Episode 14

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Published on:

21st Jun 2024

Tim Galluzzi Interviews Kurt Zaner – ‘Nice Guy’ Wins $30M Verdict in Colorado Federal Court, Part 2

Trial is adversarial. “Do what you want until you’re not allowed to do it.”

In part two of this special episode of Colorado Trial Lawyer Connection, host Keith Fuicelli is joined by guest host Tim Galluzzi, founding partner of Cheney Galluzzi & Howard, LLC to interview Kurt Zaner, founding partner of Zaner Harden Law LLP and owner of the largest premises liability verdict in Colorado history. Kurt, Tim, and Keith discuss the trial on Kurt’s fracking explosion case in federal court in Colorado that resulted in a $30M verdict.   

Tune in as the trio discuss Kurt’s approach to doing voir dire in 30 minutes or less, the ‘Do Your Job’ theme Kurt used in his opening statement, his ‘butcher paper’ approach to creating persuasive courtroom visuals when you can’t create the perfect slide ahead of time, and more. 

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☑️ Keith Fuicelli | LinkedIn

☑️ Fuicelli & Lee Injury Lawyers Website

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Episode Snapshot

To see demonstratives Kurt used for opening and closing email Kurt

The information contained in this podcast is not intended to be taken as legal advice. The information provided by Fuicelli & Lee is intended to provide general information regarding comprehensive injury and accident attorney services for clients in the state of Colorado.

Transcript
Keith Fuicelli (:

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 here to continue part two of the Colorado Trial Lawyer Connection Podcast with Kurt Zaner talking about his amazing verdict and co-host Tim Galluzzi. And this part of the podcast, we're going to be talking about the trial. So if you all didn't listen, we did a whole episode about this case and some great pretrial tips, the use of video, deposition clips, discovery, just really great nuts and bolts stuff to help us all in everyday practice. And now we get to hear the fun part, which is the trial. So with that, I will pass that on over to Tim and Kurt.

Tim Galluzi (:

So before we get into actual trial management and nuts and bolts of that witness and exhibit list and all that, there's two things that I think you're head and shoulders above. Most folks in Colorado, if not the country. And one is your kind of theater chops, your acting chops in that aspect that you bring. But the other is your use of visuals and demonstrative and how much that is woven into the narrative that you tell at trial. So when does that start? At what point in litigation are you preparing visuals, meeting with Steven Patway or whoever else is on your team that helps you with that?

Kurt Zaner (:

Yeah, that's a good question. And just to kind of back up a little bit on the visual, it's a relatively new thing for me. The last two trials you saw, Tim, were really the first two trials where we really embraced slides. And this was the first one where we used them so heavily with experts and with witnesses. My first eight figure verdict, the Brian Warberg case, I had no visuals. I mean I think in opening I showed three pictures closing. It was me just talking to them. And so that can work. I think I'm a fairly entertaining person, so I feel like I can capture people's attention. But even then, man, I mean it's tough. When we embraced it in two trials ago, the same juror feedback we spoke about before, that same jurors after the trucking verdict, they said, we love the use of visuals because we all learn differently and we're smart, but some people learn with seeing things and we really appreciated that.

(:

And so this trial, we went all in. I mean we had Dex for all the experts. We had Dex for even some of the leg for both Steve and his wife. We had decks for all the cross, all the experts on the other side. I mean it was just really, really helpful. So that starts, what about a month out from trial? In a perfect world that a week before, mostly the days before and then literally every night. I mean there's only so much time to prepare. It's trial prep that stresses me out the most because I know how I want to present the case and I know how much time it's going to take to get there. And this is the expense of many things. My family focus groups, I don't find time to do focus groups, which I regret. I've done some big data focus groups before but never real live focus groups.

(:

And because I just know I got to cut clips for 17 witnesses, I got to write the crosses, I got to get the opening going. The opening is the most important slides I create because I try and get, first of all, I usually do before the trial starts. And so that's where the first ones I start creating. But for those witnesses on Thursday we've got Dr. Aaron. So Wednesday night I'm working on those slides and then Steven gets me, Steven Patway, the tech guy gets me a draft at 11 o'clock at night, then I fall asleep and then I look at them at five 30 in the morning and we tweak 'em, we tweak 'em, we tweak 'em, and then we send 'em to defense counsel at 7 45. Can we use this in trial today for this witness? So it starts hopefully a couple of weeks before it never ends until the closing trial.

Keith Fuicelli (:

I have a question about that because as you are talking about this, I'm so intrigued, I have not done that. Are they demonstrative exhibits? Are you running a foul of any court deadline for exchanging demonstrative exhibits? Any federal court, you can't show anything sometimes to the jury that hasn't been admitted as an exhibit. So sort of procedurally, how are you, and I can't wait to hear how you're using them actually with witnesses on cross or on direct, but sort of procedurally have you run into headaches convincing the court to do this?

Kurt Zaner (:

I have not. I have not. And I mean a lot of it goes back to what we spoke about in the first hour is getting the defense agreement. And what's interesting dynamic I've witnessed is that the local Denver trial lawyers, they don't like slides, they don't like this. And for example, in this case, they objected to every single one of my slides in opening even pictures of the tanks, pictures of Steve, anything they objected to. And then the defense lawyer came in and he's like from out of state, he's like, that's not reasonable. They want to use slides. They know it's helpful for the jury. So I'm happy when they bring in the hired guns. I know I had a legit trial where I'm going against who appreciates the art of trial and presentation and for this case for opening, the judge was not going to be very good for us.

(:

She was going to be pretty limited. She wasn't going to allow many demonstratives only things that were admitted to evidence. But this defense lawyer took such a hard stand. She's like nothing that I had to be hearing with the court. I'm like, judge, this is ridiculous. I go, how can we not present anything at all? These are the kinds of things that want to present. How do you feel about that judge? But all about being reasonable in front of the judge, in front of the jury. Now the defense is unreasonable and she gives her blessing to a lot of stuff. I don't think she necessarily would've originally in a vacuum, but now she said would allow these kinds of things and that just opened the floodgates for all. I must use 120 slides in opening, I think 200 in closing. I mean I talk fast and I get through a lot of information, but I've never had to disclose them. In the last two where I've been slide heavy have been federal court.

Tim Galluzi (:

Actually that was a cool way that that was resolved. We had set a hearing, oh that wasn't even on the planned pretrial. It was a special hearing just for this Friday before trial starts on Monday and the week before Kurt is talking with the, actually I remember this. We were sitting in your office and you called Kate the defense lawyer on speaker and you're like, so what are we going to do with opens? I got these slides that I want to use. And she's like, well, send me your slides so I can take a look at 'em and And you send her the slides and she's like, yeah, I'm not agreeing to any of these. And that's when you're like, all right, let's get the court on. So then we set a hearing for the next day at noon I want to say. And you went in and how you did it was you gave the judge basically categories, right?

(:

I have slides with stock images that I just pulled from the internet. They're not graphics that I created. It's just a useful stock image of an oil tank or something like that. And the judge was like, okay, yeah, that's fine then these are exhibits that I have a good faith basis are going to come in. And the judge was like, are they stipulated? No. Okay, well that's not coming in. Even if you think you have a good faith basis, that's not enough. It's got to be stipulated. And then she looked at them and was like, what's the holdup on stipulation? And it really put the pressure on them to justify their refusal to stipulate to a lot of this evidence. So then she got them to, in that hearing stipulate to a bunch more exhibits and then the graphics, the argumentative graphics and stuff like that. She didn't let you use, but that was how I remember thinking that it was cool giving her that framework of let's classify each of these slides into these buckets and to decide what bucket you're good with and then we can kind of plug and play from there.

Keith Fuicelli (:

Well I was going to have a follow-up question along that too, Kurt, is because you've tried so many cases with these different councils, are you exchanging opening PowerPoints before? And I had Sean Clage it's office, we were working on a case together, say they never exchanged the words, it's just the images. They argue the words are work product. So I just would love to hear your thoughts on exchanging your opening PowerPoints beforehand so that you're not dealing with objections mid opening.

