distress, the damages they gave us 572,220 the way I argued in was designed to make sure we don't have a million dollars in a capped category.

Keith Fuicelli (: 26:00

So tell us about that because I know that is the sweet spot we're all looking for. Tell us the arguments you used to get him to put it in impairment and not non economics.

Glenn Fair (: 26:09

So what I did was towards the end of my closing, I pulled up a verdict form and it was two pages. It wasn't the verdict form where we have a form A form B. We used the unified form. So it was the questions about the causation and level of damages. And so I had that screen up and of course I didn't rehash everything. I just hit the high points. Yes, the causations there, yes, the damages are there. Then I got to the other screen, which is the important one, or the other card, which is the amount non-economic was first, and I explained to them, I think it should be $730,000. Understanding that was a little above the cap. But I wanted to be true to my numbers because the way I came up with the number was I looked at how much did Corey make in the five years before the crash in his businesses?

Glenn Fair (: 26:52

And I took the lowest year, his lowest year of income out of those, added up the total of his profit and divided that by 2080, which is the number of hours you work in a year. And I came up with a number of $33 and 13 cents an hour and I explained to the jury, I said, he should get $33 and 13 cents an hour. And I had this up on the screen for the jurors to see. I said, and the reason he should get that is not because some attorney just came up with that number. The reason he should get that is because the citizens of his community patronized his business and gave them money that equaled that much. So the citizens of his community says he's worth 33 13 an hour, and so he should get that amount from the date of the crash until the day of trial started for 16 hours a day.

Glenn Fair (: 27:39

And I use 16 hours a day because jurors in my other trials have told me basically if they're not missing an arm or a leg, they're not buying the 24 hours a day. It was just harder for them to believe. And so I wanted to make sure to keep that credibility with the jury. And so we went 16 hours a day, 1400 to 45 days, 730 grand economics. We just wrote Jeff Ops number down there and physical impairment. What I did for that is I did that for the 1,445 days plus the 11,899 days left in his life according to the census tables. And that I asked for 11, I think it was $11 and 10 cents an hour. And I explained to the jury, the reason I'm asking for a third is because you heard Corey testify, it doesn't bother him all the time, but it bothers him a lot at night when he sleeps, and that's a third of his life.

Glenn Fair (: 28:34

And so I wanted to use a number that was fair and realistically represented what his suffering was worth. And I said, the reason this belongs in physical impairment is because the disc in his back that was fine before this crash with no symptoms and no indication of pain for 45 years was not that way. After the crash, that disc was physically changed. And talking to the jury, I said, and you could see that physical change, you saw it with your own eyes. MRIs don't lie. You saw where the disc was sticking out. You saw where the disc was laying on the nerve root. He wasn't born that way. And since he wasn't born that way, his physique, his physical condition has now been impaired. Colorado doesn't have a definition for that, and I believe that that injury that described and the testimony they heard and the images they saw supports this a physical impairment and that's where the damages need to go at $11 and 10 cents an hour for 13,000 days, which was a couple million dollars. Yeah, I was going to

Keith Fuicelli (: 29:41

Ask what did that end number look like?

Glenn Fair (: 29:44

The final total I had on the board for the jurors was 3.55 million.

Keith Fuicelli (: 29:48

Okay. And they gave you, remind me again,

Glenn Fair (: 29:50

2000002.2.

Keith Fuicelli (: 29:52

Did they tell you to talk to the jurors afterwards?

Glenn Fair (: 29:54

We didn't. When we were in the parking lot, it snowed the day before and later in the day, you know how that goes. And the jurors, if they wanted to talk to us, could meet us downstairs and we didn't hang around because it's Adams County, there's not much room to stand. And we had all our gear, so we were walking out to the parking lot. We did see the jurors walking out and Corey just waved and said, thank you. And the jury foreman said, we are so sorry you were hurt. We hope you get better. Wow. That's all that was said. So it's obvious that the jury clearly believed what we were saying, which was, I mean it was really just the truth and we were able to show it with interest. It's going to be right at $3 million.

Keith Fuicelli (: 30:35

Wow, 3 million. It was a million dollar policy. Right?

Glenn Fair (: 30:38

Million dollar policy, which we believe was open. And we told them that they had three chances to settle that claim within the policy limits, having all the information that we had. And I even told them, I told them, I'm going to go in and I'm going to ask the jury for a minimum of two and a half million, mostly non economics and physical impairment. They ignored me

Keith Fuicelli (: 31:00

And it was Matthew Buckle was counsel. So in-house at Farmers?

