Vern Ready – Turning “Corporation vs. Customer” into a $2.7M Verdict
What turns an ordinary premises case into a $2.7 million verdict? Strategy.
When a 68-year-old woman tripped over a fallen curbside sign outside Target, Vern Ready didn’t just argue negligence — he built a case around corporate decision-making. Discovery revealed no wind-resistance policy, no inspection protocol, and no meaningful response to employee reports about falling signs. That allowed him to frame the case as “corporation versus customer” — and when employees testified, “corporation versus employee.”
In this episode of Colorado Trial Lawyer Connection with host Keith Fuicelli, Vern breaks down the tactical decisions behind the verdict: saving his cross of the defense doctor for trial, telling the medical story through the client’s lived experience instead of clinical jargon, using a simple ELMO instead of flashy demonstratives, and positioning damages after a $500,000 pre-suit offer.
The jury asked for a calculator — and returned $2.7 million.
A masterclass in framing, restraint, and trusting the jury to connect the dots.
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Episode Snapshot
- Vern's client, a 68-year-old woman, tripped over a fallen portable curbside sign outside a Target, finished her shopping trip, and ultimately required two surgeries for ulnar nerve damage in her right hand.
- Vern framed the case as "corporation versus customer" and “corporation versus employee” when Target's own employees testified that the company provided no guidance about wind resistance, sign maintenance, or safety procedures.
- Discovery revealed that nobody at Target had checked the manufacturer's wind resistance specifications for the signs, no policy existed for bringing them in during wind, and nobody responded to internal reports about falling signs.
- Rather than deposing the defense doctor, Vern saved his ammunition for trial, where he caught the doctor mid-testimony reading only half a sentence from a second-opinion record that actually supported his client's future surgical needs.
- In opening, Vern told the medical story from the patient's perspective — not through clinical terminology — by asking, "What makes a person agree to have surgery to try to fix something?"
- Instead of flip charts, Vern used an ELMO when writing – “just like an overhead projector.” The technique landed well with jurors, he says.
- The jury asked for a calculator during deliberations and ultimately awarded $2.7 million — more than five times the $500,000 pre-suit offer that Target had made.
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
Welcome to the Colorado
Trial Lawyer Connection,
Speaker:where Colorado trial lawyers share
insights from their latest cases. Join me,
Speaker:Keith Fuicelli, as we uncover
the stories, strategies,
Speaker:and lessons from recent Colorado trials
to help you and your clients achieve
Speaker:justice in the courtroom. The
pursuit of justice starts now.
Speaker:Howdy everyone,
Speaker:Keith Fuicelli here for another episode
of the Colorado Trial Lawyer Connection
Speaker:Podcast. And this one is a doozy.
Speaker:Super excited to have Vern Ready
on to talk about a truly amazing
Speaker:$2.7 million verdict against
Target on a slip and fall case.
Speaker:And if that doesn't sort of pique your
interest and want to know how on earth
Speaker:did you do that, let me give you a
little more. This is in federal court.
Speaker:This is a very interesting
liability and damages side case and
Speaker:just an expertly tried case
by Vern. And with that,
Speaker:welcome to the show, Vern.
Speaker:Thanks so much and thanks for having
me on. I really appreciate it.
Speaker:The list of people you've had on is pretty
amazing. Just glad to be among them.
Speaker:Now. I love that.
Speaker:Thank you for sort of saying that because
I hope that when young lawyers listen
Speaker:to this, they think, "I can't wait
to get that verdict to come on.
Speaker:" And then I hope when
they get that verdict,
Speaker:they reach out and everybody comes
on and talks about what worked,
Speaker:what didn't work. And
really what I'm hoping,
Speaker:and I know that you and I spoke about
this a little bit before we went on,
Speaker:that when people listen to these episodes,
it empowers them. And they think,
Speaker:"You know what? I could do that. I got
my case. Let's roll." Was that sort of,
Speaker:I know you had mentioned that you went
back and sort of listened to some of the
Speaker:episodes before today.
Speaker:Yeah.
Speaker:Is that true to you?
Speaker:Well, it is absolutely true.
Speaker:I will blame you for figuring out
my voice memo app because as I'm
Speaker:listening and doing other
things, I'm just like, "Ah,
Speaker:I've got to get a note on
that before I forget it.
Speaker:" And there's just so much value that
has come from listening to other people
Speaker:and talk about what went well and of
course what didn't. So that's great.
Speaker:It does feel like I've heard
this on other podcasts. I mean,
Speaker:this is a golden age of information.
So for young lawyers that are out there
Speaker:that want to be trial lawyers,
Speaker:their world is your oyster as far as
learning what to do and how to do it,
Speaker:which is that on a previous episode,
Speaker:I talked about using that Apple
voice memo feature because A,
Speaker:we get these random thoughts in the middle
of the night or when we're on a walk
Speaker:or a jog. It's a great
way to put pen to paper,
Speaker:but I really like wordsmithing my opening.
Speaker:Not that I memorize it or read
it, but wordsmith my opening,
Speaker:recorded in voice memos and then forced
myself to listen to myself and I hear
Speaker:how annoying I can be at times and
real pronunciation and I think of it.
Speaker:So I'm glad I.
Speaker:Helped. Right. Do you rehearse a lot
because you say you don't memorize,
Speaker:but I mean, I rehearse a ton before.
Speaker:That's a great question. I'm going to
share because everybody does it different.
Speaker:And to me, we're talking
opening statement.
Speaker:And.
Speaker:I definitely believe opening statement
is the most important piece of the trial
Speaker:and it's the part you can't prepare the
most for. Some people that are amazing,
Speaker:world renowned trial lawyers would
never memorize it and I don't do that,
Speaker:but this is what I do.
Speaker:I will spend a lot of time actually
writing word for word out what
Speaker:in my mind is a perfect opening. And it
is like from the beginning to the end,
Speaker:and then I will record it. And inevitably,
Speaker:I will end up going through about 10
different versions of that opening,
Speaker:wordsmithing the crap out of it, right?
Speaker:Yeah.
Speaker:And then I sort of have triggers for
like the roadmap of where I want to go
Speaker:becomes encered in my brain.
Speaker:Then I can get up and
I feel like, frankly,
Speaker:the opening part of it is memorized, the
catch, what did the defendant do wrong?
Speaker:There are definitely parts of it that
are memorized, but at least for me,
Speaker:I have found that I can do the opening
that way and be engaging and authentic
Speaker:and have great eye contact. Obviously,
Speaker:I don't have any notes and I will
use a PowerPoint selectively so that
Speaker:you're not using it as a crutch. At
least that's how I do it. So tell us,
Speaker:what's your procedure? How
do you go about your opening?
Speaker:Then we'll talk about
what you did in this case.
Speaker:As far as getting ready, I would say it's
pretty similar to what you described.
Speaker:And then I just go over it like a whole
bunch of times, just talking out loud,
Speaker:walking around my house, making
a sandwich, doing openings.
Speaker:And.
Speaker:Doing different parts of the
trials. And I'll do that.
Speaker:And I think it just makes me personally
feel more comfortable so that when I am
Speaker:in front of the jury, it can be
more natural. It's not like, "Oh,
Speaker:where was I going to go next?
And how best to say this?
Speaker:And did I get everything in? "
Speaker:I wouldn't call it memorization.
Speaker:It's more like just practice and practice
and practice and practice so that you
Speaker:feel super comfy by the time you're up
there doing it and you just feel like you
Speaker:can be more natural and you can just
stand there and talk to people and make,
Speaker:like you said, good eye contact.
Speaker:You can respond to people because
you feel like I've got this piece,
Speaker:that opening that you can prepare
so carefully in person or in advance
Speaker:so that when you're in person, it's a
little less halting, a little less like,
Speaker:"Oh, where was I going with this? " And
it's just talking about that message.
Speaker:Yeah. I couldn't agree with
you more. I know Sean Claggett,
Speaker:I've heard him sort of
talk about it as well.
Speaker:It's like by the time they go to trial,
Speaker:the person who's doing
opening has done it 20 times.
Speaker:So it just is so automatic at that
point, nothing's going to throw you off.
