Kevin Cheney & Tim Galluzzi – Mastering “Impairment” Damages

Voiceover (: 00:00:00

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 (: 00:00:21

Welcome back everyone. I am Keith Fuicelli, and we are here on the Colorado Trial Lawyer Connection to chat with my good friends Kevin Cheney and Tim Galluzzi about some of the amazing results they have had recently in trial. And I mean, gosh, how many cases have you guys tried in the last year?

Kevin Cheney (: 00:00:42

Last year's probably been about six. We're at 10 in the last two years, so I think it's about six in the last year.

Keith Fuicelli (: 00:00:50

Wow. It seems so hard to get jury trials and you guys have done 10 and two years kudos to both of you, and you have had amazing results, and I cannot wait to dive in and I will be completely candid with you. I have stolen many of your amazing ideas and put them into use and it works. So can't wait to chat with you more about that. Before we jump in and talk about some of the trials, I guess I'd just like to know a little bit more about you. Both of you are c u law grads, go buffs, is that right?

Kevin Cheney (: 00:01:22

Go buffs.

Keith Fuicelli (: 00:01:23

Buffs. Go buffs. I don't want to date the podcast, but we have a little game against T C U coming up this Saturday that I am quite excited about, but big fan, both myself and John Lee, r c u law grads as well. Kevin, did you always know that you wanted to do trial work?

Kevin Cheney (: 00:01:40

Yeah, I always knew I wanted to do trial work. I actually went to law school though wanting to be a public defender, so I always envisioned myself on the criminal side and kind of working for the less fortunate in that capacity. And in my one L year, I got the opportunity to work for a PI firm and fell in love with suing insurance companies. And then I met Tim. We were actually mock trial partners and he and I had this crazy idea to open up a firm as soon as we graduated law school and kind of the rest is history.

Keith Fuicelli (: 00:02:13

Wow, that is wonderful. So Tim, you as well, when you went to law school, knew that you wanted to do trial work on the moot court team and everything?

Tim Galluzzi (: 00:02:22

Oh, no, no. When I went to law school, I thought that I was going to do contract work for athletes. I fought mixed martial arts at the time and there was a significant need for representation among athletes in that sport, and I thought that's what I was going to do. And then I did one mock trial and realized instantly that being on my feet and arguing that that was the stuff that I really liked. And then when we started our firm, my main concern was, one, I wanted to do trials, and two, I wanted to make money be profitable, but I didn't have a particular affinity for personal injury until I started doing the work. And now I just feel like super lucky that I've found this area of law where we get to help individuals against powerful interests and still get to trial and still make money. So the fact that we could do that while doing something that I can feel morally good about, I'm very grateful for.

Keith Fuicelli (: 00:03:18

Yeah, it just seems like we are also fortunate to do the kind of work that we do is what I'm hearing you say. And is that how you feel?

Tim Galluzzi (: 00:03:25

Oh yeah. Yeah. And I got to say, Keith, you touched on the fact that we've done all these trials in the last two years, and I think that I'm glad about that, but what that means is that we're not getting good settlement offers, so we must not be striking that much fear into opposing counsel to these carriers, but we're on our way to correcting that.

Keith Fuicelli (: 00:03:43

Well, it's kind of interesting. I'm glad that you mentioned that because you've mentioned that. Is it true that both of you started the firm right out of law school or shortly after law school?

Tim Galluzzi (: 00:03:52

Yeah, shortly after law school.

Keith Fuicelli (: 00:03:54

It seems like there's this unique window of opportunity when you're not well known by the insurers, and then they gift you with ridiculous low settlement offers, and it gives you a great opportunity to go to trial a lot. And then once you all start hitting success, you have all of a sudden it becomes more difficult and more difficult and more difficult to go to trial. So we'll have to follow up with you guys in a year or so and see if you're still able to clock six to 10 jury trials a year. Well, let me kind of digress for a second. Are there any lessons for anyone who's listening right now that is thinking about starting their own law firm? And you guys started your own law firm, I know, I think I saw some pictures on Instagram of you guys sharing a little desk and just starting from the ground up, what kind of advice do you give to people who are looking at lawyers like yourselves with all this success and think, you know what, I want to do that. Any advice?

Kevin Cheney (: 00:04:49

Yeah, sure. A couple of things really. I think one, and I can't remember who said it, there's a famous quote out there that's like people overestimate what they can accomplish in one year, but underestimate what they can accomplish in five or 10. And I think that was definitely true for us. We started the firm and we're like, oh yeah, we're going to sign five clients a month and they'll settle or go to trial. We were doing criminal at the time too, so we're like, we'll sign all these clients and it'll be super easy. And that first year, I don't even think we made a hundred thousand dollars total in revenue, and it was so hard. But then I look back and I'm like, now it's been about seven and a half years, and I'm like, wow, look at all we've accomplished, all the trials we've had and the verdicts we have. So I think that is the biggest piece of advice I could give to people that, and then a close second would be you really have to treat your law firm like a business. I think a lot of lawyers make the mistake by being like, oh, we're professionals. We're somehow different. The rules of demand and supply and customer service and all this stuff somehow don't apply to my law firm. And that is just not accurate. You are running a business that happens to be a law firm.

Keith Fuicelli (: 00:05:58

Great, great, great advice. Well, you both have certainly had amazing success, so I'd like to dive right into some of the techniques and strategies that you've used and really starting with voir dire. Well, and let me back up. Typically in the trials that you do, are you both trying the cases together?

Kevin Cheney (: 00:06:17

Yeah, the majority of cases we've tried together and really Tim has really been crushing voir dire and opening. He is done just a fantastic job. And I've traditionally been closing. We have tried a few smaller ones by ourselves, but for the most part we've been doing 'em together.

Keith Fuicelli (: 00:06:34

So Tim, is that you are primarily doing dire and opening in these trials?

Tim Galluzzi (: 00:06:40

Yeah, that's the routine that we've settled into for now. And it's hard in trial work once you start having success or once you get a handful of verdicts, you don't want to fix what's not broken, but at the same time you need to try new techniques and all that stuff. So maybe one day in the near future there'll be a trial where we'll mix up roles, but for now, the groove that we're in is all du vo dire and open, and then Kevin's closing.