Glenn Fair (: 31:04

Yeah, Matthew's at Farmers and I mean we all deal with a lot of lawyers on the other side. We talked about core values earlier. One of our principles in this office is you be kind, be kind, you be polite, you be professional. We do not yell and scream at people. We don't make threats. We just tell 'em what we're going to do and then we go do it. And we found that Matt, he was very receptive to that. And obviously we didn't agree on a whole lot of stuff, but we got the job done, we were polite, professional, I'd be okay trying another case against Matt. He was not difficult to deal with.

Keith Fuicelli (: 31:37

Yeah, agree. Emily, let me ask you a question because I know there was from reading your review of this case, a fair amount of pretrial motions work. So could you talk to us a little bit about either motions in limine that you filed proactively or responded to, and how motions practice in this case ended up affecting the outcome?

Emily Jamieson (: 32:00

Yeah, so there was a fair amount of motions practice in this case. We filed 11 motions proactively that said the ones that weren't agreed to by opposing counsel, the judge kind of deferred on. Judge Manez, like we've said is pretty new. So he was kind of wanting to save all of his rulings until trial when he knew what was going on there. Our defensive motions practice kind of mentioned earlier, opposing counsel filed a motion to exclude any testimony about the defendant's suspended license. He filed that less than two weeks before trial, I think it was. So I had to kind of scramble to respond to before the deadline and we were able to get the judge to rule in our favorite affairs based on the argument that, like I mentioned earlier, the hit and run is part of the damages and discussing the suspended license is really closely intertwined with the hit and run since the guy shot it. Sorry, I don't have a license as he was bleeding. So we were able to get that in.

Keith Fuicelli (: 33:00

Let me interrupt you because I'm fascinated by this because I can see a judge trying to split the baby thinking, okay, well I'm going to let in that he fled, but the fact that he didn't have the reason he fled was because he had a suspended license. Do you believe that it is only because the defendant told your client at the scene? I don't have a license and bailed that it came in?

Emily Jamieson (: 33:23

I think it's largely what he said to my client is he was leaving just because that makes it, it's hard to get the story out of the client effectively if we're trying to step around certain details and it makes it difficult for us to put on our case, and I think the judge understood that.

Keith Fuicelli (: 33:38

Fascinating. So judge allowed that. And were there any other motions part of this that jump out as being sort of critically important?

Emily Jamieson (: 33:46

Yeah, on the discovery end of things, I did have to file a motion to compel. We haven't talked much about the defense expert yet, but Dr. Sto did not want to comply with our subpoena duces tecum. So we had quite the argument over that and we were mostly successful.

Keith Fuicelli (: 34:02

Great. I definitely want to talk about that. So we won't talk specific numbers, but am I correct that you served Dr. Sto with the subpoena uc tecum to produce evidence of his income and the court granted that and you had that information at trial? Is that accurate?

Emily Jamieson (: 34:20

Yeah, so our motion to compel our three kind of big things, we wanted the evidence of his income specifically related to medical-legal work. We wanted some of his past IME reports so we could kind of see what sort of patterns showed up and how we assessed cases. And then so related to the subpoena, but he wanted to charge us over $2,000 an hour for the deposition. So we had quite the fight over costs there as well.

Keith Fuicelli (: 34:47

So you raised this proactively and I believe that Glenn offered before to share your subpoena and I'm not sure about the motions associated therewith, but hopefully I know you guys are more than happy to help everyone out. So that issue all gets raised before Judge Hernandez on motions in motion to compel. What was the ruling on each of those three issues from the court?

Emily Jamieson (: 35:12

So the judge did regarding the financial weed initially asked for tax returns. So upon kind of conferring with Dr. Still's counsel, we kind of walked that back a bit. So agreed to affidavit from Dr. St about his income and the percentage of that that came from defense versus plaintiff's work. So the judge did grant our motion to get the affidavit, our loss was having it under a protective order. So we can't discuss the specifics here, but we did get that financial information that was super helpful to us. We got a portion of the medical reports that we had asked for as well, but we're illuminating and seeing what sort of arguments Dr still likes to make when he's neutrally assessing patients. And we also got his fees cut down by more than half for the deposition. So that was pretty nice.

Keith Fuicelli (: 36:03

And did you take the deposition or did Glen take the deposition?