Kurt Zaner (:

It depends on the trial counsel. We had a 10 and a half million dollars verdict on A-C-R-P-S electrocution case and they had this whole trial team coming in from Stanford, Stanford trial coach, really handsome dude. His name's Todd Theodora, I love Todd. They call him, call me Theo man, call me Theo. He shows up and they got involved. They got brought in like five months before trial and they got a trial continuance. They redid all the discovery. They were very, very good. It was brutal. But he comes into court the first day and he's wearing, I kid you not Denver court, Lululemon pants with a zipper and buttons and a shirt and a tie and a Mr. Rogers sweater and dude, that is his outfit for trial every day

Tim Galluzi (:

Like tight fitting, like show the donk Lululemon fans or

Kurt Zaner (:

Form fitting. And so he was like, Kurt, whatever slides you want are great, it's cool. I only exchange 'em if I take their temperature like Tim described and then whatever the court requires. And when we do exchange them, we mix 'em all up. We take the color out of them so they can't figure out what we're going to do. We do leave the words in. But I remember hearing that from Sean and I think that's a good argument however, but we already had so many arguments, I just wouldn't want to lose anything else. And the way to do with the judge, I think it's worth saying this, you explain to the judge, this is going to help the jury understand a very complex case. It's not a car crash. I need to make the same market car crash if you want to. But they need to understand these concepts and jurors learn differently and the jurors next door to you told me in the last trial I had there that they like these kinds of things, so I just want to do this to help them digest the information. A lot of it. And I think that's a really good linchpin. It's definitely not so I can get millions of dollars from the jury.

(:

That's not why we're doing it.

Tim Galluzi (:

It starts with understanding. It starts with understanding. They can't give you the millions if they don't understand the decks that you use just for lay witnesses like for Steve and his wife and stuff. Do you give those to the opposing counsel ahead of time at all or just play them?

Kurt Zaner (:

Well, most of those were just pictures. So we did have to get them to stipulate to the pictures ahead of time. And then when we call them up the way we do it, I mean it's always clunky getting evidence in. So before we get them to stipulate to say 10 pictures and then before the testimony, your Honor, by stipulation, I'd like to move into evidence X, Y, and Z. And so we can just show them during it. We're not trying to do it while we're telling the story. I don't think there were many. Steve was a unique plaintiff. Maybe we did some liability stuff with him. He had to explain what he did, but we don't usually use slides to show things too much more just pictures with the clients

Tim Galluzi (:

In federal court, I was always very, I'm very grateful to have had this experience. So my client settled the weekend before trial started, which was great. He was not injured at all. The worst treatment that he got was physical therapy and hadn't any treatment in about four years by the time this case actually went to trial. So it was good that he got out, but I was grateful to have been in the case for so long to see because I always got very nervous about federal court, so strict with deadlines and you got to have everything disclosed however many days ahead of time. But my experience of it or my impression of it was that it's actually kind of helpful because it forces you to do all of this work on the front end and have your exhibits ready to go and have your exhibit lists. And the judges tend to not take shit from opposing counsel and they're like, we're not going to stipulate to anything. They're not going to accept that. So I'm curious what your experience now is having done two federal court trials, the workup in terms of witness and exhibit lists and all of that. Do you find that daunting? Do you find that helpful? What was your experience like there?

Kurt Zaner (:

Yeah, I think similar to you, I got to get done. It's annoying and it just starts trial prep a little earlier, which is good because we all work better on a deadline and if we're not doing it we'll leave it to the last minute and then that's really stressful. I mean, going back to trial prep, what I try and do is block out completely the week before trial and then maybe two weeks before trial. So I have nothing else to do on any other case and I can just start dialing in and those days will be very long. I mean long nights of the office, I don't see my kids a lot during trial prep, so it turns into a month away from the, because I just need to get stuff done. It's so hard as a trial lawyer, maybe not for you guys, but for me to kick into that trial gear where I'm working 12, 14 hours a day, that's hard.

(:

And then after trial, I need a month off. I'm fucking exhausted, but I just kick into that gear work those 14 hour days. I've got stuff at home and here are binders everywhere. I try and make it as fun as possible. I watch a few Good men and they got great trial prep scenes in that movie, so I need to be inspired, otherwise I'm just going to be overwhelmed if you guys ever feel that way. It's overwhelmed with the sheer amount of work to do and the pressure. And so I watch movies, I make sure that I'm eating very clean, I stop drinking and I make sure I exercise every single day. And so I need to get into this optimal state. And that's the two weeks out before and then obviously through trial and it's tough because you want to meet with your team and keep getting them prepped.

(:

There's so much work, so much depo clips, examinations, openings, closings, I have to write. It takes tons and tons of time and the worst is putting it off. So at least getting back to the question, photo court kicks that off, give me all your exhibits. I'm like, shit, I got to sift through all the documents now and figure out what I really want. And Sean Claggett has some great advice. He's like, you really should only be showing 10 exhibits, find your 10 best. That's all they're going to be able to digest and understand and you keep going back to them. So of course we had like 200 exhibits. I think we only use the 10 hot ones for the most part,

Tim Galluzi (:

And you got to leave yourself room for improvement, so you don't want to be too good. You want to do everything perfect On this one then what would you do the next time, Keith, you want to hear more on the trial prep process? Is this a good time for that or do you want to come back and circle back to that at the end?

Keith Fuicelli (:

Yeah, well maybe just a little bit of follow up because I'm always curious how you go about sort of digesting the medical records and more about the process of the prep because I have found that there's lots of seminars about trial and there's lots of seminars about depositions, but there's essentially nothing about how do you practically digest all of these medical records so that they're easily accessible when you do it. And I think you covered a lot of that with what you have just said, but this sounds like a very medically complex case. So talk to us a little bit more about your trial preparation process and when it really starts,

Kurt Zaner (:

When you say the words trial prep, I think immediately of getting all my experts prepped, that's like, and the witness is prepped. So I've got my paralegal starting meetings two weeks out with them. One-on-one both liability and damages experts. And I usually have one to two meetings with each of them. I'd say more often. One, I try and create a direct ahead of time, then I meet with them, we go over it. It gets shaped a lot if I have time to do that, that doesn't always happen. Sometimes I just meet with 'em and then I start creating the direct, and when I say direct before I meet with 'em, I don't write a direct. I write the topics, the areas, the things I want to get into. So I need to have at least one or two meetings with each expert in the two weeks leading up the client.

(:

I usually, if you're just getting to know your client for trial, I mean probably in trouble. Now look, you have a lot of clients, you can't get to be all their best friends because they're not going to go to trial. So you definitely ramp it up in those two weeks. And I have them, I meet with 'em the weekend before and two weekends before and I get lunch with 'em like Tim's doing tomorrow. I get dinner with them hopefully if they're local, I've gone to their house even if they're not local. I flew up to Idaho four months before a trial where my client was from in this case and hung out with 'em for a couple days and their friends, and that's all trial prep four or five months out because you got to get to know such a big part of trial prep are those lay witnesses or those groaners as we affectionately call them in Colorado and figure out who's going to tell which little small story about his job or his childhood or what he can't do leisure from leisure perspective or how his marriage has been effective.

(:

So you have to get all those people lined up that takes weeks and notes and figuring out how those puzzle pieces fit together. So it's a lot of prep with the witnesses as far as the medical records and digesting them, it all depends on the case. I had Leah Rotman and Adam Fonta from my firm try the case with me and I mean I did probably 90% of the stuff at trial, but they did a lot of behind the scenes stuff and so I had Leah kind of do all the medical stuff so that when we cross-examined their IME doctor and things just sounded wrong. I relied on her to be able to go find the record that said the opposite. So it's so good to have an extra set of hands at trial, an extra set of eyes and ears because you don't know which medical records are going to become.