Keith Fuicelli (: 00:07:07

Do you find, Tim, that there's a certain amount of superstition involved? It's like, look, if you've had success, it's the same socks, it's the same order of who's doing what vo dire opening all the way through? Yeah,

Tim Galluzzi (: 00:07:19

Yeah. That's certainly been my, it is the analogies to sports and litigation for me are always apparent, and that's definitely one of them. I have the same thing when I played sports or play sports. Once you start winning, you got to stick with that routine, and it's really hard to get out of it until you lose. And then it's easy to throw all that shit away.

Keith Fuicelli (: 00:07:41

Clearly it didn't work. I mean, if you lost, it must be the socks, right? Yeah, exactly. Exactly.

Tim Galluzzi (: 00:07:47

Yeah. I mean it's absurd either way. But

Keith Fuicelli (: 00:07:48

Yeah, you should have worn a blue suit instead of a black suit. Right, according to David Ball. Well, I have an interesting question for you, Tim, because understanding that you do the majority of the voir dire, I'd like to ask about your approach to voir dire, but before we do that, you and I think first met at that very first trial by Human Seminar in Boulder, Colorado. And my question for you is what's the one takeaway that you took from that seminar that you still implement in all of the trials that you're doing now?

Tim Galluzzi (: 00:08:19

Oh, that's a great question. I was just thinking about that seminar on the way to work this morning. I guess the biggest takeaway is the need to deeply connect with who your client is as a person in order to set yourself up for success at all phases of the actual trial. And I was thinking about it this morning because I have this client who is going through some really difficult personal stuff that's got nothing to do with his case, but at the same time, it has everything to do with his case. He's going through a divorce now, which is due in some part to the effects that his injuries have had on him. And I've had dinner at his house with him and his wife a couple of times, and I was thinking this morning how grateful I am to know them as people because even though they're going through all of this, I'm still confident that we can persuasively tell his story at trial using his ex-wife soon to be ex-wife as a witness, because I know that this is part of the story. So I think to me, just the need to deeply connect with who your client is on a human level to set yourself up for success at trial is the biggest takeaway.

Keith Fuicelli (: 00:09:33

One of the things that we did in that seminar that I thought was very useful is we did sort of a focus group voir dire where we had to stand up in front of the group. I thought I was so great at voir dire and quickly learned. I had a ton to learn. And I'm wondering, how do you prepare your voir dire before trial? Are you doing it with focus groups? Are you using focus group jurors at the grocery store? How do you prepare what you're going to talk about in voir dire going into trial?

Tim Galluzzi (: 00:10:04

I talk to people that I don't know about the issues that are going to come up in my case and whether that's random people that I run into at the grocery store or whatever. And then I also will practice my voir dire. So I'll workshop kind of issues in my case, talking to people that don't know me, don't necessarily know much about the case. And then once I have a voir dire down, I practice in front of my wife because she knows me so well that it forces me to really be authentic. And in the moments when I'm practicing, when I start to do weird stuff, that's not really me, I can see it on her face that I've stepped out of who I am now and I'm playing a role here. So yeah, I'll workshop the issues with randoms. You might call 'em random focus group jurors, but then I'll practice the finished product with somebody that I know.

Keith Fuicelli (: 00:11:00

Well, let me ask you a little bit about the technical aspect of voir dire. Do you find yourself doing, are you a Nick Raleigh brutal honesty guy? Are you a mitnick? Do the pie analogy guy? How do you sort of get into voir dire and do you find yourself using the same sort of techniques in every trial?

Tim Galluzzi (: 00:11:23

Good question. So I'll take it in reverse. Do I use the same techniques in every trial for the last, let's take the last 10 trials as an example. No, but I used different techniques in the trial, but it was sort of a trial and error thing that was happening. So by the last three trials, I had sort of settled into the same structure, same routine, and so I did pretty much use the same techniques in the last three trials or so that I've done. And in terms of the technical aspects, how I approach vo dire, first of all, the exercise that you mentioned with Nick Rally stands out in my memory as well. And there's one thing that he said in that vo dire that really stays with me. And that if you're standing in front of a group of people and you don't need anything from them, it's a powerful place to be.

(: 00:12:17

And those were his, and I remember the quote nearly verbatim because I have found it to be so true. And the brilliance of it is that you just need to find out who these people are and what they think and believe, and you don't need any more than that. So in order to do that, I go into a voir dire with an attitude of love and trust for this panel of strangers who I'm about to meet for the first time, five minutes before trial starts, I go to the bathroom. That's a routine, that's the same pair of socks for me. So then when I'm walking back from the bathroom, I say verbally out loud to myself, love and trust, love and trust, and that's the mantra that I want to carry in. And then when I get up to start voir dire, I will do a quick intro about how meaningful it is, how the jury system is this really cool thing, I'll acknowledge some aspect of the juror's experience, and then I will go into brutal honesty.

(: 00:13:20

And I don't start with bias questions. So when we went to that Nick Rally seminar or in his materials or in Keith Mitnicks, laying the foundation for brutal honesty is very important because the first question that you're about to ask these people gets to the heart of, are you on board with these damages? Are you skeptical of personal injury plaintiffs? Something along those lines such that you need them to be brutally honest right away. I have since changed that approach. And now after I do my section on brutal honesty, I will get into sort of issue oriented questions in the style of 12 heroes, one voice, or sorry, Dale Lamott's work. And then I will shift to bias questions. But I have found the laying of foundation for the brutal honesty stuff is so important to come back to later on when I see a juror struggling with a question, I'll say, Hey, come on now. Brutal honesty. So I have kept that as part of my voir dire sequence, even though I don't hit bias right away. I just think that it's really nice to frame what this conversation that we're about to have through honesty.

Keith Fuicelli (: 00:14:33

Got it. And that makes a lot of sense and totally appreciate where you're coming from. Last question on voir dire sort of specifically, are you generally talking numbers in voir dire millions of dollars more than X amount of money? What are your thoughts and feelings about mentioning specific dollar amounts or even lots of money in voir dire?