Speaker:And I get it. There are lots
of lawyers that would never ...
Speaker:They just have an outline,
Speaker:they get up there and they communicate
and they have that sort of authentic
Speaker:connection with jurors and
they're amazing trial lawyers.
Speaker:But I do feel like it's the one part
of the trial you can prepare the
Speaker:most for.
Speaker:It's the one piece where you sort
of know exactly what you want to do.
Speaker:And I've found that I end up spending
too much time preparing the opening.
Speaker:And to be brutally honest
in Nick Riley's words,
Speaker:I completely dropped the ball on preparing
closings and rebuttal closings. So
Speaker:I'll be going into closings and it's like,
Speaker:I haven't even really thought
about it. I'm just going to go in.
Speaker:I don't have PowerPoint
ready. So that's what I.
Speaker:Need more. Well, let's talk about closings
though and trying to prepare them.
Speaker:Okay. So it was probably completely out
of order where we're supposed to head.
Speaker:But let's say we're talking about
preparing here and how you can
Speaker:prepare that opening.
And for me, it helps.
Speaker:Nobody's going to do it
exactly the same way,
Speaker:but for me it helps and I feel like I
can then have that natural connection.
Speaker:But in closing, for
example, in this trial,
Speaker:I was still taking testimony from the
defense doctor the morning of close.
Speaker:Wow.
Speaker:And so yeah, you've got an
idea of where you want to head,
Speaker:but things are still coming out that are
new. And then you're taking testimony,
Speaker:taking testimony, typing
testimony, you take a little break,
Speaker:you're doing your close, right?
Speaker:And so you have to be open to
different approaches, I guess,
Speaker:and remain flexible because in this one,
Speaker:my wife helps me with trials, Jennifer,
Speaker:and she's there throughout the trial
from start to finish and writing down
Speaker:nuggets about what people are saying and
watching the jury for me and all this
Speaker:stuff. It's amazing help.
And then prepping close,
Speaker:we're just pacing in a hallway and we're
throwing in bullet lines and we're just
Speaker:like, "And this one's at this and that
one's at that. And we need to put, oh,
Speaker:and this is golden. We're
going to put this in.
Speaker:" And it comes together. I don't know
how you could prep a close the same way
Speaker:you would prep an opening,
Speaker:just because it's so changeable
throughout the trial based on what
Speaker:actually comes in and
what people have to say.
Speaker:Yeah. I guess my thought on that
is it seems like all closings,
Speaker:part of it is massaging the
jury instructions, however
you want to call that.
Speaker:You've got the verdict form,
Speaker:you know there's jury
instructions you need to go over.
Speaker:So you can plan that in advance and
you can have a PowerPoint with those
Speaker:instructions ready to go and that's
about as best as I've been able to do.
Speaker:I'm anxious to improve on my
closings by utilizing more
Speaker:visual triggers. So when there's a
theme or something that's come up,
Speaker:and ideally you could
start this in opening,
Speaker:if you're able to use visuals
in opening that are not
Speaker:admitted into evidence, which
I know is such a struggle.
Speaker:It seems like in other parts of the
country, people have a lot more leeway,
Speaker:but to the extent you're able
to take a concept and define
Speaker:that concept with some kind of symbol
and then use that symbol again in closing
Speaker:to trigger the juror's memory,
Speaker:I want to try that. That's what
I'm going to work on in the future.
Speaker:So with that being said, great. Well,
except I'm telling you, it is frustrating,
Speaker:at least in Colorado,
Speaker:it feels like all of the judges believe
if you have not stipulated to an
Speaker:exhibit, you can't use it in opening.
Speaker:So it just seems like you got to
get really creative in terms of
Speaker:visuals you want to use
to assign to a concept.
Speaker:But I think in some respects,
Speaker:that restriction leads to simplicity,
which should work in our favor.
Speaker:So if there's a concept that
we're trying to explain,
Speaker:be it somebody didn't have
symptoms before and then they did,
Speaker:we can come up with some visual that
is simple and then we'll talk in a
Speaker:minute about,
Speaker:and actually I was just in a meeting with
our trial team on another case talking
Speaker:about exchanging PowerPoint visuals
before pretrial conference and getting
Speaker:objections and things of that nature.
Maybe we can cover that later.
Speaker:But when they see a visual that is so
simple, I suppose they're going to say,
Speaker:"Well, that's not evidence. That's going
to be argument." And unfortunately,
Speaker:I feel like a lot of judges won't let
us do that, but it's still worth a try.
Speaker:Still worth a try. Still worth a try.
Speaker:Because anytime you can put something
in your opening and then come back to it
Speaker:later and say, "I told you I was going
to, and I did, and here it is. ".
Speaker:Yeah, for sure.
Speaker:And I think even if you're
left with photographs or other
Speaker:evidence that the defense can't credibly
say is not going to be stipulated to or
Speaker:is not going to be admitted,
then it's still show don't tell.
Speaker:So I definitely strongly believe
you want to be using visuals in
Speaker:your opening to tell the story because
the defense often gets up with their
Speaker:legal pad and just rambles.
Speaker:Sure. Yeah, true.
Speaker:That was a heck of an intro and
Speaker:I want to talk about this
case, but before we do,
Speaker:just tell us a little bit
about yourself and how it is.
Speaker:I do like to get to know people a little
bit better in our community of Colorado
Speaker:trial lawyers. How is it that you
came to be a Colorado trial lawyer?
Speaker:Well, I guess it depends on how far back
we want to go because I've always liked
Speaker:helping people.
Speaker:I feel like everybody needs a little help
sometime and it feels good to be able
Speaker:to be that help and do that
for them. I grew up in a family
Speaker:without any money and my dad was arrested
for reconnecting the power when they
Speaker:turn it off multiple times,
Speaker:that kind of thing and fingernail
polished to change the sticker on the car
Speaker:plates. Wow. Yeah. Yeah.
Speaker:So we always needed help.
Speaker:And I always knew going into law school
and through law school that I was
Speaker:doing this because I wanted to
represent people, individuals.
Speaker:So ended up doing criminal
defense for a while,
Speaker:interned at the public defender's office.
Speaker:We were doing trials all the time
there. You're a prosecutor, right?
Speaker:So got those core trial skills early.
Speaker:And then for me,
Speaker:I moved on and did a bunch of family
law for a while and then found that I
Speaker:really love doing personal injury. But
it's always been representing people,
Speaker:trying to be there to
help people who need help.
Speaker:And that feels good and that's
worth coming to work for.
Speaker:Yeah.
Speaker:And the one thing I feel like that I was
able to get at the prosecutor's office,
Speaker:and you probably received when you
were interning at the public defender's
Speaker:office, is before you ...
Speaker:I feel like you can be
free and express yourself
Speaker:effectively,
Speaker:you got to learn the fundamentals and
there's no better place however you
Speaker:do it to learn those fundamentals.
Speaker:Is that the advice if someone's
out there listening and they think,
Speaker:"I want to be a trial lawyer," would
you say, "Go to the PD's office,
Speaker:go to the public defender's office,
or do criminal defense, family,
Speaker:whatever it is to get in front
of people and judges and get
Speaker:those fundamentals.
Speaker:Down." Yeah,
Speaker:I would just say whatever gets you into
what you truly want to do more often.
Speaker:I think for some folks, it's
really good to all, walk, run,
Speaker:and for some people it fits to
just run, right? And so I think-.
Speaker:Fly, fly. Yeah.
Speaker:Yeah. Right. Figure it out. And no,
Speaker:I think there are definitely
learning experiences all over.
Speaker:So I guess I would just say probably
what everyone should be aiming to do is
Speaker:what they love to do and what makes
you happy and what makes you really
Speaker:motivated to come to work.
Speaker:And for a lot of people who do
what we do and are amazing at it,
Speaker:they probably wouldn't feel super amazing
doing criminal defense or or what have
Speaker:you, right? It's just, this is going to
fit everyone. But I would say people,
Speaker:you know when you're doing the right
thing and it feels right and you are
Speaker:whistling on the way
to the office, do that.
Speaker:Yeah. I love that.