(:

I mean sometimes you do, they're really bad ones. You're going to identify those early, but you don't always know where they're going to try and lie about stuff. And so it's good to have someone who's familiar with them enough to get through all of them. And there's different ways to do that, reading them, getting Med Chrons. What I like to do is, I haven't done it lately, but I used to print out all the medical records and go through them before trial. I haven't done it as much lately. Maybe because my cases have been more liability than medical record, the $11,000 case, I knew my medical record, it's pretty good for that one. It was all about the medical records, but these ones, I haven't done it as intently

Keith Fuicelli (:

What I'm hearing. I think that's the difference in the type of cases you're trying. I was talking to a friend of mine, a national friend of mine who was saying, you're getting these verdicts on car crash cases and they're the hardest cases. And it's true if you have a 5,000 thousand dollars car crash case, it's all about the medical records preexisting and that's everything inside and out versus you have someone that is blown off a oil tank or thrown 50 feet in the air and shatters their pelvis and has to be, well, we're not really talking about whether or not the injuries are real or not. So my takeaway from that is it just depends a lot on your case

Kurt Zaner (:

And that's right, my C RRP S cases, I've got some good verdicts on those and those are more, I want to make sure I got all the treatment down and all the signs and the symptoms and what they have and don't have and it's just painstakingly going through them. Psych records coming a lot, painstakingly going through them and just establishing rapport with the treating doctors and the psych doctors early on in the case just to understand, do you want to make a claim for psychological damage and just building rapport, figuring out what you want in the case and then making sure they want to help. We had a bunch of doctors testify treating doctors live Zoom from Idaho and they were awesome because they cared about Steve, but I didn't know if they're going to care about Steve until I spent the time talking to them. And there's an art to that too. It goes back to what I said about Tim, just be likable, man. Everything you do as a human being and you're going to get people who want to help

Tim Galluzi (:

You. I think about that with our reputations in society as personal injury lawyers so often we're a punchline and I feel like we do it to ourselves, but in the way that we advertise sometimes in the way that we interact with people who are involved in our cases and not just opposing counsel, which we talked about earlier, the importance of being kind. But to your point, making sure that our doctors are in the know, telling them what's going on with their patient's case, picking their brain on things, making sure that they know that we care and that we're trying to do the right thing and help us do the right thing. And that's one more person then who will have a good experience with a personal injury lawyer who can say to Fred's and family, well actually they're not all like that. So let's talk about the actual trial. Tell us about jury selection.

Kurt Zaner (:

Oh, we got a whopping 15 minutes for jury selection.

Tim Galluzi (:

What'd you do with all your extra time?

Kurt Zaner (:

I thought it was, I got up there, I'm like, judge, you got 20 minutes right? She's like, no, 15. I was like, so jury selection is great. She had her questionnaires

Tim Galluzi (:

And tell us about the questionnaires. Did the parties get to contribute? Did she actually listen to what the parties suggested?

Kurt Zaner (:

She did? We did. We had a joint statement and then a joint questions we submitted and then people would object kind of the other ones say we're not agreeing the other questions, but she gives a chance to object and file pleadings. And I think what she ended up asking was a fair amount of what we submitted. None of the really fun ones we wanted. Tim, you had some input on these. We used a lot of yours. I don't know if they got astronaut. I don't think

Tim Galluzi (:

Those are the ones that she was like, no, we're not asking these. No. Yeah, my recollection was that she did a pretty good job of trying to include as many of each parties as she could without duplication and then making them as neutral as she could. So I thought that she asked, at least from a topic perspective, pretty much everything that the parties wanted to ask her about what she did was just kind of change this or that on the language.

Kurt Zaner (:

So I'm doing a speech at Trial Lawyers University, Huntington Beach, which is coming up in June and I'm doing one of my talks is how to do voir dire in 30 minutes or less, which is important here in Colorado and a lot of places around the country, if you have 30 minutes or 15 minutes, I believe there's like three things you can do. You can develop rapport, which I remember my trial team professor at University of Florida, the first practice for Diara, again, he yelled at me, he's like, this isn't cocktail our son. You're learning about these people. I'm building relationship with them people, jurors will reward clients and lawyers that they like and they trust whether they know that's what they're doing or they're not. And so I want to be likable. I want establish that rapport. I give my little speech about I was on jury duty once and I didn't want to go.

(:

It was a busy week and it takes about two minutes of my 15 minutes, but I think it's a critical two minutes to come off authentic and humble and kind. I go, good morning everybody. Good morning everybody. Good morning. I mean that is critical, just that being a warm, the fact we have to be told this, but we all know this. Just be nice and engage them. So I give 'em a little speech. So that's one that you can do rapport and then I want to find anyone who's terrible for me. And then the third goal is to get them used to the big numbers I'm going to be asking for and kind of arm 'em a little bit. Those are the three things I think you can really accomplish. When I have 15 minutes or less, I don't spend a lot of time trying to get anybody struck because I need that time to talk to everyone and I need to figure out who the bad people are.

(:

If I spend six minutes on someone that the judge is going to be like, well, can you follow the law? And then I'm like, oh my God, I wasted a third of my voir dire. So I don't do that. I just don't do that. And so I memorize all their names, which is really easy to do. Do it. Memorize three jurors at a time while you're all this extra time. Then go on the next three and the next three and then keep going back and make sure, okay, I got nine memorized. Can I say all their names in the order? And that is like I've had jurors come up to me at the lunch break now in this trial and thank me for memorizing their names. So I cared so much. So do that way easier. Just try it. There's a book called Moonwalking with Cicero, or sorry, Moonwalking with Einstein that talks as a memory champion or a journalist who became a memory champion about how to memorize things.

(:

And it's all about Cicero's methods of how he memorizes big speeches. So memorize their names and I go through how do you feel about the system? What's your brutal honesty? What does that mean to you? Really easy icebreaker. Thank you Nick rally. And then I go through how you feel about the system, if there's lawsuit abuse or not jury empowerment. I get to the idea of money for pain or money for impairment. If we're in Colorado, I don't talk about pain, I just talk about impairment in trial, including in jury selection. I go through that and then I get the last topic I go to. I do burden of proof. And the way I set that up is I'm like, look, there's three different levels of proving of burden of proof in America. Who knows the highest one? We go through beyond a reasonable doubt.

(:

And the reason is because we don't take people's liberty away if they're not guilty. That's a really big deal here. We're just talking about money damages. I've already talked about money damages up until then and I used something from Dan Ambrose. I'm like, look, who's comfortable with the idea of money being the idea of justice? I mean, we can't get perfect justice. We can't take the world and spin it on Anxi and go backwards in time and put people back together. We can't do that. We're not going to do what they used to do ni for an eye or take someone's leg off who took someone else's leg off. That would just be barbaric. We can't have that kind of justice. The best we can have is this idea of money for justice. And it's a concept people don't like, understandably, it's uncomfortable to talk about, but it's all we have.

(:

It's the only way to compensate someone and how do you feel about that? So we go through that, which I think is really a disarming way to talk about it. Then we go to burden of proof, and I say three levels. We are not taking away people's liberty, we're just awarding money. So there's a second level. No one ever talks about this clear and convincing evidence. And this means it's kind of like an anchoring thing. I'm showing all these different higher levels of proof. It just means something has to be highly probable or reasonably certain for it to be meet clear and convincing levels. And that just seems like, okay, that's not too heavy. Ours is lower than that. It's a lot of David Ball stuff, ours. Is it just what we say? More likely true than not. This is really how the explosion happened and Steve really suffering this amount of damages.

(:

We're going to prove it by a whole lot more than that, but that's all we have to do. And some people think that's too easy. That's not a heavy enough burden. There's millions of dollars at stake. Other people say, well, you're not taking away someone's life liberty, so it's okay. So we go through that and then we get to the money stuff. And the way I like to do the money stuff is can I anchor it again? I go, look, let's talk about something uncomfortable money. And I start bringing down examples of some people have discomfort with awarding money, but different levels. So for example, if there was like IBM suing Apple over a software infringement for 15 billion for blockbuster software. So most people would be okay with that. And then they have like, well, maybe there's a guy suing Merck for stealing his drug patent and that guy wants 10 billion.