Tim Galluzzi (: 00:14:54

Yes, I do it. I bring it up because I think that this concept of anchoring has been borne out by social science research. We know that anchoring is a real phenomenon, so it's important to me that I suggest a number and a big number. And how I do it in voir dire is it's in the context of burden of proof. So I'll ask the jurors the burden of proof, here is a preponderance of the evidence, and then I'll also do a quick explanation of what preponderance means, and then I'll tell them that that's the same burden of proof. If I'm asking for $10 million or $10 and $10 claim, fine, no problem. Preponderance of the evidence, whatever. But when we're talking about $10 million, there's some people out in the world who need a little bit more of a degree of proof. They need clear and convincing or beyond a reasonable doubt or something like that. And so who's comfortable with that? Who's okay with that burden? So I do suggest a large number to anchor them. I do it in the context of the burden of proof. And then in opening I just say, we're going to ask for millions of dollars. I do not give a specific number.

Keith Fuicelli (: 00:16:14

Great. Have you found what success, I should say, have you had striking jurors for cause in voir dire?

Tim Galluzzi (: 00:16:22

I have had some success, and this has sort of been an evolution for me. So when we first started doing voir dire, getting strikes for cause was an important part of what we were trying to do both because we came from a criminal defense background and reading Keith Mitnick stuff. So now I'm less concerned I guess about it. It's not a specific goal of mine of like, oh, I need to strike as many jurors for cause as I can. And to be honest, because I do these issue oriented questions first, I get jurors talking and sort of comfortable and all of that. And I think that it's harder ultimately to strike jurors for cause when you don't start with those bias questions. But when I get to the bias questions section of my voir dire, I have jurors been stricken, I have had jurors stricken for cause around those things.

(: 00:17:20

So the burden of proof thing is an example every now and then a juror will be like, yeah, if you're asking for 10 million, I need clear and convincing. And so then you can sort of go down and lock them into, you just couldn't follow the law on that point. And in Colorado there's a couple of cases where in one, a juror said that the plaintiff would have an uphill climb, was the magic words that the court of appeals I said is okay. So I try to lock the juror into that. So not as much success days striking jurors for cause, but it does happen sometimes, I'd say usually in every voir dire at least one, but sometimes as many as four or five.

Keith Fuicelli (: 00:17:59

Ah, okay. And Kevin, are you doing, you mentioned that you're doing closings. Do you generally do both closings or first close and then Tim does second close or what are your thoughts on that?

Kevin Cheney (: 00:18:11

Yeah, we generally do the same person who does first closing also does rebuttal. So I'm generally doing them both. And there's just one thing I wanted to add about voir dire, and Tim I think touched on it a little bit, but for the first several trials we did, I mean all of our first trials were criminal. And then even our first few civil trials, we were big followers of the Colorado Public Defender Method that the only purpose of voir dire is to identify bad jurors and try to get him kicked for cause. And when Tim read from Hostage to Hero and 12 Heroes, one voice and was like, Hey, I want to try this new idea, I was so skeptical and I was like, I don't know, Keith Mitnick does it, this bias stuff. That's what works for the public defenders. I was incredibly skeptical until I saw it in action and I saw the first case that he tried it in. I think we ended up was at 1.6 or 2 million right after interest in everything ever since then. And watching Tim do the, I am the biggest convert out there that starting with trying to build your tribe and starting with this oriented stuff before you go into bias, just the reaction you get from the jurors and the way they talk to you, I am a complete convert. Haven't seen it in action.

Keith Fuicelli (: 00:19:32

Tim, is there an example of, you mentioned issue specific questions. Is there an example that comes to mind so we can kind of have an idea of what you're talking about on that?

Tim Galluzzi (: 00:19:41

Yes. So we try a lot of car crash and premises liability cases. So some of this is specific to those cases, but for example, in a contested liability case for a car crash, we will ask questions that allow the jurors to put themselves in the position that the defendant was in and brainstorm choices that they would make in that safe choices that they would make in that same situation. So we had a crash that happened on a two-lane highway in snowy weather, and the defense was nothing we could have done here because of the snow. And so our first questions were, who here has ever driven in the mountains in the wintertime? And we're in Colorado, so everybody puts their hands up and you just start going through with jurors, what are the things that you do to make sure that you're staying safe? And eventually they gave us our theme, which was that you have to go slow to stay in control. That was it. Glow slow to keep control, go slow to keep control, and they were the ones giving us that language. So that's a technique that I think works particularly well in disputed liability car crash cases. And

Keith Fuicelli (: 00:20:48

How much, it's interesting, it makes me think about whether or not preconditioning jurors in voir dire because we've heard, oh, it never works, don't waste your time on it. But that almost sounds like a way of preconditioning the themes of your case in a way that's favorable. And I will tell you that I have seen defense lawyers master preconditioning jurors in a way that I'm like, I think preconditioning works to some degree. So when you're doing that type of voir dire, is the main goal try building, is it preconditioning? Is it just creating a connection to human connection with the jurors or is there a specific goal you have when you're talking about those types of specific issues?

Tim Galluzzi (: 00:21:31

Yeah, it is preconditioning a hundred percent because like I said, I'm not going to strike any of these jurors based on these answers. It really is just getting them in, thinking in their minds, what could this defendant have done differently? And the other thing too is that, so in a first party u i M case where you're suing the client's own insurance company, you can get the jurors ultimately to talk about out loud how they would've done the same thing that your client did. So you can come up and be like, who here has ever made an insurance claim? People put up their hands, what happened? Oh, I submitted the documentation, they paid the claim. Great. What would've happened if you submitted this documentation? And they denied the claim? Like, well, I would've fought 'em. What if you fought 'em? And they wouldn't change their mind. Eventually they'll say, I would sue. And then great, is there anybody here who would not sue?

Keith Fuicelli (: 00:22:24

That's brilliant. I love that. Love

Tim Galluzzi (: 00:22:26

No hands. And so then everybody's in the frame of we are on her side, we would do the exact same thing she did.