Emily Jamieson (: 36:07

Glen did. I was present, but I haven't done an expert deposition yet, so.

Keith Fuicelli (: 36:12

Okay. Well, they're all as easy and work out as well as they did in this case, so no worries going forward. Glenn, could you talk to us a little bit about your thoughts on deposing Dr. Stoll and sort of what your goals were? Because I know some people they think, I don't want to deal with the hassle, I don't want to pay the money. Other people say always depose every expert, every case. So curious your thoughts on that.

Glenn Fair (: 36:32

I don't even call 'em IMEs because they're not independent. We all know that anybody who's done this work knows they're not truly independent and there are times I'll actually file motions and eliminates about that. So for the rule 35 examiners, what I want to do is I want to lock in their story, want to find out what are you an expert in, what are you not an expert in so that when he gets up on the stand, he's not going to suddenly try to sandbag. Guess what though? I'm also familiar and an expert in billing because I owned a medical practice and he testified that he's not a billing expert, so I wanted to lock in his area of expertise to start with. After that, what I wanted to do was see if I could understand where he's coming from on his report and grab what Keith Mitnick calls sound bites for a cross exam.

Glenn Fair (: 37:17

And so what I'm thinking of when I'm doing this is why does he believe what he believes? I'm not going to argue the medicine with him. That's pointless. He's a surgeon, he's going to kick our butts. And so I'm not going to argue with him, but I want to find out why he's saying it. And basically he said because of Corey's age, he was 44, 45 at the time of the crash, despite the fact that he had no history, the disc bulges and herniations are all related to preexisting degeneration that his shoulder injuries were most likely related to lifting weights and being physically active, not the car crash. And that the most that Corey needed was four to six weeks of treatment. What I did in going through the deposition, which is basically locking him into the reasons he was saying that what I was working on this whole time was what something I learned from Keith Mitnick about locking 'em into their story and then showing that that's not part of the sensible sequence of events. That doesn't even make any sense. The way I do it is again, I lock down the facts. I get him committed to the four to six weeks, I get him committed to his financial information, which we had at that point, which of course we can't discuss. I got him committed to how much of this work he does practice versus

Keith Fuicelli (: 38:29

Forensic type work.

Glenn Fair (: 38:31

Thank you. Medical-legal work is the term I'm looking for. We nail him down on that, make sure there's nothing else he has to add and then get out of there. And then I use that information in his cross-examination to basically show the jury how unreasonable he's being. In fact, I was able to use it in opening.

Keith Fuicelli (: 38:48

Yeah, I was going to ask you going with the Keith Mitnick, the best time to cross an expert is in opening. And I know from reading your summary that you were saying that the jurors were already ready for Dr. Stoll when he came in. How did you address him in opening?

Glenn Fair (: 39:02

One of the concessions that I got from Dr. Sto during his depositions is that he's a professional witness. I called him Dr. Sto when I put his name on the board and I called him doctor when he was on the stand out of respect. But other than that, I referred to him in opening and closing the professional witness who the defense paid a lot of money to. That's how I referred to him. The primer on crossing him goes all the way back to voir dire. And in voir dire, you basically, obviously you can't get into the facts. I got into are you comfortable looking at somebody who might have way more education than you like a doctor? Are you comfortable calling their credibility into question? Are you comfortable doing something like that? Wow. If you don't get any answers, I use the police talk to me from Nick Row or I'll just say, how do you feel about that? And we got some good answers. And basically the jury was like, a couple of people were like, as long as they're on the stand, I'm comfortable with figuring out whether they're basically full of it or not. And so that's where it starts. And then the second part is you hit him in opening and you talk about all the stuff that he testified to in his deposition, four to six weeks,

Keith Fuicelli (: 40:07

You were saying four to six weeks get typical report we've all seen a thousand times. Right?

Glenn Fair (: 40:12

Exactly. And so in opening, I hit him with you're going to learn this professional witness is paid to testify for the defense all the time. 80% of his professional witness work is for defense attorneys. He gets paid a lot of money from defense attorneys. I said, you're going to find out how much he gets paid later in trial, but what I can tell you is already in this case, he's been paid $14,000 to read some records to do a report and to come here to court today. Now mind you, he's never even met Corey. And so then I had to slide up with his picture audit and all that. I said, so just so you guys know, this is how you're going to know when Dr. Stoll gets here, the defense is going to get up. That attorney, Mr. Bale's going to get up and he's going to say, the defense calls Dr. Phillips Stoll, and you're going to see this man walk through the back door and he's really well groomed.