Speaker:And the thing that I just caught
myself thinking as we were having this
Speaker:conversation about
fundamentals and whatnot,
Speaker:is that juries and even
judges are a lot more
Speaker:forgiving than we may think.
Speaker:We come in striving for perfection,
Speaker:thinking if we stumble over our words or
stumble over admitting the document or
Speaker:something, the jurors are going to punish
us, but the opposite is probably true.
Speaker:They see what's in there fighting,
Speaker:not being perfect and
they resonate with that.
Speaker:So I guess what I'm telling any young
listeners out there is just go do it and
Speaker:you'll learn by doing, and
if you fall a couple times,
Speaker:it is fine because you're
going to do just fine.
Speaker:If you're pursuing a just cause and
you've got a good client, then just go.
Speaker:Yeah, absolutely. And maybe
the more often you're going,
Speaker:which is sometimes still trying to learn
myself, the more often you're going,
Speaker:the less worried you'll be about
how are they perceiving me or
Speaker:judging me or whatever.
Speaker:And I know that there are some trial
gurus out there who have transcended that
Speaker:concern about like, it's not about me
and it's not about how I'm being judged,
Speaker:but I think we all still
struggle. For sure.
Speaker:Yeah. So how is it you have your
solo practitioner, is that right?
Speaker:Yeah. Yeah. I'm a solo.
Speaker:Tell us about your journey of how
you ended up hanging your shingle.
Speaker:And honestly,
Speaker:what advice would you give for other
lawyers that are listening that maybe are
Speaker:thinking about doing that or are about
to do it? What advice do you have?
Speaker:Yeah.
Speaker:I think nobody's a true solo
because there are organizations like
Speaker:CTLA out there,
Speaker:the people like you out there and the
people you've had on who repeatedly say
Speaker:they're willing to mentor
and don't try to just
Speaker:make it all up as you go. Talk to
people who've done it and been there,
Speaker:listen to these things,
Speaker:be a sponge is what I'm still trying
to be as a sponge and just take it all
Speaker:in,
Speaker:take in as much as you can and
don't be afraid to do it differently
Speaker:because, okay,
Speaker:so you've got all these
different approaches to how
you prep for opening or I
Speaker:prep for close or what we think
about jury selection and should it be
Speaker:exclusionary or should we start
educating immediately and all of these.
Speaker:You get a million ways to do a trial
And who knows how many of those will
Speaker:come out with great outcomes until
you're out there doing it and finding out
Speaker:what works and what feels right for you.
Speaker:And experimentation helps
us figure that out, I think.
Speaker:And obviously just doing it, being there.
Speaker:Co-counseling with people is certainly
a big deal. Shouldn't be overlooked.
Speaker:We do a whole lot of good
with co-counseling and a
whole lot of learning through
Speaker:that. So I just think run toward what
you want to do and keep doing it,
Speaker:put yourself in the arena and stay
there as much as you can and then you're
Speaker:going to come out an expert, right?
Speaker:Yeah. I love that. I love
that. So all right. Well,
Speaker:let's dig into the facts of this
case because it is fascinating.
Speaker:Tell us a little bit about what happened
and then we can get into the trial
Speaker:strategy piece of it.
Speaker:So my amazing, super credible,
Speaker:awesome client was.
Speaker:I'm going to pause you right there.
Speaker:It seems like every great
result starts with that intro.
Speaker:Oh, really? Yeah.
Speaker:It seems like the point is
great clients make for great
Speaker:results.
Speaker:So if you've got a case you're working
through litigation and you're like, "Man,
Speaker:I love this client, that's something
to know. " Or if you're like,
Speaker:"This client's driving me crazy,"
then maybe that's something you got to
Speaker:consider too. But I interrupted
you. I'm sorry. Tell us what.
Speaker:Happened. Don't be sorry at all.
Speaker:And I think you're right about that
because of course the jury wants to reward
Speaker:people they like. And so, okay. Anyway,
Speaker:she was a 68 year old Target
customer the day that she fell and
Speaker:she was approaching the store
with her daughter and there
Speaker:was a sign that had fallen over
in the wind and they kind of
Speaker:walked by the sign toward the
front door and then she remembered,
Speaker:and this was in 2021,
Speaker:she remembered that she had forgotten
her mask and there's still signage at the
Speaker:store that reminded people on the way in
from COVID times to please wear a mask.
Speaker:She turns around, starts to go back to
her car, trips over the fallen sign.
Speaker:And then after she's
Speaker:down for a bit, gets some first
aid help from Target employees,
Speaker:she goes in and continues her shopping
trip with her daughter, so no big deal,
Speaker:no case, right?
Speaker:Well,
Speaker:do me a favor and back up and
describe this sign because
Speaker:is it a sign that's in the
cement or tell us about this.
Speaker:Sign.
Speaker:And that's important because I think a
lot of the signs in the parking lots that
Speaker:we're used to seeing are installed
and directly into the asphalt.
Speaker:So you don't really have to worry
about testy things like wind,
Speaker:but Target chose instead to purchase
these portable signs that have
Speaker:these plastic fillable bases,
Speaker:then you're meant to fill them with
materials that are recommended by the
Speaker:manufacturer so that they can resist
wind and stay upright up to a certain
Speaker:extent. Of course, there are
limitations on the signs,
Speaker:but they have wheels on the side so they
can easily be wheeled off next to the
Speaker:store if it's super windy out and
then brought back out as needed,
Speaker:or you could just have more of
them out or fewer of them out.
Speaker:And these signs were used in
that kind of drive up, pickup,
Speaker:curbside pickup area that everybody
started using in COVID times.
Speaker:So it was meant for people to come
out and fill orders and then go
Speaker:back into the store and you would park
and call and tell them which spot.
Speaker:So this would be the sign that's in
between the parking spaces that has a big
Speaker:sign on it that says what parking
space you're in and so on.
Speaker:And that's the sign. It's like an eight
foot tall sign. This is a large sign,
Speaker:which was of course part of our trial.
Speaker:And I think in a lot of trip and fall
cases, part of the defense is always,
Speaker:"Well, why wouldn't you watch where
you're going? " And so we had,
Speaker:"Why weren't you watching where you going?
Speaker:" She was fine because she
continued her shopping trip after.
Speaker:Can't have been that
bad. We had all of that.
Speaker:But it turns out that when she
fell, the way that she fell,
Speaker:she felt like right hand out and extended,
Speaker:so the palm of her hand struck the
ground and then kind of rolled.
Speaker:And the way it extended
and injured her hand,
Speaker:she ended up with ulnar nerve
damage from the elbow area,
Speaker:we'll say symptomatic ulnar nerve damage
from the elbow area and in the right
Speaker:hand that affected how she
uses her hand and caused pain.
Speaker:So quick question on that.
Speaker:Is that similar to carpal
tunnel type of injury or is this
Speaker:different?
Speaker:It's different.
Speaker:So we had a fight over whether the
defense could call it carpal tunnel during
Speaker:jury selection.
Speaker:We submitted questions to the judge in
this case in advance and then the court
Speaker:pulled from our submitted questions
to ask their own questions or his own
Speaker:questions. And one of theirs that they
submitted mentioned carpal tunnel. And
Speaker:it was one of those
situations where you think,
Speaker:should I just let them ask that or let
someone say that and then show how this
Speaker:is so much different than that? Because
when you think of carpal tunnel,
Speaker:I'm sure there are very severe cases and
I'm sure they can be very debilitating,
Speaker:but I think a lot of
people think of, "Well,
Speaker:my wrist is a little bit sore because
I've been typing a lot." And so we thought
Speaker:they were headed that direction. They
ended up kind of like throwing that out,
Speaker:but it was so thoroughly discredited that
that was just not the issue. And that
Speaker:was kind of the other side that held me
back a little bit on wanting to make a
Speaker:full fight out of that was we're going
to be able to show that this is quite
Speaker:different than your standard like, "Oh,
Speaker:my wrist hurts a little bit
and it's a little bit sore.".
Speaker:Was there any issue about
the severity of this injury
Speaker:requiring surgical intervention? I mean,
Speaker:was it like a pretty big deal that
was debilitating for the client,
Speaker:so that wasn't really a fight or were
they trying to claim she didn't really
Speaker:need surgery on this?