Kevin Cheney (: 00:22:34

And it works actually beyond liability. One of the things that we love to do is ask what people's favorite hobbies and stuff are. That's usually one of the form questions the judge may ask. And then you can follow up and ask, who here has ever had chronic pain or knows anyone who's had chronic pain, has that ever, who here has ever been unable to do an activity that they loved or not as often because of chronic pain? And you'll almost always get some hands up and then just be like, tell us how did that make you feel? What was it like not being able to do your favorite activities? And you get these jurors just talking about how awful it is and even the people who've may have never experienced it are now hearing these neutral jurors talk about just how horrible it can be. And then when your client gets up there and starts talking about their inability to do their favorite activities, I think it all just really resonates. You can do it on a host of issues beyond just liability. That was the only thing I wanted to add.

Keith Fuicelli (: 00:23:33

No, I love that because it's almost like you're having the panel thinking out the gate, okay, what is the value in either someone not being able to do something that they love or living in chronic pain? And question then to you Kevin, because I definitely want to spend some time chatting with you about your thoughts about impairment versus non-economic damages. And you all have had amazing success in getting jurors to put the money in the impairment box. So I guess generally speaking, what's the secret to your success?

Kevin Cheney (: 00:24:10

Sure, and that's a great question. I think there was a few things. So we all struggle with Colorado is super unique in that we have this third line on the ballot for physical impairment and you're instructed, there's no definition for it, but you are instructed that they're not to award damages that are duplicative for non economics and physical impairment. And so we kind of started looking at this and saying, how can we make these as different as possible? How can we make them as separate as possible? If you just hear the word impairment, right? If you're impaired in your ability to hike, if you're impaired in your ability to take care of your children or to clean the house, those are all non-economic damages, even though they use the term impairment. And so we really looked into Preston and Pringle, which are kind of the two seminal cases on this topic.

(: 00:24:59

They're in the med mal context, but they're talking about physical impairment and they basically talk about how a person is entitled to have a sound body in mind and that if you take something you harm that body or mind, then you've taken something that is valuable beyond just non-economic damages. And they actually cite to, I think it's a fifth circuit case that says you can actually have physical impairment even if you have no pain or suffering, even if you don't even know that you're injured, if your body's damaged, then you can actually reward that. So that got us thinking, okay, I think the best way to separate this is non-economic damages compensates you for the things that you feel, the pain, the suffering, the sadness, the frustration, the inability to do activities, all of that is non-economic damages. Physical impairment compensates you for the financial physical value of the body.

(: 00:25:56

And so we basically treat the body like it's a car or a comic book or anything else that has value. If it is damaged, then the body is worth less. And so kind of how we set up this argument is we concede to the jury, look, there is no body store, right? You are having to appraise an item that has not been appraised before. And we say, so I can't tell you exactly how much a body is worth, but I can tell you that a body has all the hallmarks of something that is incredibly valuable. Specifically a body is one of a kind and irreplaceable. A body has sentimental value, a body has a functional value. And so just like one of a kind painting or one of a kind house, this is something that has a lot of value. And so I can't tell you exactly how much it's worth, but I can tell you it's worth a lot.

(: 00:26:52

And then what Tim and I do basically is try to determine what we are going to argue our client's body was worth the day before the incident. And so we may say a mint condition human body is worth 10 million, our client was 30 years old, so we're going to depreciate it and we're going to say our client's body was worth 7.1365 million. And then we multiply that by how much impairment there is. We love to get permanent impairment ratings from the A M A guides. We're huge believers in that we try to do that in every case. And then you just multiply the value of the body by the impairment. So if it's 10% and you say the value of the body's 7 million, then we ask for 700,000 for those damages. If we don't have an impairment rating, we just pick a number that we think is fair. We say our client's body, she can still walk and talk like her mind is fine, she has back pain. Her body we're going to say is 7% impaired. And that's basically kind of how we do it.

Keith Fuicelli (: 00:27:57

I love that. And question is, do you have any tips or strategies on how to get the money and a small amount of money in the pain and suffering, the non-economic damage bucket? So do you say anything? I heard David Woodruff say one of the things that he does is says, my client doesn't want a penny more than like a hundred thousand dollars. She's a tough cookie, she's going to fight through this pain, not a penny, more than a hundred thousand. What we're really here for is impairment. So I'm just wondering if you all how you go about trying to nudge those jurors into not putting too much money in the noneconomic bucket?

Kevin Cheney (: 00:28:31

A few things. One, Tim and I are big believers in using specific exact numbers. We don't round anything. So all of our asks are generally for these, including cents even. We're very specific. And so for non economics, we'll usually do a per diem calculation, a dollar an hour, $2 an hour, and whatever that number is, we will say we don't want any more for economic damages. The medical bills and the lost wages are what they are. We don't want any more money in the non-economic category. We feel like this is very fair. If you do want to add more, please add it in physical impairment in speaking with jurors after the fact, most of them are smart enough to figure out why we're asking that. But it also is how you phrase the case in closing argument. We spend one minute maybe talking about economic damages.

(: 00:29:24

It's like a throwaway slide. We're like, Hey, write down this number. This is how much the medical bills are. Then non economics, we spend maybe five to seven minutes, kind of a medium amount of time. And then physical impairment is the bulk of the conversation. And that's what we say is this is about the permanent damage. And in speaking with a lot of jurors, permanency in my view is the single biggest driver of value in cases. And in all 10 cases, Tim and I tried in the last two years, we didn't have a single case with a surgery, no surgeries, no catastrophic injuries. It is mild to moderate permanent injuries that can drive these cases that you're getting like $40,000 offers on. And those cases, in our view can be worth a million plus if you can persuade the juror that, look, this person has two out of 10 pain for the rest of their life because of a herniated disc or a ligament injury. And so permanency is I think the real key here.

Keith Fuicelli (: 00:30:26

That makes a lot of sense. And Tim, do you have something to add to that?

Tim Galluzzi (: 00:30:30

I do. First of all, is someone snoring? Do you guys hear this snoring that's happening?

Keith Fuicelli (: 00:30:35

I hear it and I don't know, it's like a dog. I don't know what that's from. I hear it and I don't know what to do about it. There it is, right there it is.

Kevin Cheney (: 00:30:45

It's my dog.

Keith Fuicelli (: 00:30:47

Oh my gosh, it's my dog. I was hearing the same thing, and I'm like, is it? Yeah,

Tim Galluzzi (: 00:30:56

That's hilarious.