Glenn Fair (: 40:57

He's going to be wearing a nice suit and he has got huge credentials. He went to Yale Medical School, he's a licensed orthopedic surgeon, huge credentials. And so that's how you're going to know he's here now. They already know all the stuff that he's going to say that's unreasonable. And the way that played out was exactly like Keith Mitnick said. I mean I almost started laughing or clapping when it happened. I had done this before and it didn't work out quite as well. They walk in and they're smug, and Dr. Sto is quite arrogant by accounts of other people than myself, but he walks in and he is got backpack and his nice suit and he walks in, he gets to the jury and smile and nods, and two jurors just scowled at him. I mean, they just scowled at him and the other ones looked at him. He didn't have any pants on. He was a clown. It was wild. I was like, holy smokes. That whole setup worked.

Keith Fuicelli (: 41:51

Let me ask you this on that whole setup, because I'm curious, did you do the MIT nick? Okay, so four to six weeks, so the very same pain on six weeks and then the next day you did all that during cross of him live and not during his depo?

Glenn Fair (: 42:02

Correct. You don't do that during the depo? I'll give it to you real quick. How we did it. When I did it, we were required to stand at the podium for witness exam. Judge Hernandez was actually nice and let us use the wealth if as long as we weren't examining witnesses. But any rate, I got him locked that with the point of the depositions, get him locked into this four to six weeks. And after that it's preexisting degeneration. And I leave it at that. I leave it at that in depo because you don't want to tip your hand and you don't want to let him know that you're going to make him look like a fool. And so I told him, I said, okay, Dr. Stoll, you've been very thorough with your answers. Of course it's leading questions with yes answers, but he's smarter than me, so he's got to re-explain it to the jury.

Glenn Fair (: 42:42

I just let him go. I said, okay, Dr. Sto, I understand what you're saying here, but let me get this right. So for Corey, for 45 years of his life, he had never gone to the doctor. There's no medical records or anything about any injuries with his neck back. I had a list on an easel so I could easily remember them in front of the jury. We actually admitted that as an exhibit and I went down the list. I said, so he had none of that. And then this crash happens. And you say, doctor, that at most he had some mild sprain strains of his cervical spine, his lumbar spine, and his right shoulder. And then you're saying like six to eight weeks later, he went to bed with neck pain, shoulder pain, low back pain and sore knees. And when he got up the next day, it was that very moment that this degeneration and aging process you've been telling about decided to rear his ugly head.

Glenn Fair (: 43:44

And now none of these pains that he had the night before related to the crash, now they're all preexisting degeneration. Is that what you're telling this jury? And I looked at the jury and they were looking at me like this. They were like, what is going on? And he did exactly what Keith Mitnick said he was going to do. He him, he hawed. He's like, what do you want me to say? You've heard my testimony? I said, doctor, I just want you to answer the question. Are you saying this is all a big coincidence? Yes.

Keith Fuicelli (: 44:15

Wow. You got to do the coincidence thing too. I love

Glenn Fair (: 44:19

It. I said, you're telling us this is all just a big coincidence. And he was frustrated and angry and we stayed polite, professional, and he said yes. And so my next question was, doctor, you made X amount of money working for the defense in 2021. Correct. And he didn't want to talk about it. I said, well, doctor, you filled out an affidavit and we got the affidavit and took it up to him. Does this refresh your memory? You made X number of dollars in 2021 doing this work, didn't you? Well, you, the paper says, and I said, doctor, I'm asking you, what do you want me to say? I said, doctor, I just want you to answer my question. Please. Did you make X number of dollars on this year doing this work? You see Emily's starting to smile because it was bad for him. And he says yes. And then in 2022 you made X number of dollars, which was a little bit less than 2021. Yes. And in 2023, you made the same amount of money. Yes. Thank you, doctor, I appreciate your time. That was it.

Keith Fuicelli (: 45:18

Wow. Fascinating. Yeah. One other area before we wrap up that I was hoping you could touch on is how did you all deal with either one of you deal with the fact that your client didn't get the injections? We've had these same cases, they come in and clients are, I don't want to do injections. Your client is not getting injections. How did that play out with respect to the failure to mitigate instruction and how did you all deal with that at trial?