Speaker:No, they actually did not go that
direction necessarily that she didn't need
Speaker:surgery.
Speaker:I was more concerned about
defense argument that maybe
the surgery made it worse
Speaker:because we did have worsening over time.
Speaker:And so part of what we were doing in
our preparation is just like, of course,
Speaker:with all of these cases,
Speaker:you have to personally get into the
weeds with the medical records and know
Speaker:them. As part of that,
Speaker:we were looking for support
for her explanation of
Speaker:how this has been, which has
been a worsening over time.
Speaker:And so what we went to trial with
was examples in the medical record
Speaker:from where there was worsening
before the first surgery.
Speaker:There was worsening
after the first surgery.
Speaker:There was worsening before the second
surgery, yes, there were multiples,
Speaker:and then there was worsening
after the second surgery.
Speaker:So we had a lot of explaining to do
on that because I think my concern
Speaker:going in, of course,
Speaker:was that jurors would be sitting there
thinking the entire time like, "Okay,
Speaker:well,
Speaker:why are the surgeries if they didn't
resolve it? " And so we were on that early
Speaker:and making sure we were telling that
story with everybody. So let me.
Speaker:Kind of circle this
back around to opening,
Speaker:because I'm curious when you're
talking about this ulnar nerve injury
Speaker:that got worse over time, et cetera,
Speaker:did you include a teaching section
in your opening to address and
Speaker:start to familiarize the jurors
with these medical concepts?
Speaker:Yeah, because I felt like it
was going to be a hard ...
Speaker:We didn't want that to just unfold or
have the defense have the first crack at
Speaker:that, right? So yeah,
Speaker:and I think opening is so great for that
because you can tell a story that is
Speaker:really educating them about the medicine,
Speaker:but it sure sounds like you're just
talking about her life and how it impacted
Speaker:her and what it was like.
Speaker:So it was told from
the perspective of what
Speaker:makes a person agree to have
surgery to try to fix something.
Speaker:And what were her
thoughts when she's told,
Speaker:just like we're all told around surgery
time that this probably is going to
Speaker:help, but it might not. And
do you take that seriously?
Speaker:And what's the difference between
surgery we wanted surgery to for her?
Speaker:So everything,
Speaker:all the medicine education was kind of
like put forward as a patient would think
Speaker:about it, not as a doctor
would necessarily explain it.
Speaker:So let me just see if I'm understanding
this because I'm very intrigued.
Speaker:Are you saying that in your opening,
Speaker:you sort of told the story of the medicine
from the perspective of the patient
Speaker:about what was- Yes. Oh, that's
brilliant. I love that. Explain to her?
Speaker:Right.
Speaker:And why would she agree to a second
surgery after the first one didn't work?
Speaker:Well, because they told her it
was going to be different, right?
Speaker:They're doing a different thing this
time and we're really confident this is
Speaker:going to help.
Speaker:And then what's it like for her when
the pain comes back after surgery number
Speaker:two? And so we're giving
them cues along the way that,
Speaker:because I'm thinking the defense is
going to get up and just say, "Well,
Speaker:if it didn't work the first
time, why'd they do it again?
Speaker:It's the same thing again,
Speaker:but it's definitely not the same thing
again." We wanted them to know that right
Speaker:from the start.
Speaker:But I thought it'd be more compelling
of kind of like allow them to imagine
Speaker:themselves in that situation
where they're just like,
Speaker:"You'll do whatever it takes to get
better when you're in pain all the time."
Speaker:Yeah.
Speaker:I got to tell you a story that I just
heard Jordan Logan explain on another
Speaker:podcast because it reminds me
exactly of what you just said,
Speaker:which is you're worried that the defense
is going to get up and say, "Well,
Speaker:why did she get this second surgery if
the first one didn't work?" And so what
Speaker:Jordan did in a different case is
basically get up in opening and say,
Speaker:"And the defense is going
to come in and say, well,
Speaker:why'd she get this surgery a second time
if the first one didn't work?" And then
Speaker:the defense lawyer got up
and was like, "No, no, no,
Speaker:we're not saying that and said something
else." But then they were able to
Speaker:diffuse that argument altogether because
the defense lawyer agreed that they
Speaker:were not going to argue that.
Speaker:But I love that idea of
telling it from the perspective
Speaker:of your client.
And I also want to give a shout out,
Speaker:sorry De Lamont,
Speaker:I've spent some time with her at her
trial lab and have spent some time dealing
Speaker:with her opening and she calls
it like the teaching section.
Speaker:And so what I'm sort of hearing
about, and yours is like, jurors,
Speaker:in order to do your job here,
Speaker:you're going to have to learn about
this thing called the ulnar nerve and go
Speaker:into all this explanation.
Speaker:How deep did you go in opening or did
you just sort of leave it from the
Speaker:perspective of what your client
was being told by the doctors?
Speaker:The opening was given.
Speaker:From mostly the perspective of the client.
Speaker:There was very little technical
medical in my opening.
Speaker:It was meant to be a story start
to finish about her situation,
Speaker:what happened to her and
what her experience through
it all was like. However,
Speaker:I did feel the need to flip
some medicine in, again,
Speaker:from her perspective though. So it
was like, I just framed it as like,
Speaker:why would she agree to do it all again?
And you're going to hear. Of course,
Speaker:I did this section about had
to ask ourselves and sorry
to Lamont advocates that
Speaker:too. And there's a section in
her opening that is like, okay,
Speaker:we have to deal with the bad stuff.
Speaker:And so after telling a story as
like, before we brought you here,
Speaker:we had to ask ourselves some
questions and pick those, right?
Speaker:Yeah.
Speaker:And you kill them. And there
was some medicine in there like,
Speaker:was it the doctor's
fault? Was it made worse?
Speaker:Whose fault would that be in the end?
Speaker:Because of course you could always
try to persuade a jury that if a
Speaker:doctor made a mistake, then it's
still the tortfeasor's fault.
Speaker:But I feel like that doesn't always feel
good to be up there in that position
Speaker:trying to do that. And that
wasn't the case in our case.
Speaker:So before I go too far down that road,
I was worried about it being a defense,
Speaker:but it was not backed up by the
evidence and it simply was not the case.
Speaker:Now,
Speaker:how much time did you spend in opening
percentage wise talking about Target and
Speaker:its conduct versus the
perspective of your client?
Speaker:Because as you're hearing that, that
sounds awesome, but I'm like, okay,
Speaker:but are you violating the rule of spending
too much time in opening and talking
Speaker:about your clients?
How'd you deal with that?
Speaker:I just started with Target and I'm aware
of that suggestion that we not start
Speaker:with our own client. And I agree and
I don't, I think most of the time,
Speaker:I guess I agree.
Speaker:David Ball makes a really good point
about like not bringing your client's name
Speaker:into it at the beginning.
Speaker:My framing of this case was really
like corporation versus customer.
Speaker:How did you frame it that way?
Speaker:First off, I never said target.
Speaker:I said target corporation every
time throughout the entire trial.
Speaker:And there was a lot of ... We
called, I should know four or five,
Speaker:but I think we called four target
employees as witnesses ourselves. And what
Speaker:we wanted to be clear with them as I was
up there kind of like just wrapping and
Speaker:joking with them a little bit
at times, "It's not your fault.
Speaker:We're not blaming you for this.
Speaker:Target set you up." It's like the
corporation didn't provide you what you
Speaker:needed. They didn't tell you what the
wind resistance of these signs were.
Speaker:You didn't have a part
in choosing these signs.
Speaker:You didn't have a part in choosing what
colors they used for these signs or what
Speaker:colors they used for the parking
space. You didn't have a role,
Speaker:you weren't at the table, right?
Speaker:Nobody told you how often to check these
things to make sure that they stayed
Speaker:full. Nobody told you what the
procedure was for writing them down,
Speaker:all of this stuff.
Speaker:And so you just separate these poor
employees who are out there doing their
Speaker:absolute best and the corporation
who kind of hung them out to dry by
Speaker:sending these things out with absolutely
no guidance whatsoever about how to use
Speaker:them. I shouldn't say no guys whatsoever
because they did actually send a little
Speaker:used cat litter, which is not
recommended by the manufacturer.