(:

I'm using big numbers, $10 billion, who has any level of discomfort? Somebody with discomfort with that. So I'm breaking it down from my company to company, individual to company. If I have a corporate defendant, I leave it there. Then I get down into, I do an example like the Mona Lisa example. I say, well look, let's say that mon is priceless. It's worth $800 million in some company. And I was just thinking, I hear my wife's voice in my head, don't tell them all your secrets. The defense lawyer are going to listen to this and they're going to object to it voir dire. And literally in this case, so Derek McKay, the guy, I like the defense lawyer. He told me he went and listened to everything he could find about me prior to trial so he can learn the tricks. So I'm a little reluctant to go too far into it, but it's just safe to say I do Simon Mona Lisa's stuff and I kind of patterned the facts after the facts.

(:

In this case, the way they shipped it was in a cardboard box with a bunch of holes in it that they didn't inspect to make sure that it was safe. And I said, look, here's my brutal honesty in this case I asked who would feel uncomfortable awarding $800 million for the Mona Lisa if it was proven that this negligence was clear? And I go, in this case, here's my brutal honesty, we're going to be asking for $40 million. And that's a lot of money. And no one's heard a word yet about the evidence. You shouldn't feel one way or the other about it, but some people do. And who on this jury feels like even if all the evidence in the world was provided that those were the damages and they were caused by the negligence of the defendant, they just couldn't award that kind of money. They feel uncomfortable. And who else thinks it'd be okay to do that if all the evidence was there and now they're ready for it and then they don't bat it on closing? I think different schools of thought. You've got to get the money out in jury selection. Quick

Keith Fuicelli (:

Follow up question on that is when you're ENC closing, do you reference the Mona Lisa when you're talking about human beings being the most valuable to kind of make it full circle, that's just brilliant.

Kurt Zaner (:

No, I talk about munches the scream. That's just a painting of someone's agony. But I like the idea of bringing it back to jury selection, but I do bring it up. I go in closing, go listen in jury selection, I told you we'd be asking for $40 million and some of you wanted to punch me in the face. I've had jurors like, no,

Tim Galluzi (:

I still do, still do.

Kurt Zaner (:

And I'm like, that's a ton of money. But now you've sat in those seats for two weeks and only you eight folks can appreciate why that amount of money is necessary to compensate here. So you bring it all back.

Tim Galluzi (:

You mentioned that you gave them the number, told them on the front end that you were going to ask for 40 million. Was the defense okay with that or did they ever try to prevent you from saying a specific number?

Kurt Zaner (:

They're still trying to prevent it. It's part of promotions right now. And for the Colorado listeners, so Keith, this is a topic you're probably sensitive to is that there's an order from Judge Wong who was our judge in this case, where if the plaintiff doesn't disclose the amount of pain and suffering and impairment damages that they're going to ask for prior to trial through disclosures, they can't ask for it. We didn't do that. We didn't disclose in our disclosures by that case. It's all about the facts. The defendant had filed interrogatories asking how much, and then they had moved to compel and the plaintiff still refused to tell 'em how much they would ask for, and they got prevented from asking for amounts in closing at trial. The judge overruled that objection, but of course I was nervous. And when they made the objection the morning of trial out of state lawyer and he's like, they haven't disclosed, I'll disclose it.

(:

Now I'm asking for $45 million. Here you go. What's the prejudice? And then the guy read the case. I wasn't aware of it. I mean I kind of remembered it, but of course I wasn't aware of it. I think in Colorado for practice pointers just discloses a huge number and then you can work backwards from it. I mean, you got a car crash case, we're asking $50 million, who cares? You don't want to not have something out there. And I think that cures any prejudice. If you only ask for a million, fine, you're not bound by it.

Tim Galluzi (:

You mentioned the facts of any case are always what drive it. And it was so funny to me that just the way that this was presented, because he sits on it until the morning of trial, we were about to call the jury and we've had two pretrial conferences and Derek McKay had not been at any of them. Local counsel is just at them. And so when he makes this argument, you can just see the look on Judge Wong's face, are you seriously doing this shit right now? She was like, Mr. McKay, we've had two pretrial conferences. I'm really disappointed that you're bringing this up on the morning of trial. Then he's like, he got his three piece suit and all. And he's like, well, you're honor, I have this case. I'm sure you're familiar, it's your own case. And she's like, no, I'm not. I decide a lot of cases. You tell me what it says, bring me a copy. And she was just so annoyed about the way that the whole thing was presented that you could almost tell she was looking for a way to distinguish whatever her prior rationale was, and Kurt gave it to her. So how were you happy with the jury after jury selection? Loved

Kurt Zaner (:

It. I loved it. I'm like, we either have the best jury in the world or the best liars in the world because they're amazing. No one batted an eye at 40 million. No one batted an eye. I couldn't believe it, right, Tim? I right. We were there. Yeah,

Tim Galluzi (:

Yeah, you were sending me messages. Is this happening? Is this the best jury? There's this one lady sitting in the front row who, she was totally moved by the whole thing. By the time closings were happening, she's sobbing about what had happened to Steve. You could tell that she was just chomping at the bit to deliver justice for him. But during Kurtz vo dire, you're like watching this woman's body language. And boy was she a fan of Kurtz er. And I was like, if this lady makes it on your jury, you're going to be in good shape. And sure enough, she sat front row.

Kurt Zaner (:

It was tough, a good lesson. We had a petroleum engineer on the jury and he was good for us for everything damages. He was amazing. He

Tim Galluzi (:

Had a nephew who was an amputee,

Kurt Zaner (:

Right? He was great, but he was a petroleum engineer and it would've been a jury of one. And so he was the last person we struck. We hope they would strike him. We wait till the end. And people on my team wanted to keep him. I was like, we have to get rid of him. The causation stuff was difficult. I didn't want the jury understanding causation. I wanted them just to know about the bad acts of the defendant. So we struck him. I think it was a great,

Keith Fuicelli (:

I mean, talk about a leader in the jury room. I will tell you my defense verdict on my CRPS case that we went to trial on where I asked for 16 million and got zero, that was nice. I couldn't go that high. So it was a police officer on there and it was, I forgot about the leader versus follower paradigm. And so going back to that jury, you're just referencing clearly a leader and just too risky to keep on. Could be great, but could not be great. So that's wonderful.

Tim Galluzi (:

Yeah, I just got, my last trial actually was a, well, pretty much a defense verdict. I got $1,500 and I had left on a jury of six. I had three MDs on the jury, and I left them all because it happened to me in one other trial, an MD made it on the jury. Dr. Heisey testified was our doc in that trial. And she loved him, hated the insurance. Doc was telling the jurors how these insurance doctors are just not real doctors, was great, was a great juror for us. And I just wasn't appreciating the differences. These were older doctors, two of them were retired and we were presenting a lot of stem cell, PRP kind of medicine that they were just very skeptical of. And so I was like, oh, I'm going to leave these doctors on and get this awesome verdict. And I left these doctors on and they kicked my teeth in. But that's how it happens.

Kurt Zaner (:

You don't want anyone knowing too much or being too much of a leader, too much like life experience. That's too related.

Tim Galluzi (:

And it's one of those things that you know that, and then for whatever reason you convince yourself to not follow the advice. So now I'll never again, never again will that happen.