Kevin Cheney (: 00:30:58

I

(: 00:30:58

Have the noise canceling headphones, so I couldn't hear.

Keith Fuicelli (: 00:31:02

Yeah.

Tim Galluzzi (: 00:31:03

Yeah. All good, all good. Hey, plug for law pods for getting that out of there,

Keith Fuicelli (: 00:31:07

Huh? I know, right.

Tim Galluzzi (: 00:31:10

The thing that I was going to piggyback off of Kevin to say is this, the time that you spend on the evidence also has to reflect that proportionality. So you're saying in closing, he talks just for a second on the medical bills and a little bit more on non economics and then a little bit more on physical impairment. And it's important that the evidence have that same, those same proportions because we have had cases where the way that the evidence and the testimony comes out, it sounds like the pain and suffering is really what's going on for our client. And so I have had juries where I've asked them, look, don't give us that much in non economics. Put it in physical impairment. And then sure enough, we had a jury give us 800,000 in non economics. We only asked for, I don't know, maybe six 50 or something like that, but it was a 2019 case. We were capped to like 4 68. But to be fair to those jurors, that is how the evidence came out. That's on me to not structure that better and make sure that we weren't spending more time with the doctors talking about what are the consequences to the anatomical function of this body part and spending all of our time and the testimony there rather than how bad it was for our client and how much her life sucks now. So it's just really important that the evidence at trial be presented that same way.

Keith Fuicelli (: 00:32:33

That's such a great point. And talk to us a little bit, either Kevin or Tim, how you utilize the actual impairment, the change in the body. If you're arguing that this is going to have long-term consequences, this is what this is going to look like down the road. You had this sort of pristine body day before, or maybe it's not a pristine body, maybe it's a body that's had a few miles underneath the tires and now comes in and now is at this other level. How do you go about talking with the jury about how that loss of anatomic function, that impairment if you will, is fairly and fully compensated either Kevin or Tim?

Kevin Cheney (: 00:33:16

So I think it's important to talk about that you only get one body. And where the idea for this argument came from was actually a 23 and me commercial in the Super Bowl in which they had Warren Buffet narrating this ad. And Warren Buffett is actually really famous for saying this. He talks about it with kids all the time. Basically, what if I told you I'll give you any car in the world, any car in the world, I will buy it for you right now, but here's the deal, it's the only car you get for the rest of your life. How would you take care of it? And then he says, now obviously you're not going to only get one car in your lifetime, but you are only going to get one body and one mind. And so originally we were thinking like, oh, should we use this commercial and close?

(: 00:34:05

But I think it's just talking with all humans understand that this is the only one they get. And the sad reality for a lot of our clients, especially when you're talking about the spine, is the spine only degenerates. It only gets worse. And even the most ridiculous i M E doctors will give you that the spine does not improve. That whatever it is right there that day is the best it's ever going to be for your client. And they'll also give you, there are a lot of doctors that are afraid of the word permanent. And so you got to kind of really hammer 'em down with what you mean. And so you say, look, you agree, my client has a herniated disc. Maybe you dispute where it came from, but you agree they do. Right? With current medical technology, there is nothing out there that can literally push that disc back in and heal that tear.

(: 00:34:56

You may be able to control the pain with injections and RFAs, but there is nothing that can change that is a permanent physiological change. And they'll almost always give that to you. And so then I think that when you're talking about with the jury, you just say the human body because it's irreplaceable is the single most valuable thing all of us own. And just because you can't buy it and sell it like a car doesn't mean it is not the most important aspect. And even if you damage it 2%, 5%, if it was repairable, that would be no big deal. But if you damage one of a kind item by five, if you spill a little coffee on a Babe Ruth rookie card and you damage it 5% from mint condition or even from a grade eight down to a six or something like that, the loss of value is going to be massive.

(: 00:35:53

And so it's a little easier when you're talking with younger people. A lot of our biggest verdicts are mild to moderate injuries for people under the age of 40. But even with an older person, you can say, look, this person's body was at 60% and this injury took 'em down to 50. And that doesn't seem like a big deal until you're the person who asked to live it. They had their life. And that's where you use a lot of that Keith Mitnick and some of the damages by David Ball. We love to frame things as being taken a loss of freedom. What was taken from them was their body as it existed the day before the incident. And now it's almost like those superhero movies where they go back in time and create an alternate timeline. The defendant's conduct created an alternate timeline for our client that they will never get off, that this is their new reality and they have to be compensated for the difference in what could have been to what is now.

Keith Fuicelli (: 00:36:53

I love that. Do you have any suggestions for how to convince jurors to give full compensation? And if full is reasonable, what you got, Tim?

Tim Galluzzi (: 00:37:03

So I was going to piggyback off what Kevin just said too, and it actually gets to your follow-up question. So two things that Kevin does in closing that I think are really effective around this issue specifically or this, the first is his presentation style. Kevin's a big loud guy, and when he starts to talk about the impairment and how important it is, he gets quiet and he gets serious. And that I think is super important. So just as a presentation aspect, jurors sort of lean in and they're all like, oh man, this guy's getting quiet. This is something that's worth paying attention to. So just from a tactical approach there, and then to your question about getting full value, so Kevin will be like, look, what makes your job hard as jurors is that this injury is permanent. And so when you're going back there in the room and you guys are talking about this value, I hope that one of you is saying, we have to account for the fact that this is going to last for the rest of her life.

(: 00:38:06

And what that means is that you have to account for every moment in that life where this impairment shows up for her every time that her friends are going snowboarding, and she can't, every time she gets the desire to put on her running shoes and go run five miles and she can't every time that she gets out of bed in the morning. And last night was a rough night, didn't sleep so good because of the neck. Because if you don't do not include even one of those moments for the rest of her life, then that is not justice. And so I think Kevin's real winning technique on that.

Keith Fuicelli (: 00:38:42

It sounds like that's empowering your favorable jurors. You're saying, I hope that one of you says X, that I have not heard it that way, and I really think that's brilliant. Was there something you were going to add, Kevin?