Speaker:And there was this whole moment where
the store manager who was called by the
Speaker:defense said, "Well,
Speaker:we know exactly how much cat litter we
put in there because it says 50 pounds
Speaker:right on the bag." And I was like, "Well,
these are the buckets that were used.
Speaker:We got that in on another Target employee
and there were 30 pound buckets." And
Speaker:she was like, "Well, we'll use
three and that filled them,
Speaker:but they were 30 pounds versus 50 pounds.
Speaker:Started stores don't sell a 50 pound
bag of cat litter and we knew that.
Speaker:And so we asked her and she didn't know.
Speaker:" And so there was a
weight difference based on,
Speaker:it It created a question of how these
things were filled and whether they were
Speaker:filled properly.
Speaker:I want to pause for a second because what
you were just talking about is frankly
Speaker:brilliant.
Speaker:And it is brilliant for you to call
Speaker:target employees and
blame it on the company
Speaker:set you up to fail. That is,
Speaker:I don't recall- You successfully
got that done on the 30 cross.
Speaker:So tell us about that. Tell
us how you worked that in.
Speaker:Number one was this strategy
of we're going to have the
Speaker:Target employees be sympathetic and
the corporation set them up to fail.
Speaker:Did you have that before
the 30 depo? And if so,
Speaker:how did you implement it in the depo?
Speaker:Okay.
Speaker:So it was maybe a bit low hanging
fruit because it was apparent based
Speaker:on discovery responses that we weren't
going to get a lot of information
Speaker:because there wasn't information. We.
Speaker:Weren't going to get a lot of
documents because there weren't.
Speaker:Tell us more about the discovery
responses that led you to that.
Speaker:We're talking response to documents
about policies and procedures and things
Speaker:like that?
Speaker:Well, no, just like the
acquisition of the signs.
Speaker:They couldn't produce any documents in
connection with the acquisition of the
Speaker:signs. They couldn't tell
us who made the decisions.
Speaker:They couldn't tell us who was
present, who was not present.
Speaker:They couldn't tell us who made the
decisions about whether to create a policy
Speaker:about when to bring them in.
Speaker:They couldn't tell us if anybody even
ever considered the wind resistance of
Speaker:these signs.
Speaker:Wow. Okay.
Speaker:They couldn't tell us if anybody checked
the manufacturer website because the
Speaker:wind resistance was right there super
clear, super easy to find. And nobody,
Speaker:as far as we know,
Speaker:based on the testimony that was provided
and discovery response and all that,
Speaker:as far as we know,
Speaker:nobody at Target ever actually looked
to see what the wind resistance of these
Speaker:signs were.
Speaker:And yet they acknowledged sending
these signs out all over Colorado.
Speaker:I believe it was obviously national,
Speaker:but they admitted all over Colorado
windy areas, not windy areas and so on.
Speaker:And nobody's watching the Weather Channel.
Speaker:Nobody's doing anything to kind of
know should these be brought in?
Speaker:There's no policy for doing that.
Speaker:There's no procedure other
than somebody thinks, "Oh,
Speaker:they're a bit wobbly." And they came
out during the trial that they knew that
Speaker:the signs were falling because
they hit some cars. Oh, wow.
Speaker:And The defense during
the trial just made it one
Speaker:sign had fallen, that
it happened one time.
Speaker:I'm not sure exactly what they based
that on because we had multiple witnesses
Speaker:throughout the trial say, "Well, yeah,
Speaker:I'm aware of it happening and it happens
maybe once a month." Or another one was
Speaker:like, it happens regularly.
Speaker:Another one admitted that they had sent
reports up about these signs falling and
Speaker:we got a regional manager on the stand
who agreed that she knew and it had been
Speaker:discussed and that she
had sent reports up.
Speaker:And then part of the argument enclosed
and then it kind of became like a
Speaker:miniature theme was that reports were
going up and nothing was coming down.
Speaker:Again, corporation versus employees.
Speaker:Right? It's just so masterful.
Speaker:You have regional managers and
potentially the corporate 30 getting
Speaker:concessions.
Speaker:And then are you saying that the
store manager was readily admitted,
Speaker:"I've never been given any
guidance, nobody ever told me.
Speaker:" So is that the juxtaposition that
you set up as sort of like regional and
Speaker:corporate knows this,
store manager knows that?
Speaker:Yeah.
Speaker:And we did point out that corporate
didn't send any of the documents
Speaker:down with these signs.
Speaker:They just sent their own instructions
and an email that they had made up and
Speaker:then nobody was ever even able
to produce that email. Wow.
Speaker:And then they had a procedure
for things like this.
Speaker:When they do things like this,
they're done this way. Well,
Speaker:that's not doing the thing.
And then
Speaker:there was also the corporate
expectations versus the actual
Speaker:boots on the ground and what
was happening was so different.
Speaker:And we were able to point
that out in a bunch of ways.
Speaker:One of them was we found the target
ethics code on their website and it
Speaker:includes some statements about
safety being their top priority.
Speaker:And then every single Target witness,
including the ones they called,
Speaker:embraced that immediately and we were
able to walk them through the ethics code
Speaker:and they embrace, embrace,
embrace, embrace. And then
we were able to ask them,
Speaker:what was the valid safety reason for
choosing signs that can fall over in the
Speaker:wind instead of signs that go
right down into the ground?
Speaker:What was the valid safety reason for
choosing colors that matched the colors on
Speaker:the ground instead of OSHA yellow,
Speaker:which was a standard option
for these sign bases,
Speaker:OSHA yellow.
And what was the safety reason for
Speaker:not having a policy about,
Speaker:not checking how much wind these things
can withstand and then not having a
Speaker:policy and all of this.
Speaker:And a lot of the answers
to that were not present
Speaker:in our written discovery responses.
Speaker:And so I was not surprised in the 30
deposition that the witness admitted to
Speaker:absolutely no prep because you follow
up and when they can't answer something,
Speaker:you just point out that,
"Hey, you saw this list,
Speaker:you knew what we were going to ask you.
Speaker:What did Target Corporation do to
prepare you to answer this question?".
Speaker:Okay.
Speaker:And the answer was, "I don't know.
Speaker:" Or,
Speaker:"I called some guy and he didn't know
either was the answer." And so what
Speaker:kind of surprised me a bit is that so
much time passed between the 30 depo and
Speaker:the trial and the same witness
was the 30 witness at trial.
Speaker:And then in front of the jury,
Speaker:instead of what did Target do to
prepare you to answer that question,
Speaker:when I got the I don't know,
Speaker:it was Target Corporation didn't really
prepare you to answer that question,
Speaker:did they? They sent you here to
answer that question for them.
Speaker:They're not here. They sent
you to answer this question,
Speaker:but they didn't prepare you to answer
it. And she was like, "No, they didn't.".
Speaker:Wow. At trial. Yeah. Wow. I love that.
Speaker:So kind of changing subject, I'm
just curious, in a case like this,
Speaker:did you have any kind of
expert on commercial signage
or store safety or did you
Speaker:need any kind of industry
standard expert in this case?
Speaker:No.
Speaker:I love it.
Speaker:I common sense did. And by the
way, I was worried about that.
Speaker:I was considering that. And it was one
of those things that I was thinking is,
Speaker:should we have a retail safety expert?
Speaker:But I felt like they were so off the
chart with their own lack of knowledge,
Speaker:their own ability to articulate
a standard of any sort. I mean,
Speaker:they could not tell us a standard
and it's their sign, right?
Speaker:It's their property and they admitted
landowner standards right at the beginning
Speaker:of the case. So we had
to fight over that, but
Speaker:they couldn't tell us what the standard
is. And so it was a reasonable standard.
Speaker:And I think everybody in the
room at the end agreed that their
Speaker:lack of information, lack of effort,
Speaker:lack of follow up and follow
through were not reasonable.
Speaker:Got it.
Speaker:So let's talk a little bit about
sort of the defenses in this case.
Speaker:What were you facing with
respect to the defense doctor?
Speaker:What was the conclusion
of the defense doctor?