Kurt Zaner (:

Trust your gut man with this engineer. I wanted him up my gut. I was like, no, trust that gut. Alright,

Tim Galluzi (:

So then opening statement. How did you structure it? Did you use demonstratives and did you ask for a specific number in damages, I'm guessing yes, since you told him and

Kurt Zaner (:

Yeah. Yes, to all those things. The way I structure at my openings, we said earlier about 120 slides, a hundred slides, I get up and I just talk for a minute. Can I reintroduce my client? Tell 'em I use some Carl Bettinger stuff. 12 heroes, one voice, great book. They're nodding their heads. Keith and Tim, love Carl Bader's book. I'm nervous but also excited because jury's waited. Steve's waited a thousand days, three years for this day to come where we can tell our story. So I do some of that stuff. And then I just start with the theme. The theme I've been using for the last three trials is because these are all happening on work spikes is do your job, do your job. The one job the BHS had was to deliver a vapor tight tank. That was their only job. Steve had his job to do to get the oil flowing.

(:

My job is for all of you to guide you along this trial so you can digest the evidence. Your job is, you need to decide these three things. So it works in so many ways. And even the non parties, his employer was doing their job, but they had many jobs to do unlike BHS. So yes, they should be checking the tanks when they arrive, but they got 19 other things they got to do. Those are all their jobs. So I love the do your job theme. So I set up the theme. I tell 'em the overall picture of the case. This was a tough one because I didn't know how much to explain right away. I mean, it's really complex. And I gave you guys that an hour ago we had the animations that were like three minutes long. It's a lot more complex. This, there's this whole idea of when it becomes a flammable mixture because when the tanks are delivered, they're full of air and then you start pumping methane in, well, it's not always flammable.

(:

There's only a very small range when there's seven to 17% methane in there where this thing can ignite. It's kind of like your gas grill. Once you turn it on and you can't light it, you don't have enough gas. But then if you leave the gas on before trying to light it for too long, it also isn't going to light because it's not in the flammable mixture of the Goldilocks range. So I was like, do I explain the whole thing? Where do I go? And I was like, you know what? We're going to win this case if we focus on the defendant's bad behavior. So before even explaining what happened, other than saying there was an explosion, we just focused on that for the first 15 minutes, all the things they're supposed to do to inspect these tanks and all the ways they failed. And I was shut down in using deposition clips of 30 B six in this trial, an opening statement.

(:

I was not allowed to do that. But what I would do instead is I just put up the CEO his picture. I was like, and what you're going to hear from Mr. Coates and let get this right. And I pick up a piece of paper, I'm reading it, and I was like, he's going to say that if there's holes in the tanks that can lead to combustion, or maybe I even do. And I asked him, what's the problem if you have holes in the tanks? Well, it can lead to combustion, whatever you want to do. So still, Pete does parts in your opening, you just can't play the clip, but you can maybe make it more dramatic in ways, don't oversell it, and then be proven a liar when you play that clip later. So I did that for the clips. So I go through all the bad behavior, then I go through what we did to figure it out, and I kind of take 'em on the same journey.

(:

We hired the two smartest people we could find, and then we go through this whole flammable mixture thing and holes equals air equals explosion and just drove that home. And then I go through the incident after all that, and this is what happened. Boom. And then I go briefly very briefly through my client's injuries. I didn't have time to do the whole doctor dialogue I spoke about earlier. I just went through it very because there was so much talk about, I don't like to talk about any kind of noneconomic or impairment stuff. I just go through pretty much the injuries. And it may be a picture of what Steve was like before. I do put up some pictures now of him and his kids sailing, snowboarding, hiking, and just talk about things that were taken from him briefly. I buy the David Ball stuff. I don't go too much into it. No sob stories, no violin, just the injuries and some of what he's lost, but not much. And then I go through the defenses and the defense experts and frame all that.

Tim Galluzi (:

It was really cool getting to watch you workshop your slides with Steven the week before. And for anybody listening that thinks that you could do it too, you could do it too. And just like you were saying earlier on, some of it, you just got to trust your gut. And you don't need to be a graphic designer to know. I don't think the average person is going to understand this slide. And what's cool about Steven is how open he was to that kind of feedback. He had no kind of pride of authorship over it. He was like, if you want to burn it down and have you rebuild it, he was down to do that. It's

Kurt Zaner (:

A really cool creative process. I mean, when you're in the moment, you're like, why would you create a slide like this? Didn't make any sense. And you're like, do this. And it comes back and it's not like I told you to do this, but sitting back here with our big work, I'm like, what a fun creative process. But it is cool. Steven's great, but it's like the tech guys aren't going to create a canvas. And you got to have the idea of how you want to communicate the information. I mean, there's a big slide we used throughout trial where we talked about purging. You have to purge all that air out. And so we had some wonderful slides where we put pictures of these tanks and then big gas clouds that would say, this is how much gas we put in to purge out what was in the tank. And we'd show it six times bigger this cloud, six times bigger than the tank. And so it was easy to see that six times the air in the tank, this big cloud of six times, that would be enough to push it out. And so just things like that to communicate these complex purging ideas. I mean, Tim, you came in, I'm guessing, took you all to wrap your head around liability. The jury wasn't going to get it.

Tim Galluzi (:

And to be absolutely clear to anybody listening, when Kurt brought me in, he was like, look, I really need you to focus on Richie's damages. You can essentially ride my coattails on liability. We've already hired all the experts. You don't have to share on those costs. We'll do all that. Just come in and tell Richie's damages story. And boy did I ride Kurt's coattails on the liability. I mean, he did all of that. So it really was a month before that. I'm like, alright, wait, now what? There's an explosion.

Kurt Zaner (:

But it was so helpful having you come in with a fresh set of eyes. I'm like, explain things to you. I'm like, do you get it? You're like, no. I'm like, well, I'm doing a bad job explaining it then. You're a good focus group of one, which was great,

Tim Galluzi (:

The crossing. So I want to talk about your demonstratives during your exams. And we've already heard about some of the graphics that you used in the animations, and I know that you met with your experts ahead of time to show them those and go through 'em and all that. But I really want to learn about your cross examinations and the demonstratives that you created during cross-examinations. It wasn't just glitz and glamor and some cool shit that Steven made. You were just using handwriting on a notepad, old school style for some of it and it was really, really effective. So can you just talk about your process for demonstratives during cross-examinations?

Kurt Zaner (:

Yeah, and you're right, it's easy to create a slide deck. So think about it this way. So for our directs, a lot of what our experts are doing in direct are diffusing what the defense is going to say. And so we're able to take those slides that we use, kind of the one I just talked about that related to purging, where we show how much gas we're pumping into these tanks to get rid of the oxygen. And you can use those in the cross examination of the competing or ancillary expert, but sometimes you just can't create the perfect slide ahead of time. And I remember my very first trial, the Al Hill one that Keith mentioned, it was one of my first trials civil trials, and I wanted to write on the butcher paper and the witness said something, I'd write it down. And I'll never forget, the judge yelled at me. He's like, you can't do

Tim Galluzi (:

That.

Kurt Zaner (:

What do you mean you can't do that? He's like, you're just trying to tell the jury what's important. It's like, that's absolutely right. Whatcha

Tim Galluzi (:

You trying to win this case, Mr. Zaner?

Kurt Zaner (:

You can't be persuasive up there. So I was afraid to use butcher paper. I brought it back this trial, and I just started drawing things up there. And sometimes with our experts, I'll bring the butcher paper out to the witness stand and have 'em get up and have 'em draw stuff. I didn't like the way our manager jury was drawing something. So I just started drawing and I draw whole picture. And then finally we got an objection. Objection, your honor. Counsel's testifying. I was, in my mind, it took you four days to object to a question of mine. It was like no holds barred in this thing. I must've gotten four objections the whole time. This was like the dream trial. I was allowed to ask questions any way I wanted to. I mean, my questions were two minutes long. Sometimes I'm running around the courtroom pointing at the defense lawyers, and I've back to Steve's table. I'm like, and they told you, Mr. Straw, I walk over to Steve and I walk over to defense. No objections. Here's everything. But they did object to me drawing the whole picture up there, I guess. I know. Well,

Keith Fuicelli (:

I want to make a comment on that because I watched, speaking of Mark Lanier, I watched his talc trial on CVN. And what he does is he uses the Elmo and he is a master at writing out. That is all that I saw him do, and it was so effective. So I've been empowered hearing you do that with butcher block paper. It's just so effective seeing the point that you're making. That is awesome.