Glenn Fair (: 45:43

The defense had a non pattern failure to mitigate instruction that left out the portion about basically if the surgery is dangerous, you can't hold that against him. We put forth a modified failure to mitigate that included the word injection and knowing this was going to be an issue, we made sure that Dr. Gabriel testified that is a risk to injection, including paralysis and death. And he's like, it's a very slim risk, but it's a risk. So we basically argued to the judge, well, he didn't do it because it's dangerous. He's afraid of needles and it's dangerous. And that was all testified to. So the jury should know that this rule exists. And after some extensive back and forth, the judge ruled that our instruction was to be the one given. And our instruction was very close to the pattern instruction. And I don't know if the jury did a deduction. I don't think they did based on the number we got. That's how it panned out. And Emily, one thing she didn't mention that she did, we did do a motion for exemplary damages, which based on the hit and run, which was ultimately denied, we didn't renew that at the end of trial. We felt it was going pretty well. We really wanted to make sure we didn't appear greedy.

Keith Fuicelli (: 46:53

So that motion denied there is a failure to mitigate instruction that's given. But did it list it, just paraphrase, did the instruction basically say you don't have to mitigate if it's a risky procedure like having an injection?

Glenn Fair (: 47:06

Yeah. You don't have to mitigate if it's basically there are serious risks such as an injection or surgery.

Keith Fuicelli (: 47:13

Wow. Okay. Marvelous. Marvelous. What an amazing result. And one of the things that I'm just so inspired by specifically how all the Keith Mitnick things played out to a T with your trial including Dr. sto. But the real takeaways I take from this are the subpoena D tecum for the experts financials and prior reports and fighting that fight because I know we all get busy and do we want to fight this fight? And Glenn, correct me if I'm wrong, but I believe that you have offered to the CT Listerv another, the actual subpoena that you served and the briefing associated with the motion to compel. Is that accurate?

Glenn Fair (: 47:55

It absolutely is. And so what I've been telling people, I've got a small Facebook group and I'll ask about plugging that later. Yeah, please.

Glenn Fair (: 48:03

So it's on Facebook. It's called PI Lawyers discussing RWTB, PI Lawyers discussing RWTB. And basically we just talk about running with the Bulls concepts. But what I've done for them, and I've offered to the listserv, is if you want my outlines for voir dire opening, closing, you could have those. If you want any of the subpoenas we issued, you can have those. If you want the motions in li, you can have those. The only thing you can't have is Dr. Still's deposition transcript because it's under a protection order, which also includes his financials and his disclosed reports. So I can't give you those, but I'm willing to give you everything else.

Keith Fuicelli (: 48:44

Fantastic. And how do listeners get in touch with you if maybe they want to work on some cases with you or just have questions? How do they get in touch with you?

Glenn Fair (: 48:52

So we are more than happy to help and discuss and if we can have an hour long phone call and it makes it so you can settle a case. We actually did that with another lawyer about a month ago. Helped that lawyer get policy limits. It's great. There was no co-counsel agreement. Him and his client got to keep all the money. Awesome. You can just give us a call at Oakmont Law Group. The number is 0 6 4 5 1 1 2 3. If you're trying to get me on the phone, it's a little difficult. You can imagine my phone's been blowing up from people all over the country over this last couple of weeks. Jana is my office manager and she runs my calendar for me, so she will put something on. You can also reach Emily at the same number. And then my email is Glenn, G-L-E-N-N, at Oakmont Law. And Emily's email is Emily E-M-I-L-Y at Oakmont Law.

Keith Fuicelli (: 49:46

Well, fantastic. I cannot thank you all enough for sharing what you learned and coming on the podcast. It has absolutely inspired me to get back in that arena as soon as I possibly can. And you took a case with $30,000 in meds and had multiple million dollar policy demands and ended up getting a 3 million verdict for all intents and purposes. So kudos to you and your entire team, and one of the things I most admire about you is your and I know from reading all your list or posts, your never ending desire to keep learning and keep becoming better. So thank you. Sincerely, thank you

Keith Fuicelli (: 50:26

Both for being on the podcast, and I look forward to seeing you guys in person soon again. Thank you, Keith. It's a pleasure. Thank you so much for having us. Thank you guys. Thank you for joining us. We hope you've gained valuable insights and inspiration from today's courtroom warriors, and thank you for being in the arena. Make sure to subscribe and join us next time as we continue to dissect real cases and learn from Colorado's top trial lawyers. Our mission is to empower our legal community, helping us to become better trial lawyers to effectively represent our clients. Keep your connection to Colorado's best trial lawyers alive@www.thectlc.com.