Speaker:Like this is just degenerative change,
Speaker:you were going to get this
problem anyway type thing.
Speaker:What he did is he focused on the urgent
care record. So she went to the ...
Speaker:Like I said,
Speaker:she finished her shopping trip and they
were turned out they're actually really
Speaker:good personal reasons for that.
Speaker:So her daughter has these
needs and expectations and
Speaker:if things don't go as
planned, it doesn't go well.
Speaker:And this was a rare day out for them.
Speaker:And so the explanation of why she stayed
and continued to shop was actually
Speaker:pretty compelling.
Speaker:And it really showed off
her being a caring mother,
Speaker:but they made a big deal out of the fact
that she didn't go straight to the ER
Speaker:and they made a big deal out of the fact
that she continued to shop and it can't
Speaker:have been that bad.
Speaker:But what the defense doctor really
focused on was at urgent care.
Speaker:And as part of breaking these
records down and preparing for trial,
Speaker:we really needed to take
every symptom she has and
Speaker:find its origin.
And there was progression over time.
Speaker:So we're finding like for paresthesias,
Speaker:we're finding like early
reports of tingling, right?
Speaker:And they had overlooked a
record where there was tingling.
Speaker:So they believed that the first mention
of paraesthesias or numbness was like
Speaker:three months after or whatever.
They were just wrong about that.
Speaker:The urgent care record was mainly
like, it said hand and wrist.
Speaker:So they were like, "Well,
Speaker:there wasn't an elbow issue." And
there wasn't a hand issue because
Speaker:the defense doctor decided to
just go full on it was wrist.
Speaker:And the reason that the defense doctor
decided to try to thread that needle is
Speaker:because her wrist wasn't really
symptomatic after ... I mean,
Speaker:her wrist hurt because she fell,
Speaker:but it wasn't part of her ulnar nerve
damage and it wasn't persistent and it
Speaker:wasn't really a huge part of the case.
Speaker:And so his hope was that he was going
to stroll in and just say, "Well,
Speaker:the only thing wrong with her was her
right wrist. It says that right here in
Speaker:the urgent care record, it does not.
" That was their focus at urgent care.
Speaker:So that's the only thing that
was wrong. That got better.
Speaker:Everything else that she's experienced
is probably due to typing too much or
Speaker:something like that.
And so that was the approach. In fact,
Speaker:he said at urgent care, I didn't even
care enough to put her in a splint.
Speaker:And by the way, he was wrong
about that. And this is where.
Speaker:Just knowing the record pays
off, right? Just knowing.
Speaker:Let me jump in and ask you,
Speaker:because I'm hearing you say that
you knew that this defense doctor
Speaker:had multiple errors in his report.
And so I guess the question is,
Speaker:depose that doctor or not.
Speaker:Yeah.
Speaker:So knowing that you had these punches
that would land, what did you do?
Speaker:Depose or save it for trial? Saved.
Speaker:It for trial.
Speaker:Did not depose them.
And how'd that work? It.
Speaker:Worked out amazing. And it was a
little squirrely as it is to do that.
Speaker:The big benefit to deposing is you
know what they're going to say.
Speaker:You've got it locked in and so on.
And there was progression over time,
Speaker:but we could see that progression in the
reports because there wasn't just one
Speaker:report and she was continuing to treat
while we were litigating this case.
Speaker:So her final surgery was like
a month before deposition.
Speaker:So we were still figured out as we
went too. But his initial report,
Speaker:he hadn't even examined her at that
point. It was a records review.
Speaker:And then he supplemented
and then he amended,
Speaker:I think if you call it something
different each time, then it's justified.
Speaker:But it was like all these
different reports and you
could kind of see where he's
Speaker:headed over time because
at first he was really like
Speaker:deferential to the surgeon. He's a
colleague of the surgeon at the same
Speaker:practice, by the way. Yeah.
Speaker:And I read that. And I mean,
that's sort of crazy. Yeah.
Speaker:Tell the listeners a little bit about,
expand on that a little bit more.
Speaker:And I'm curious about if you elicited
concessions from the defense doctor,
Speaker:and we can name them, it doesn't matter.
Speaker:If you elicited concessions from the
defense doctor that they respect the
Speaker:treating doctor,
Speaker:and did you differentiate the
ethical obligation a treating doctor
Speaker:has versus an IME doc? That's
probably a dumb rhetorical question,
Speaker:but tell the listeners more
about that. But yes, I.
Speaker:Did do those things. And we had
also sent her, because I was, again,
Speaker:a little bit worried that the jury might
conclude that the surgeon was at fault
Speaker:for some of this. So we had
sent her for another opinion,
Speaker:an additional opinion with another hand
surgeon who's unaffiliated with that
Speaker:practice.
Speaker:And we had that record in through
our surgeon and through our physical
Speaker:rehab doc. And so it
was pretty well covered.
Speaker:And one of the things that I did before
the defense doctor testified is because
Speaker:we could tell from his
reports what direction he was
headed, He wanted to blame
Speaker:a condition that was actually
diagnosed in her left hand,
Speaker:but some of the medical records had
gotten it wrong and said, right. So again,
Speaker:we've got our issues just
like every other case, right?
Speaker:You always do focus on those issues we're
worried about a lot as we're prepping
Speaker:trial.
Speaker:And so this guy was going that direction
and with our own doctors, I'd say,
Speaker:"Okay,
Speaker:so you concluded it was not Debutrins
or Debutrins." I still don't know how to
Speaker:say it correctly. And this other doctor,
you aware of what his opinion was.
Speaker:And then the second opinion doctor,
you aware what his opinion was,
Speaker:which doctor thinks is Deputrins? "Oh,
Speaker:the defense doctor and which doctor was
paid by Target to testify?" Oh, okay.
Speaker:And so before the jury ever heard
him speak, we're setting that up.
Speaker:And then when he's there,
Speaker:I guess we weren't entirely sure.
So the answer to the question about
Speaker:whether we knew there were errors in his
report, I would say from his reports,
Speaker:there were maybe some things
that were wrong here and there,
Speaker:but what we could see from the reports
was that he was becoming more adversarial
Speaker:and more specific that he was going
for it. Whereas at the very beginning,
Speaker:we kind of thought, "Oh,
Speaker:this guy's not going to be that bad."
He's actually very deferential to his
Speaker:colleague, which we really
wanted and appreciated,
Speaker:and maybe he's not going to come
out all knives out at trial,
Speaker:and he sure did. He sure did.
Speaker:I was curious because I
saw your post about it.
Speaker:Talk to us a little bit about his
demeanor and this issue about having to
Speaker:finish a question, a rhetorical
question with the word correct.
Speaker:Yes. Okay. So as you
know, leading questions,
Speaker:we're allowed to ask leading questions,
Speaker:and unless you're trying to get
points in a mock trial in law school,
Speaker:you're probably not going to
say correct after everyone.
Speaker:And I actually coach
clients. I'm like, "Listen,
Speaker:don't be that person who sits
on the witness stand and says,
Speaker:Was that a question? Don't be that person.
Speaker:We want people to like
you. So just roll with it.
Speaker:The questions sound different on cross
and they sound on direct and that's part
Speaker:of how I prepare my people.
Speaker:No one told him that because when
I was crossing him, honestly,
Speaker:he just seemed like he wanted
to stab me. He was like, really,
Speaker:I thought he was pretty hostile.
Speaker:And so when I would ask a question that
didn't end with correct or something,
Speaker:he'd just stare at me. And that
moment of silence we just had,
Speaker:longer than that, longer than that.
He would just stare at me.
Speaker:And so then I would say,
Speaker:"Correct." And then he
would answer the question.
Speaker:So it was interesting. I've had
someone be that consistent about that.
Speaker:I got to tell you a funny war story
because this is a great war story.
Speaker:So I'm in Boulder trying a case. I
forget who the defense doctor was,
Speaker:and I ask him a question and I
don't say correct. And he said,
Speaker:"Was that a question?" And I said,
"Well, I think it was a question.
Speaker:Yes." And he's like,
"Okay." Then he answered it.
Speaker:And then the next question I asked,
I asked the question and I said,
Speaker:"Correct?" Like that at
the end. Yeah, exactly.