Kurt Zaner (:

So great. And I'm going to get a point before we go back to that. Don't forget, this is an adversarial system. They have to object to things for you not to be able to do it. And maybe they're taking, maybe they're asleep at the wheel, maybe they're taking a strategic decision to not object and look like they're afraid of what you're going to say. But see how far you can go. I mean, this judge, let us try our case. She didn't do Ponte objections from the bench, which was very nice. And she waited for the other side to object. And when they objected, they were usually sustained, but they didn't object often. And so I kept seeing how big of a leash I could take out until I realized there was no leash and they weren't going to object. And so I tried this case, I think the excess insurance adjuster I heard to the degree he was there the whole time, he was complaining to the lawyers.

(:

He's like, why isn't anyone objecting to, where's the appellate record? You're letting this follower do whatever he wants. And so don't forget, it's adversarial. Do what you want until you're not allowed to do it. But then back to the butcher paper. So I remember their petroleum engineer was coming up a week two, and he testified in the morning and he was pretty good. Tim, I don't think you were there for that one, by the way. Yeah, Tim settled on the EVA trial. So he wasn't there for all of it. Apparently there's other cases to work on. And the guy was really good and everyone at lunchtime, the referring attorney flew in. His name's Seth, he's great. Watched the whole trial and gave me tips. He was part of our trial team. So a bunch of people, and everyone's like, Zaner, you got to do this.

(:

They're doing all this math I got to do. They said, because of the purging and this, I'm like, I got it. Just give me a little space. I think it's going to work. I think it's going to work. So I had all my video clips all set up, my whole cross going. And what I wanted to do was use butcher paper because he was great for me on the non-party, on Steve's employer when they did anything wrong, because he never really opinions on those. He didn't have opinions, they didn't do anything wrong, but he didn't have any opinions that they didn't do anything. They did anything wrong. Right. There's a difference between saying affirmatively, I looked at this and they didn't do something wrong, as opposed to, I have no opinion on whether they did something wrong. They're very different, but they're kind of the same.

(:

Right? And you can make the second one sound like the first one. And so I used the butcher paper and I was like, now you don't have any opinions at all that skylines checking of the tanks had anything to do with this explosion. Well, that's right. So I write it out, no skyline explosion. And you have no opinion that Skyline should have checked the tanks in any different way. Well, no, that's right. No opinion on that. No opinion that they did anything wrong that they didn't check. And we had all these things, and I had this very early on before the cross got hostile. Just like some layups, some easy stuff. He's giving it to me. And then we get into his controversial opinions and controversial stuff later, and he wants to start implicating skyline. I'm like, oh, no, no, no. Let's go back to the big board, Mr.

(:

So-and-So you told me right here, I wrote it down. You told me this. Did I write it down correctly? You did. You said no opinion that they did anything wrong. So how can you say that? And I did just like that. And so you have this butcher paper. It's not just jury. Look at this. It's to use as a prop later in cross-examination. It's a prop to use Later in closing argument, remember what the expert said? He said that skyline, they're telling you to put 50% blame on Skyline. Their own expert. The only person qualified to render these kinds of opinions. On the defense side is their petroleum engineer. And what did he say? No opinion that Skyline caused the explosion. So that's just argument from the lawyer who is not a petroleum engineer who didn't evaluate this like their engineer did.

Tim Galluzi (:

I saw the demonstrative when you used it in close and it really was so powerful because then you were like, they could have this lawyer, they could have asked him to that, and he's already given opinions like, what's one more? And they chose not to, and now they're going to try to sit here and say that that's what you should do. It was really good

Kurt Zaner (:

During cross-examination of this witness, it was so funny. So he had an opinion that BHS had done nothing wrong in their inspection of the tanks. And so I started playing for him 30 B six clips in the cross-examination I was allowed to do and pointed out to him all the things that they didn't do for the inspection wise. And I go clip after clip. Oh, we didn't do water tests, we didn't do vapor tests. I go, Mr. Smith, now that you've seen that they didn't do these things, are you telling this jury that their inspection process was adequate in light of what we just went through? And he's like, well, seeing those things, no, I don't believe it was what

Tim Galluzi (:

He reversed himself. Are you kidding me? Yes. Oh my gosh. Yeah. That's crazy. Yes.

Kurt Zaner (:

No, I put a lot of clips from him before so he maybe didn't know what I had in my pocket. But then, and also on direct, they were like, it was like a three hour direct and they had asked a bunch of questions about purging and whether they purged the right way. I was purging stuff and it was very confusing. I get up there, I go, I go, isn't it true Mr. Smith that you don't? And by the way, a bunch of lawyers are like, you don't want to say that. Isn't it true? I like saying that. I don't mind using those taglines. I think sometimes it is helpful. But isn't it true that you don't actually have an opinion that the purging was done unsuccessfully and your opinion is that the purging didn't cause the explosion? Do I have that right? He's like, that's right. I was like, well then why did you waste an hour and a half of the jury's time talking about purging? If you don't think it's relevant to this case? No objection. It's because it's what the lawyer is answering the questions. The lawyer wanted to ask me about it. I don't know. It was so much fun. So have fun on Cross-examination. Use your slides that work and use the butcher paper. It was really effective.

Tim Galluzi (:

I knew that the crosses were good because when I came back for closing, at least three people came up to me and they were like, oh my God, he is this cross examination

Kurt Zaner (:

A lot of fun. You got to have fun in trial, you got to have fun.

Tim Galluzi (:

So then closing argument structure, how'd you structure it? What demonstratives did you use? And then how did you frame and ask for your damages?

Kurt Zaner (:

So before we get to that, I think it'd be good to talk a little bit about witness order. I think scheduling is what gives me the most anxiety for trial for you guys. Like I assess and I'm anxious over, I want it to be perfect. And I mean there's the availability of doctors, but just the perfect order where everyone's there for the right amount of time and everyone gets in. Oh, I just hate it. I hate it. It always turns out perfectly, but leading up is so hard. I always like, and there's real different schools of thought on this and my friend Pat Sal who has much bigger verdicts than me and he always gets them a week after mine. I think I do something good. I got that 16 million, he got a 50 million, I got this 30 million. He's got a 75 million. I mean he's great.

(:

He's in Cook County though I'd love to try a case in Cook County. That's my only defense. So Pat's amazing, but him and my buddy Mark Mandell is dad's Zach Mende, his dad, mark Mendel. It does case framing. Very famous trial lawyer. They are now calling their expert first because they think people are paying attention, they can educate them and I get that, but I call the defendants first. That's so important for me. My trial strategy is to make them out to be the bad guys as quickly as possible. So the jury makes that decision early on that they don't like them and I rely heavily on my use of clips to impeach them to show that they're lying about stuff. So the jury immediately distrust them. So the very first person I called was one other two 30 B six witnesses, the vice president, the guy who was sitting there the whole time I call him.

(:

Then I call the manager that was in charge of maintaining the tanks. Then I start sprinkling in after I get one or two defense witnesses. I like to start sprinkling in some medical witnesses on our side, no lay witnesses, but I want to remind them why they're there. I don't want to wait until Thursday for them to remember how messed up Steve is. And it's easy when you have a catastrophic case, but even if it's not a catastrophic case, you want to start with the bad stuff and then sprinkle in a doctor here, a doctor there back to them and you build liability, build liability mainly through their witnesses if you can. Then I bring into my liability experts on day three or four when they've heard all the testimony. And this is an important point. They've heard all the defendant's testimony already that the expert's going to talk about.