Kevin Cheney (: 00:38:53

Yeah, so this kind of theory, we call it the dignity of damages, and that's actually from Keith Mitnick. But basically what you say is, is that if they miss even one of those moments one day, let's say, and you pick a random day, 23 years, seven months and 12 days in the future, she wakes up with a little bit of neck pain. If you aren't thinking of that moment when you're awarding damages, then what you're saying as a matter of fact, right, you are the finders of fact that that moment is meaningless. It has no value. And so your damage award gives dignity to my client by saying, we hear you. And even the small moments getting out of bed with three out of 10 pain, you're still able to go about your day that has value. And so I, and we always use the word appraise, right? You have to appraise that value. But yeah, Tim's right by saying, if you miss even one moment, right, then what you're basically looking at my client in the eye and saying, your suffering has no value,

Keith Fuicelli (: 00:39:59

And I really appreciate you saying that I have yet to incorporate the word dignity that Keith Mitnick talks about in damages. Are you actually saying that to the jurors in closing? And if you are, could you give that example again or explain some of the words that you're using to really drive that point home? Because I found that just fascinating.

Kevin Cheney (: 00:40:18

Absolutely. Not only are we using it, we have a slide that literally just says the dignity of damages. Wow. So we will stand up there and say, I want to talk to you a little bit about what we call the dignity of damages. Because as the appraisers in this case, you have to appraise all of the suffering, the stress, and you have to appraise the value of the human body In this country, we don't do I for an I justice, we're not going to go give the defendant a herniated disc because that's what they did to my client. But we also don't believe in blind eye justice where, oh, sorry, that happened, my bad. And so the only thing that we can do is appraise the value of what has been taken. And through that process, you give dignity to the injured person by saying, Hey, you've listed off 75 different ways you're impacted when you are at your, recently we had a case where the person was at their kid's soccer game and they couldn't run up and down the field and follow their child anymore they used to.

(: 00:41:18

And so we say every one of those moments has value, and you have to decide, is that moment worth a dollar, $5, $10? But if you don't think about it when you're back there in that jury room, then what you're saying as a matter of law, that moment no value, that it is a worthless moment. And I believe that that's not true. I believe that that suffering does have value losing out on your activities, losing out on your hobbies, trying to shower and shampoo your hair, and you have pain in your arm. Every one of those moments has value. It might be a small amount, might just be a dollar or two, but you have to take every one of those moments multiplied by life expectancy and add it all together. And that may come to a really big number, but I would think about it in smaller parts and really give dignity to the client and acknowledge what happened here. And that fits in really well with Tim's vo dire themes of building the tribe and letting the jury be the hero, right? The jury is the hero, the jury, your client is important but is not the hero.

Keith Fuicelli (: 00:42:24

I really love the way that you frame that. And as you were doing that, I'm wondering, do you then talk about verdict for all time and talk about how we can't come back in 20 years and tie that into that analysis? Because it seems like that would just work perfectly with what you're saying. Love it.

Kevin Cheney (: 00:42:39

Yeah. We use, I think Nick Rowley, and then I actually think we might have stolen it from you. We use the timeline, we use the timeline, the time

Keith Fuicelli (: 00:42:47

Machine, the time machine, the time machine,

Kevin Cheney (: 00:42:49

The time machine. And so we go from forward and back and talk about the price of gas 46 years ago and talk about the value from old time, and then we end with the man with the briefcase. This has to be a fair trade.

Keith Fuicelli (: 00:43:05

So any listeners out there, and of course Tim and Kevin hit me up because I have a new slide that is the time machine, but it doesn't do the sort of time machine with all the years going by, I felt like maybe that maybe was a little too gimmicky, but I have a single slide that gets the same message across. So chat with me before your next trial and we'll see if we can't improve our demonstrations, we need to have a whole group where we just talk about various demonstrative aids and sort of what works best. So that has been fascinating. Question is what have you found generally? Have jurors ever given you exactly what you asked for, or are they coming in at 50%? I mean, obviously you've tried a lot of cases, so the verdicts are all over. What are you generally seeing as far as ASK versus award?

Kevin Cheney (: 00:43:50

So a few of the cases they've given us exactly what we asked for. A few of the cases they used our model. So we had one case, and this was one of the first times we ever did it, where the jury awarded $4,000 in economics, $7,000 in non economics and 110,000 in physical impairment. And they were like, we believed your client was 99% healed after five weeks, but we gave them 1% impairment at a 10 million valuation, so we gave him a hundred thousand for the impairment. We have had, and Tim can talk about this, one of his cases, he had one, but we have had one jury that just rejected the entire premise of the human body having value and gave us a really disappointing award in our view. Still beat the policy limit, but just barely. But the majority of them have been giving that number or using it and kind of being like We chopped, we decided the human body was only worth 5 million, not 10 million. Tim, do you want to talk about one of your cases where they didn't award impairment?

Tim Galluzzi (: 00:44:55

Yeah, we actually got zeroed on impairment in this case too, but generally speaking, I think that the only time that the jury is going to give you every single dollar you ask for something close to it is when three conditions are met. One, you have a client that they like and want to give money to, two, you have injuries that are legitimate and objectively provable by imaging or the like. And three, they fucking hate the defendant or their lawyer or their lawyer. They're just like something about the defense just they don't like. And if you have all three of those things, I think your shot of hitting a home runner are pretty good. And so if you do have all three of those things, I mean, that's the case that you try. It's up to the defense to persuade you not to try it. But yeah, so Kevin was asking about the case where the jury just rejected it and was a young girl, she's 29 years old, had a permanent instability, so just ligament damage in her neck.

(: 00:45:49

And we asked for, what do we ask for? We did a dollar day or dollar per hour evaluation on non economics, and then she had like $17,000 in past meds and hadn't treated in two years by the time we got to trial. So all we asked the jury for was $17,000 in her past meds. No, that's not true. It was 30, excuse me, it was $30,000 in past meds. And then we asked for a shitload of money on impairment permanent injury. Young lady did the whole argument, and the jury gave us $30,000 in non economics. They gave us $232,000 in economics, even though we only asked for 30, and they zeroed us on physical impairment. And so we were talking to the jury afterwards who, by the way, we had an MD on our jury, which was great fun, and we were wondering whether we should have left her on, she was a good juror for us.