Speaker:It was so funny and the jurors hated him.
The jurors hated him just like yours.
Speaker:I mean, obviously it was a question,
Speaker:but I get how witnesses sometimes feel
like that's a win for them to try to
Speaker:point that out, but I don't think it
goes over the way they think it does.
Speaker:And so there was that. There
was also just like anger in him.
Speaker:You could tell because he
was being corrected about
getting things in the record
Speaker:wrong. There was a
splint. I showed him that.
Speaker:I showed him where they issued a splint
and he thanked me for that correction.
Speaker:And then I had him.
Speaker:Finish a sentence- Hang on.
Speaker:I want you to set that up a little
bit more because I'm just curious.
Speaker:So you know in the record he says it
couldn't have been that bad because they
Speaker:didn't issue a splint. So how did
you set that line of questioning up,
Speaker:if you don't mind going into the weeds
a little bit on that issue? Sure.
Speaker:So I just reminded.
Speaker:Him of what he had said on direct and
that he said that she was not issued a
Speaker:splint at urgent care. And to him,
Speaker:that was an indication that her
injuries weren't that serious.
Speaker:And that was one of the bases for his
opinions that he shared and so on and so
Speaker:on. And as you do, you do that setup,
right? And then I just asked him,
Speaker:and by the way, at this
point in the trial,
Speaker:we're pretty late in the trial at this
point, and I think I mentioned before,
Speaker:but my wife helps me with these trials
and she's sitting there watching the
Speaker:jury, right?
Speaker:And we bring this big king flip
chart and we intend to use it for
Speaker:opening and closing and so on
because I think it was maybe Tim
Speaker:Galusi on one of your episodes mentioned
that when the teacher writes something
Speaker:down, so do you.
Speaker:And I think that works really well with
these flip charts and opening and close.
Speaker:And I'm sure people use them when they're
Speaker:working with witnesses and whatnot.
But these jurors in particular,
Speaker:they had this little monitor in front of
them in the jury box in federal court.
Speaker:That's one thing that's super cool about
federal court is one HDMI plug gets you
Speaker:just screens everywhere. And the
jurors love that and you could see,
Speaker:and Jennifer caught this,
Speaker:that sometimes we would be talking about
something or referencing something in
Speaker:the record and they would glance down
at their screen to see if it was there,
Speaker:right? So they wanted more. So we
start putting everything on screens.
Speaker:We start putting everything on screens
and ended up using the ELMO for
Speaker:things that we were going
to use flip charts for,
Speaker:but this was an excellent example
because crossing this doctor,
Speaker:before he even answers the question,
Speaker:we've got a call out using trial
pad and we've got a call out
Speaker:from the record showing that a splint
is in the supplies and then we've got a
Speaker:call out showing that a splint
was given to her and used.
Speaker:And then he kind of thanks
me for the correction,
Speaker:but there was another major correction
that was made and that was in his direct
Speaker:examination,
Speaker:he read half of a sentence in a record.
And he's actually reading the record as
Speaker:he's answering the question and what he's
reading is something from that second
Speaker:opinion doctor we got
who says, "At this time,
Speaker:I don't recommend future surgery,
Speaker:but as time goes on, if
her symptoms continue,
Speaker:then it's going to be very likely that
she's going to need this and this and
Speaker:this and this. " And that was the year
before trial and she's still in symptoms.
Speaker:And so what he reads is,
"I'm not recommending future
surgery." And he stops.
Speaker:And I was like, "Uh-uh, that's not
the whole..." So I get up there,
Speaker:and this was the theatrical moment
where I'm like, "Now, doctor,
Speaker:on direct, when you were testifying,
Speaker:and Target corporation attorneys were
asking you about this and this and this,
Speaker:you testified about this second opinion,
Speaker:you respect Dr. Sashar, it was
the second opinion. You know him,
Speaker:you're affiliated in the past no longer
and so on and just really talked this
Speaker:guy up. And then you actually read from
the record. So this wasn't from memory.
Speaker:You were reading this in
front of the jury on direct.
Speaker:You only read half of a sentence and
I'd like you to finish that sentence for
Speaker:us." So I call it out, it's on their
screens, they're reading along with him,
Speaker:he finishes the entire sentence
and the whole time he's doing that,
Speaker:I'm kind of like giving
a look to the jury.
Speaker:And I felt like that was one of those
times in the trial that's maybe a little
Speaker:bit rare where you feel full license to
get a little dramatic and kind of just
Speaker:call out with your eyes that something
amazing is happening right now.
Speaker:And then in the close,
Speaker:I was able to circle back to that and
this is one of those hallway closed
Speaker:editions, right? Because again,
Speaker:this happens like an hour or two before
I'm closing. And I'm telling the jury,
Speaker:if we had not pointed that out,
Speaker:you would not know because they
didn't want to give you that piece.
Speaker:Why would that be? And knowing the
record, right? You got to know.
Speaker:You got to know the quote.
Speaker:To say that that is an epic moment is
the understatement of the year. I mean,
Speaker:I've never had that great fortune to
have a witness walk into that punch.
Speaker:Holy cow. And as you're
telling that story,
Speaker:it's almost like in my mind I'm role
playing all the different ways I would
Speaker:mess up landing that punch or taking
that low hanging fruit by being
Speaker:too aggressive, too in the doctor's face,
Speaker:asking is there a particular reason
you chose to not read the ... I mean,
Speaker:I don't even know. Oh yeah.
Speaker:Yeah. It's just.
Speaker:Such an amazing thing. Holy cow, man.
Speaker:But go back to what you said about
knowing the record. So let me ask you,
Speaker:when that doctor stopped, did you
instantly know like, wait a minute,
Speaker:he didn't finish the rest
of the sentence? I knew.
Speaker:It in the moment.
Speaker:Wow.
I.
Speaker:Knew it in the moment. I was like, no,
that's not the whole quote. I mean,
Speaker:it's important, right?
Speaker:And that's not like some super remote
piece of the record that you're like, "Oh,
Speaker:this happened three years before she fell
and I don't remember exactly what was
Speaker:said." No, this is important stuff. This
is stuff that we sent her out to get.
Speaker:So of course we know what's in it,
Speaker:but I think it's a good lesson for
knowing the record in its entirety because
Speaker:little things like that,
right? If you don't know,
Speaker:they can definitely get away with that
live in trial if you have not deposed
Speaker:them, which I still feel like,
Speaker:imagine all of that happening
in deposition and how much
better he would've come
Speaker:off live in front of the jury, I think.
Speaker:Yeah. We would've issued a supplemental
report, correcting- Actually,
Speaker:it doesn't change my opinion at
all. I actually knew all of that.
Speaker:Right, right, right. Exactly. It
would've been like addendum number six,
Speaker:but I felt like even though there's a
lot of comfort to be had in deposing in
Speaker:this case, it would've
helped him more than.
Speaker:Us. I mean, I got to be honest,
Speaker:I personally have kind of come to the
world where I don't really like deposing
Speaker:defense doctors that often,
Speaker:unless it's just going to be to confirm
bias stuff because it costs money,
Speaker:then they kind of know
where you're coming from.
Speaker:And I much prefer to just sort of have
them not know what to expect out of me
Speaker:because I feel like maybe they're a
little bit nervous and I don't know,
Speaker:it's just obviously it's a case by
case situation and in your case,
Speaker:obviously it worked out brilliantly.
So final result in this case,
Speaker:$2.7 million for your client.
Talk to us a little bit.
Speaker:I know we talked beforehand and we're
coming up at the end of our time here.
Speaker:What you took away about the
importance of either using flip
Speaker:charts or using ...
Speaker:You mentioned that the jurors in federal
court have little monitors and that if
Speaker:I'm hearing you correctly,
Speaker:they almost expected throughout the
trial to see things on that monitor,
Speaker:backing up what's being said. So how
did your experience in this trial impact
Speaker:how you will try cases in the future?
Speaker:We didn't pivot, and I
was proud of us for that.
Speaker:We pivoted to using those
screens for everything,
Speaker:and I felt like it was really
effective closing argument.