(:

I think it's way more powerful than the expert coming in first and saying, well, I reviewed all the depo transcripts and I learned these things so I concluded X, Y or Z. I think it's better for them to hear it out of the horse's mouths first and then the experts come and say, yeah, because they said this and that, this is what I've concluded on negligence or standard of care. So I'd like to save them till later on. And then once I've gone through all the liability stuff and sprinkled in the medical experts, then I turn to damages and then I start bringing lay witnesses are being folded in mid trial to late trial. I saved my client for near the end of trial here. We did Steve on Friday on week one. I wanted to end with him on Friday and he's a really powerful testimony.

(:

I ended up getting a little emotional and crying a little bit. He started crying a little bit, totally unexpected, asked him if it makes sense even after he'd give me all this sad testimony, but what he can't do with his children and all his dreams are shattered. I was like, what's left man? I don't know man. I dunno, what's worth going on for? I mean it was just like, oh, that wasn't planned. You just got to be a human being. And because you love your clients and maybe you don't love your clients, but you know them well enough, it allows that emotion to bubble up. I mean there were parts where we tried to create emotion, but then the emotion just comes because of your relationship, the parts you don't expect. And we wanted to end on that on Friday. We wanted the jury to just sit with that for the weekend.

(:

So the whole first week it's like bad behavior, bad behavior, bad behavior, the defendants and then oh my God, look what happened to Steve. And then on Monday and Tuesday the following week, then I start bringing in the economist and the functional capacity evaluator, all these things. So now they're ready to help Steve out. And so week number two, after that they're like, now how do we do it? Well, give us the number. But usually I use the client at the very end. But here, because you had that weekend break in the middle, I thought it was way helpful.

Tim Galluzi (:

No, that's good advice. We save our clients for the end as well to give them the halo effect of having the jury here, all this good stuff about 'em. And then the jury is so much more forgiving of their little weird quirks or bad answer on this or that if they already have this good sense of this person by the time they even take the stand. Yeah, I'm really glad that you took us to the sequencing of evidence. Thank you for closing. How did you structure it and then how did you frame and do your damages ask?

Kurt Zaner (:

I learned this from Mark Lanier. He's got great trial academy. Have you guys been to that one? I think Keith has you,

Tim Galluzi (:

But just the second time it's been suggested to me or brought up to me in the last 30 days. So I'm taking that as a sign that I should go.

Kurt Zaner (:

It's really good. She's Mark for two days and some of it is great, some of it's like, ah. But he's like an amazing, amazingly entertaining and a unique individual. He's a preacher too. You can listen to his podcast. Preaching and faith is a big part of my life with my kids and the trial work that I do. I mean I find myself closest to God when I'm trying cases so worn down, I just need his support. And I always think of Philippians four 13, I can do all things through Christ who strengthens me. So my faith is becoming more of a public part of my life and I love wearing it on my sleeve and Mark is a big part of his life as well. So I really connected with that at his and he built a church on his property, like a recreation of some old Byzantine Roman church from Turkey.

(:

It's so cool. So anyway, you got to go. So you take your opening slides and you kind of replay them for closing. And that is a couple things on the liability stuff. It gives you credibility. Look, I said all these things would come in and they all did. Look, I'm telling you the truth. And so that's why the opening slides are so critical. Even if I was going to be prevented from using the opening slides, the exercise of having to create them before trial was so helpful for congealing the case in my mind and the whole flow of it and the documents and all that stuff. So I replay, I do pretty much all the same liability stuff from opening. I sprinkle in some more aggressive that are more argumentative that I knew I probably couldn't get 'em for opening. But then it's the same kind of, here's all the things I did wrong and those remind them because they haven't heard this stuff.

(:

It's been all damages for a while and expert, they're experts. So I go through all the liability stuff and I try to make that about half of the closing argument, maybe a third and say, look, this is the testimony came in as and I go through all the things they did wrong. Then I go through all their defenses of the non parties and Steve and I diffuse all of that and then I get to damages and I like to have a third to a half on damages because different theories, you don't need to do liability if you haven't won them by then, then you've lost. So you have to focus on damages. I don't know, I always feel like I have to do liability again. I know you guys feel about that.

Tim Galluzi (:

I think you're in a case like this too, where you do have just get 'em fired up. So before you give 'em the damages, ask remind them of all this crap that the defense did. I could see being useful in a case like this.

Kurt Zaner (:

So they go through damages and I walk them through who Steve was before. There were a lot of slides on this one. And if anybody wants the slides or wants to see stuff, I don't dunno if the email can be popped up or whatever, but my email is KZ at zh zaner harden zh law.com, kz@zhlaw.com. I'm happy. We've been talking a lot about s I'm happy to send you guys what I used for opening and closing here. But then I walked through the client's life and I walked through what it was like before with pictures. I mean we use so many pictures in this trial and it seems like such an obvious point, but I haven't always used as many pictures. And by using these pictures with the directs of him and his wife, and then that's how you tell their story. Then you have all these great pictures for closing.

(:

So I go through all that. I go through what it was before for a little bit, and then I talk about all the losses he has. I go through the explosion, I go through the losses and then I start talking about economic damages and I weave in their experts diffusing all their stuff there. That's easy stuff. And I talk about money for pain and I asked only for a million dollars and this was the big failure here. Kept me up at night, worked before, not this one. And then I go into, I go look, but listen, we're only asking for a million dollars in pain and suffering because Steve doesn't even have any pain meds in his life care plan because it's not about pain for him. This is a case about impairment, right? Steve doesn't want money for pain. All he wants is $1 million and this is important and not a penny less.

(:

And if I could do this over, I would make the slides go black. I would slow down further and I'd say, you have to listen to this part. This is all we are claiming. And it's maybe the most important thing you're going to hear in this entire closing. So if you remember anything, remember this and write this down. All Steve is asking for is a million dollars. Please do not give him any more. Any more than this. It would be an injustice because this case isn't about pain, it's about impairment. That's you heard from this doctor and that doctor because we get the doctors to talk about impairment. I have 'em talk about impairment, definitions, and then we put those definitions up in closing. This is what Dr. Berliner said impairment means. This is what Dr. Leach said impairment means. And they found me on these slides and the judge is like, you can't have it as a jury instruction, but you can put up as a slide the definition for impairment that are really good definitions.

(:

And then I talk about, in this case, I broke it into impairment. Well, I do anchoring to the Nick Rally like fair trade value Kentucky Derby horse, what's that worth? They objected in this trial. It's only happened once before. There's no evidence of how much a conducted derby racehorse is going to cost. I was like, your honor, it's closing argument. I go, there should be some leeway and what I'm allowed to argue. Plus it's been the common knowledge of jurors overruled. And so I talk about screen paintings and just fair trade value and like look, we value celebrities and sports stars and horses, but not people go through all that. We broke down impairment. I know we're running you short on time to mind, body and soul. I talked about how his mind was injured and all the things you couldn't do. His body. I went through all the medical illustrations and his soul losing his identity as a father and a husband.

(:

He now felt like no longer husband, but one of his wive's kids, she had to become a caretaker and all that stuff. And that's when I did the, I'm sorry, by going and went through a lot of the injuries. And then what's worth mentioning before we're out of time, is the briefcase close? I usually do it in closing. I ran out of time. And so I had to save it for rebuttal, which made my rebuttal points a little shorter. But it was magical doing it in rebuttal because when it finished, man, it was just like silent. And would Steve take that? Here you go, Mr. Straw, here's your money. And he put the briefcase on the, and this is when you look at your client, look at the briefcase close. We don't have time to talk about today. Do it to your client. Don't look at anybody else.

(:

Look at your client the whole time. Don't break the fourth wall. You put that briefcase down and say nobody would take it. Your client is probably in tears. You're probably holding back a motion. And then you sit down and it's just silence. There's no defense lawyer standing up to talk about the liability. And I'm looking at Steve and Steve's looking at me. I'm fighting back tears. He's fighting back tears and the jury's just watching it all. And they're like, you're dismissed. And they go and they see us try to hold it back and the real tears, it was just so powerful. Tim, am I right?