(: 00:46:46

But basically in the jury room, they decided that as long as our client, the P R P injections that she had gotten were so effective that she hadn't treated for two years and because it was regenerative medicine and all that stuff, their theory in the deliberation room was that as long as she can get these P R P injections for the rest of her life, then she's actually doesn't have any physical, there is no harm to the anatomical function or at least no meaningful harm. So they went to the billing summary, the c r E 1 0 0 6 billing summary, found the price of P R P injections and multiplied that out every five years for the rest of her life. And that was how they came up with their award. So yeah, it doesn't always work, but in that case, like Kevin said, there was a hundred thousand dollars policy. So anything above that was, it could have been infinity and it wouldn't have mattered. So client was still happy, but my trial lawyer pride was very damaged.

Keith Fuicelli (: 00:47:48

Well, it's still an amazing result, and I know one of the people that I listen to all the time, it doesn't matter how you get to justice, doesn't matter how you get to the number as long as you get the number. So at least they gave it to you in economic damages. So you weren't capped. At least you haven't been where I have been, where I got zero impairment in 1.5 million on non economics. So it happens. It happens. That's

Tim Galluzzi (: 00:48:10

Right. That's right. Yes. The very famous philosopher and thought leader, Dominic Toto once said, it don't matter if you win by an inch or if you win by a mile, winning's winning.

Keith Fuicelli (: 00:48:21

I love it. I love it. Well, and what I am so impressed with both of you is just your willingness to be in the arena. And of course, if you're not in the arena, you don't give the defendant a chance to make mistakes, and you don't give the jurors a chance to be angry at the defendant and making them come to trial. One question I have that I've been toying with in my mind lately is there's a lot of talk about having the jurors understand why they're really there, that it's not your client being greedy, that there's something else going on. Are there any sort of trial techniques that you use to make the defense the villain and combat the defense attempts to make the plaintiff's lawyer and the plaintiff the greedy villain? And Tim, is that something that you might have some thoughts on?

Tim Galluzzi (: 00:49:14

Yeah, I think that's a powerful reason to start with issue, issue-oriented questions because you're getting right to the defendant's conduct in the case, and I think it has a lot of value for several reasons. Like I said earlier, it is already the jury is sort of brainstorming safer choices that the defendant could have made. But in the back of their minds, jurors have their sort of metacognition going on. So while they're listening to you and thinking about what their answer might be, there's also a little narrative that's running in their head already. And even if you don't actually say, this is what the defendant did, and this is what this whole case is about, if the first question out of your mouth is who here has experienced driving in the wintertime? What are some things you did to stay safe? Another one was we asked about who here has ever come up to a two-way stop where you had the stop sign, but through the traffic going the other way, it didn't.

(: 00:50:10

And had him brainstorm about what do you do if to stay safe in that instance, because we alleged that this defendant had pulled out in front of our client. So we had had that discussion and then we move on. And later on in the voir dire, some juror was like, Hey, I just wanted to talk about this experience that I had because it sounds like what this case is about is somebody blew a stop sign and hit somebody. And so we never said that, but already in his mind, that's kind of where he was going. So I think that using these issue oriented questions first in voir dire is a way to get the point across subtly.

Keith Fuicelli (: 00:50:46

And it seems like when you're doing that too, and then you're talking about the value of the human body, all of a sudden you have the defense who's invariably trying to discount the value of damages and trying to dignify the value, the damages that you're seeking, and it hopefully becomes apparent to the jurors why you all are really there, especially when the defense gets up and says, award $10,000 or something for impairment. Kevin, was there something that you wanted to add to that?

Kevin Cheney (: 00:51:12

Yeah, because another thing that Tim really showed me that I think is super effective, if they have not admitted liability, which a lot of these defense attorneys, they just can't help themselves. They should clearly admit liability, but they want to run comparative fault. And so they don't. You can literally get up there and say, we're not here to fight about money. We're here because the defendant literally can't admit that it did anything wrong. And so we had a lot of these cases where if they had admitted liability, I think we would've been in a much harder position. But because then they think, oh, is the plaintiff just being greedy? It's just a fight about money. I'm sure there were settlement offers that were made, but if you can get up here and be like, we're not talking about money. The defense thinks that it's $0 because they can't even admit they did anything wrong, and that's why we're here because they can't even acknowledge we screwed up. Let's discuss how much it's worth. They're saying we didn't even screw up. So I think anytime you have a disputed liability case, you have to hammer that. The reason why we're here is the defendant won't admit liability.

Keith Fuicelli (: 00:52:21

I think that it is a wonderful gift. Hopefully I have a rear end denial of liability case going in two months against, you know who, and it's just, I'm hoping that it's a gift, but of course, I'm afraid because somehow the defense has been successful somehow arguing that when you were in somebody, it's not the defendant's fault. So as we wrap up here, having tried all of these cases, and I guess I'll ask you both this question starting with you, Kevin, what do you think is the most important part or the most important secret ingredient to success at trial?

Tim Galluzzi (: 00:52:59

And wait, Kevin, before you answer this pancake has fallen back asleep.

Keith Fuicelli (: 00:53:05

Kick the dog

Tim Galluzzi (: 00:53:08

Gently wake him up.

Keith Fuicelli (: 00:53:09

There you go, buddy.

Kevin Cheney (: 00:53:14

I would piggyback on what Tim said earlier with that, connecting with your client on a human level would be my number one. But since he already said that, I would say that the second most important thing to me is understanding the medicine, especially as it relates to permanency and really, really hammering the fact that this is a forever injury and that the person they see before them today is as good as they're ever going to be, and that it likely is going to get worse over time. And in speaking with juries, I just think that that has been the single biggest driver and really the secret to a lot of our success, along with Tim's really good voirdire techniques.

Keith Fuicelli (: 00:54:00

And before we hear Tim's thoughts on that too, I have a follow-up question, Kevin, since you're doing the majority of the closings, how do you deal with sympathy for the defendant or the defense attempts to think that the defendant is somehow paying this personally? Is there some kind of secret voodoo magic? You have to make sure that the jurors realize that this is not about what the defendant is going to pay. This is about appraising the value harms and losses.