Speaker:Instead of flip charts,
Speaker:we used an ELMO when I was just
writing just like overhead projector,
Speaker:your teacher kind of thing.
And I felt like it landed super well and
Speaker:it really worked well. So I
was glad we made that decision,
Speaker:but we also went over the verdict form
and there was testimony throughout our
Speaker:case to try to kind of set up and
distinguish physical impairment from pain
Speaker:and suffering. And obviously that's
important in part because CAPS.
Speaker:So there was testimony that was very
detailed about the impairment maybe even
Speaker:being the worst of it for her,
despite pain all the time.
Speaker:And all that impairment affected her.
Speaker:And then that was all rehashed during
the close and we went through the verdict
Speaker:form on the ELMO and I showed them
the lines and it's important that this
Speaker:go here and this go there. And
Speaker:it says on the verdict form, don't put
physical impairment damages on this line,
Speaker:they go below.
Speaker:And then we got a jury question while
they were deliberating. The first jury
Speaker:question we got, you'll love this,
was, "Can we have a calculator?".
Speaker:Oh my.
Speaker:God.
Speaker:Never happened.
Speaker:To me. Oh yes, here's the calculator. And
Speaker:then the second jury question was a
little more sad. It was, what do we do?
Speaker:Where do impairment damages go?
Speaker:But it didn't say like
impairment of quality of life.
Speaker:It didn't say physical impairment.
Speaker:So we're in federal court and the
judge that we're in front of was
Speaker:kind of like already prepared an answer
in advance and then we're just arguing
Speaker:with him about why he should not
use it. And his answer was- And.
Speaker:Always works out well in federal court.
Speaker:I know, right? And his
answer was, of course, well,
Speaker:his answer was just like that physical
impairment line is for anything you
Speaker:didn't include on non-economic
damages, which absolutely.
Speaker:I disagree wholeheartedly
with that's not the law.
Speaker:And I feel like that really hurt us
because then the entire non-economic
Speaker:damages award or the entire ...
Speaker:We got economic damages and we got pain
and suffering and zero for physical
Speaker:impairment because they believed they
had included it in the non-economic.
Speaker:And we know that because they followed
basically what we asked for on the per
Speaker:diem arguments.
Speaker:So.
Speaker:For sure that they agreed that
there were physical impairment.
Speaker:Damages, but they put
them all on one line.
Speaker:And I have also been the recipient of
zero and impairment and like one and a
Speaker:half million in non-economics. So I feel
your pain and it doesn't help. I mean,
Speaker:the non-economics include impairment
in the quality of life. They do,
Speaker:which we never.
Speaker:Said. And maybe that was a
mistake, maybe it wasn't,
Speaker:but we never said impairment of the
quality of life because we didn't want to
Speaker:confuse them on that subject.
So I never used that phrase.
Speaker:I used pain and suffering
for non-economic, and I
used physical impairment,
Speaker:and I tried to distinguish impairment
from non-economic at every opportunity.
Speaker:But if had it to do over, right?
What I would do, of course, knowing,
Speaker:because you never know exactly what
a jury's going to get hung up on,
Speaker:but it does make you wish you had a time
machine. So you could go back and say,
Speaker:"Well, it's really important. Hear
me on this. " Physical impairment,
Speaker:physical impairment, because we
couldn't get a definition in, right?
Speaker:But physical impairment,
Speaker:this is the testimony you
heard of physical impairment
that goes on this line.
Speaker:I think we can get away with that.
Speaker:Yeah. I've just come to endorse
the Cheney Galuzi that impairment
Speaker:is the physiologic change of the human
body because then that's like the
Speaker:cause and the effect is the
impairment of the quality of life,
Speaker:but what they're ... And it's still
so difficult to do, but it seems like,
Speaker:at least right now,
that's where I'm landing.
Speaker:So two more quick things since we're
out of time that I wanted to cover.
Speaker:The first is, because I know the answer
to this question and it's amazing,
Speaker:tell us about the pre-suit offer
that you turned down to go to trial.
Speaker:We turned down 500,000. I mean, listeners,
Speaker:they turned down $500,000 on a slip and
fall case and went to trial in federal
Speaker:court. Just absolutely amazing.
Speaker:And the last little point that I
wanted our listeners to consider,
Speaker:because you've talked about the
importance of using visuals throughout the
Speaker:trial.
And I would just encourage people,
Speaker:if they have a CVN subscription
or to go on YouTube,
Speaker:Mark Lanier is the freaking
master at using Elmo in cross.
Speaker:So he goes through and just does these
little diagrams and it's just like you
Speaker:said, it's just like a teacher,
Speaker:but I feel like jurors are so used
to seeing the teacher do that during
Speaker:cross.
Speaker:It was really effective and it just
makes me think that flip charts are
Speaker:underutilized throughout trial.
Speaker:And that's a big sorry
De Lamont thing too.
Speaker:Anybody that's done anything
under her, she's huge about that.
Speaker:So I'm going to endeavor to use more
flip charts throughout trial. Well,
Speaker:I think the.
Speaker:Question about whether you're using a
big fancy flip chart or an Elmo with
Speaker:screens is just the location of
screens. Yeah. It's just like,
Speaker:what's more visible?
Speaker:The flip chart's huge and the flip chart's
really nice and the flip chart I feel
Speaker:like maybe feels a bit more authentic or
something when you're using it as like
Speaker:teachery. It's like, yeah,
Speaker:it maybe reminds people
of education in a way,
Speaker:but then also just having
screens everywhere.
Speaker:And if you do have screens everywhere.
Speaker:Then maybe that's the option to
take. Yeah, the magic's thought.
Speaker:I like flip charts because it
takes a while to write on them,
Speaker:so that gives jurors the time to
process what you're doing. Yes. Well,
Speaker:Vern, thank you so much.
I mean, this has flown by.
Speaker:We could go for hours, obviously.
We could talk- Absolutely.
Speaker:I know I could.
Speaker:You don't have any trouble getting
people on here talking about their trial
Speaker:wins, I'm sure, right?
Speaker:Well, no, this one in
particular, it's just,
Speaker:I love talking trial strategy
because it's just so fascinating,
Speaker:especially when it works out.
I mean, this was a home run,
Speaker:this was an amazing result and I'm
sure you're just itching to get back.
Speaker:Yes, absolutely. And thank you so much
for having me on here to talk about it.
Speaker:It's awesome to do this,
Speaker:especially given how much I have leaned
on others doing work like this to
Speaker:prepare myself. It's been a huge help.
Speaker:Well, thank you for coming on.
Speaker:And until next time when we have
another person eager to come on,
Speaker:and I'm just going to throw it out
there, we've been following the listserv.
Speaker:There have been amazing verdicts
after amazing verdicts because the
Speaker:tide has changed. We don't really
face these tort rooms. I mean,
Speaker:it's still out there, but it's
not this pervasive problem before.
Speaker:And it's a lot better to be a plaintiff's
lawyer now than to be a defense lawyer
Speaker:10 times out of 10, but it's a good
time to be a plaintiff's lawyer.
Speaker:And every one of those
verdicts, well earned and just.
Speaker:And that's what's great about this work.
That's what's great about this work.
Speaker:It's awesome to see that coming through.
Speaker:You get warm feelings in your heart
because you know that there's some justice
Speaker:being done and that's amazing.
Speaker:Yeah, it's great.
Speaker:Just take a moment of gratitude for the
amazing fortune we have to be able to do
Speaker:this kind of work. I mean, I love
my job. I can tell you love yours.
Speaker:I love what we do and thanks for
that. Thanks, Vern, for coming on.
Speaker:Really appreciate it.
And I Until next time,
Speaker:we'll be back with another episode of
the Colorado Trial Lawyer Connection
Speaker:Podcast. Thank you for joining us.
Speaker:We hope you've gained valuable insights
and inspiration from today's courtroom
Speaker:warriors, and thank you
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Speaker:Make sure to subscribe and join us next
time as we continue to dissect real
Speaker:cases and learn from
Colorado's top trial lawyers.
Speaker:Our mission is to empower
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Speaker:helping us to become better trial lawyers
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Speaker:Keep your connection to Colorado's
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