Tim Galluzi (:

Oh yeah, I actually did not know that. That was not intentional. I thought that you were saving it for rebuttal on purpose because it was so perfect. I think you had five minutes for rebuttal and you took two minutes to knock out this or that point about liability or whatever. And then you just shifted into that. And there too, again, the dialogue of looking at your client and engaging with them directly. It just is people in the courtroom are bearing witness to this moment that you're having with your client rather than having you just speaking to them and having your client kind of be this afterthought. It's like a moment for Kurt and Steve that we all get to see. So yeah, it was really cool. And I

Keith Fuicelli (:

Have a quick question on, you mentioned that you had your experts to impairment, sort of practical question. Are you having that include that in their expert reports? Are you disclosing how your experts are going to define impairment to the defense prior to trial?

Kurt Zaner (:

If I'm doing a good job as a lawyer, yes. Sometimes we forget. I think the smartest thing to do is not the report, put it in the disclosure, the A two disclosure. No one ever reads that we sneak so much into those and that we don't want them to highlight. This wasn't his report, your Honor. It wasn't a disclosure. It's right here. And they're like, oh, and by the way, I learned something new in federal court. If you're going to have a treating expert, a treating doctor, talk about future care or prognosis, you must create an additional expert report for that additional disclosure and disclose that FYI.

Keith Fuicelli (:

And for our listeners too, difference in state court with retained versus non retained experts. I think if it's a retained expert, I would not rely upon putting it in the body of the A two disclosure, but if it is a non retained treating doctor, I'm with you, Kurt, all day long, we stick all kinds of stuff. We actually have meetings with our staff when we're doing expert disclosures to put in items in the body, our stock expert disclosures, our pages long and inside there you could have dr. So-and-so will define impairment as X. So I love that piece of advice.

Tim Galluzi (:

Just a couple of quick wrap up. Can you tell us about final costs? How much all in did you spend on this case?

Kurt Zaner (:

I'm going to ballpark it at about half a million.

Tim Galluzi (:

And then tell us about Steve and his family. How did they feel about the verdict? Do they have plans for any of the money? Where do you see it going in terms of actually collecting on this judgment? How's all that going to work?

Kurt Zaner (:

Yeah, so we want to appeal to the 10th circuit to try and restore that 14, I mean probably like 18 million with interest. So we have every intention of moving forward on that. The settlement negotiations have been lame so far. They have no good appellate issues. Their trial stuff was just all discretionary abuse of discretion. So it's a really weak appellate case. There's a big fight with the excess carriers. They're not putting up any extra money really from the policy amounts. So working on a bad faith assignment, all sorts of things happening there. It's actually been more challenging than it had in any other case. Usually the excess insurers just put up the amount and the bond or they offer to pay us the whole judgment. And so we haven't had either of that happen so far. Steve is doing great. He's really hurt, man. And now that trial's over, it's kind of like hitting him and if we can win that appeal or whatever happens, he'll probably work a little less so he can spend this time with his kids while they're young and try and find a way to do that kind of stuff.

(:

He got some surgeries planned. He's got some more treatment planned to try and help with his pelvis stuff and his low back, but they're up in Idaho and they're just Steve's like me. We just won this judgment and you were there, Tim, and it's going to be 18 and a half million. It kind of felt like a loss, man. We weren't celebrating because the jury is like 15 million in non-economic damages and we're just like, Steve's like is set the right category. I was like, no, no, man. He's like, oh, but he's terribly, terribly appreciative of the jury doing the right thing. All that wore off is like, this is amazing. It's life changing. Thank you jury. They did their job. It's the legislators that took this from them. But I mean this will change his life. He'll be able to not work 16 hours a day behind a desk doing help stuff and try and be able to start doing things with his kids again so he can make up for some time lost through all this. So he's the most inspirational, positive driven person I've ever met. And I've only known him Postex explosion when he lost his limb. I can't imagine what he was like before you met him. Tim, the guy is incredible and he's a dear friend of mine.

Tim Galluzi (:

Yeah, and it's cool that, as you said, the case has gotten a lot of media. You've drawn a lot of attention through his story to the injustice of damages caps, which is good. Before we wrap up, how can people contact you if they have more questions? I know you gave your email earlier and then do you have any speaking engagements coming up? You mentioned TLU, any other opportunities for people to learn from you?

Kurt Zaner (:

Yeah, so TLUI got a lot of stuff on TLU Live, TLU on Demand. That's Trial Lawyers University, Dan Ambrose's outfit. I got like seven or eight lectures up there, nine. If you pay this subscription, you can go see them or you go to his Huntington Beach seminar June 2nd. I'll be speaking there a lot. I'll be speaking at a J convention this summer a couple of times out in Nashville. Be speaking at the Colorado Trial Lawyers Convention this summer in Aspen, August 8th to 10th. But yeah, hit me up kz@zhlaw.com, kz@zh-law.com. Look up my website, call the number there. You can even call my cell if you want. 3 5 2 2 6 2 1 4 6.

Keith Fuicelli (:

And Tim, if people want to get ahold of you, how do they get ahold of you, Tim, when people have these monster cases and now they're worried about a conflict, Tim is the guy to call. So who are they call? How

Tim Galluzi (:

Do they get ahold free me in to take the client who doesn't have any damages? My go-to is

Kurt Zaner (:

Tim was amazing in this case, who should absolutely bring Tim on. He's incredible. Thanks

Tim Galluzi (:

Man. Yeah, my email is just tim@cglawfirm.com. tim@cghlawfirm.com. We got to

Kurt Zaner (:

Find, try together, Tim. We got to find one man. Yeah,

Tim Galluzi (:

No, I'm looking forward to it. It'll happen. It'll happen. I do want to tell each of you that you have been inspirational in my career too. Truly inspirational. Every time I talk about trials with you guys, I leave the conversations just fucking fire. Let's go do some justice and let's get in there. And I can't wait for my next trial now. So yeah, thanks to each of you. I feel like it was privileged to have this conversation with you. Well, I

Keith Fuicelli (:

Just want to thank both of you. First of all. Congratulations, Kurt, on another amazing result, and I want to thank you for the inspiration you provide to me and all of the trial lawyers that listened to you and learn from you. It really is sort of like a fire that grows. So thank you for all that you're doing, and Tim, thank you for helping get this all together and being one of my good friends. So I really appreciate that. And thank you both for coming on. And with that, we'll see you all next time on the Colorado Trial Lawyer Connections. So thanks again 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 at www dot the ctlc com.

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About the Podcast

Colorado Trial Lawyer Connection
The pursuit of justice starts here.

Join host Keith Fuicelli as we uncover the stories, strategies, and lessons from Colorado trial lawyers to help you and your clients achieve justice in the courtroom.

Our goal is to bridge the gap between theory and practice—connecting you to the proven strategies that work from the state’s most accomplished litigators—to sharpen your own skills in the pursuit of justice.

If this podcast is bringing value to your practice, be sure to subscribe and join us on every episode as we dissect real cases, learn from Colorado's top trial lawyers, and empower our legal community to reach greater heights of success. Keep your connection to Colorado’s best trial lawyers alive at https://www.TheCTLC.com

Ready to refer or collaborate on a case? The personal injury attorneys at Fuicelli & Lee can help. Visit our attorney referral page at https://TheCTLC.com/refer or call our Denver office at (303) 444-4444.

Fuicelli & Lee (https://coloradoinjurylaw.com) is a personal injury law firm dedicated to representing clients across Colorado who have suffered catastrophic injuries due to someone’s reckless or careless actions. Our top areas of focus include: car accidents, brain injury/TBI, truck accidents, motorcycle accidents, wrongful death claims, pedestrian accidents, bicycle accidents, drunk driving accidents, dog bites, construction accidents, slip & fall/premises liability, and product liability.

The information contained in this podcast is not intended to be taken as legal advice. The information provided by Fuicelli & Lee is intended to provide general information regarding comprehensive injury and accident attorney services for clients in the state of Colorado.