Kevin Cheney (: 00:54:24

Yeah. We have a slide basically on improper things in the jury room, and so we'll say, Hey, some people may bring this up, but just so you know, this is improper. It's improper For somebody to be like, well, I only make X dollars an hour at working at the job, and they want all this money. And we'll say, this isn't a case about the appraisal of labor, the value of labor. This is about the value of suffering, the value of permanent injuries. Then we'll say, I know such and such, he only got X amount in his car crash. You don't know any of the facts that you're not the jury for that case. You're not the appraisers. And then we'll also say, some people will be like, who pays and who gets what? And Tim actually found this on a podcast. And so we say there's in the box and out of the box stuff, your job is to determine liability and then appraise value. Then it gets transferred over to the judge, and the judge can increase or reduce the award. The judge determine who pays, but none of that is proper for your way of thinking. It's not a perfect system, but it's worked pretty well for us so far.

Keith Fuicelli (: 00:55:31

Brilliant. I love that. I'm going to follow up and ask for your slide on improper items in closing. And Tim, what are your thoughts on it? What are your thoughts about, well, and actually have kind of another random question. I know we're almost out of time, but I know that you are a big jiujitsu fighter. So my first question is, how does your fighting spirit translate into you as a trial lawyer? And then the second question is the same question I asked Kevin, which is sort of what do you think is the secret to success in the courtroom?

Tim Galluzzi (: 00:55:58

Awesome. Thank you. Both of those are great questions. Before I answer, I do want to touch on this slide that Kevin has mentioned because every now and then we'll get objections to this, some defense oil freak out about talking to them about what happens to the verdict and all this stuff. Most of the time we don't, for what it's worth, which to your point earlier, Keith, sometimes you just got to try cases and try this stuff and you'd be surprised at how rarely a defense is going to object. But sometimes they do. And it happened to me in a trial, actually just this past March. I put up the slide about if somebody says, what happens if we deliver a large verdict? Who pays? What does it get paid? And all that. And the defense lawyer, yeah, objection, your Honor. We need to approach. And he's all right in the face, which is how you know that it's good.

(: 00:56:47

And so we go up to the judge and he's like, your Honor, they can't be talking about all this stuff. And I'm like, your honor, this is a correct recitation of the law that isn't proper for the jury to consider. And when they're back in the deliberation room, it's going to come up. It's natural human instinct. How is this going to get paid? That's a question that's going to get asked, and it's fine for me to address that in argument as long as I'm not misstating the law, which I haven't. And it was one of those situations where the judge is, it doesn't really know what to do. They're like, ah, overruled for now, but no more. Just move on. So just heads up that every now and then you might catch an objection to that and you'll just have to see what the judge does with it then to answer your two questions.

(: 00:57:30

Before law school, I fought mixed martial arts. I had 14 amateur fights and five pro fights. And then since I was 18, I have competed actively in Brazilian jiujitsu. I got my black belt from a guy named Amal Easton about six years ago. And it is a huge part of who I am. It definitely shapes my identities in more ways than I could tell you right now. For trial work specifically, the biggest way that juujitsu and martial arts training has helped me is to keep a level head when I'm under attack and I see it in litigation, it is a combative business. It's zero sum at trial. Either you're going to win or I'm going to win. And just because of the adversarial nature of it, I think a lot of lawyers take shit personally. Opposing counsel says something to them and they're like, ah, fuck you.

(: 00:58:29

And they want to fire off some email and why you're not actually being threatened. The threat is not real. It's imagined. And so just knowing that there is such a thing as a serious threat and then there's not, and 99% of what you encounter in your life is not actually a serious threat. And I think that's a useful skill, both in terms of how you interact with opposing counsel and all that, but especially in front of the jury, because I think keeping a level head and not getting rattled in front of the jury is key. And then the last question about what I think is the key to success in the courtroom, consider the jurors is the biggest piece of advice that I have, and it's hard to do when you're starting out because you really have to try a bunch of cases, or at least a handful of cases to get it to see it in action, to really learn the lesson that jurors come into the courtroom, first of all, as human beings. So you want to treat them like any other human being. And second of all, without knowing anything about your case, and the more that you can reorient yourself to that beginner mind and think about if I were a juror, what kind of conduct would I want to see from a lawyer? What kind of evidence would I want to see on a case like this to be persuaded and frame everything you do in the courtroom through the lens of what would I want if I were a juror? I think that's the critical component of it.

Keith Fuicelli (: 01:00:01

Wow, that is fantastic. And this has been so enjoyable to get to chat with you all. I could continue this on and on. I'll have to tell you about the time, Kevin, you mentioned the suitcase of money where that was objected to and defense lawyer gets up red in the face. I was landing punches and it was sustained. Although it is not a violation of the golden rule, it's still somehow improper. Probably improper because it works so well and I was not allowed to do it. So that's a story for another day.

Kevin Cheney (: 01:00:31

Anytime they're objecting, even if it's sustained, I think you gain points. I'm like, I'm a big believer in better to beg for forgiveness than ask for permission. Just go for it. As long as you have a leg to stand on and you're not directly violating any precedent, I'm a big believer and just go for it. Let 'em object. The jury will be like, oh, what are they hiding? So whatever.

Tim Galluzzi (: 01:00:55

Yeah, I agree with that too. And man, Keith, you mentioned at the beginning that you've stolen stuff from us, and Kevin mentioned at least one thing that we've stolen from you, but respect is mutual. We so admire what you're doing at your firm and all the great success that you've had and the techniques that we've stolen from you. So thanks.

Keith Fuicelli (: 01:01:14

Well, I appreciate it a hundred percent. 100% brutal honesty. The whole goal of this podcast is to help make all of the Colorado trial lawyers better at what they do. And I am certain anyone that listened to this podcast today is going to come away with notes, including no bss. I've got notes here of things that I'm going to do in my next trial from this very podcast. So I thank you so much for coming on. I can't wait to hear about all the amazing things that you all continue to do. And I guess as Brian Panish says, right, sharing is caring. So we will all continue to share and all continue to get better. So thank you guys so much and look forward to seeing you in trial again soon.

Tim Galluzzi (: 01:01:52

Awesome. Thanks Keith.

Keith Fuicelli (: 01:01:53

Thanks Keith.

Voiceover (: 01:01:54

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 at www.thectlc.com.