Author: sgray

“What about the next person?”

A few weeks ago, a family member was injured.

On the way to get a coffee, they tripped and fell on uneven sidewalk.

It did damage: bleeding, bruising, and a concussion. And there is still a scar.

It is a highly trafficked area. And, after investigating, we learned that multiple people had been badly hurt by that same uneven sidewalk.

Ridiculous.

So I asked the family member for permission to pursue it.

But there was hesitation.

Pursuing a personal injury case is not an easy decision. You expose yourself to scrutiny, and you have to deal with attorneys.

It’s a pain.

But what is not fair is the stigma that goes along with it:

You become one of “them.”

You know who I’m talking about: the people who file lawsuits.

The people responsible for rising healthcare and insurance costs.

The people trying to get something for nothing, like in the McDonald’s Coffee Case:

A 79-year-old woman, who suffered 3rd degree burns in her pelvic region, hospitalized for 8 days, and 2 years of medical treatment because McDonald’s did not take safety seriously.

That’s right: McDonald’s knew their coffee was too hot; their own documents showed that more than 700 people had been burned by their coffee.

And when she tried to settle her case for $20,000 to cover her medical expenses, guess what McDonalds did?

They refused.

Frivolous lawsuit, right?

When my family member hesitated, it was not because they did not want to deal with me (despite that being a completely legitimate reason 😜). It was because of Corporate America’s (i.e., tort reform’s) false messaging.

So I asked them: “What about the next person?”

And they agreed to let me take a shot.

One week after I got involved, the sidewalk was fixed.

There will be no next person.

After a frustrating mistrial last fall, a colleague sent me an uplifting note reminding me why we do this work:

“It wasn’t the FDA that brought down big tobacco, it was trial attorneys. It wasn’t Congress that on its own put in regulations about tractor-trailer drivers—it was trial attorneys beating the hell out of trucking companies in the courtroom that got those laws passed.

The government does not have the resources to protect the public or the consumer—we are it. What we do should not be looked down upon, but should be honored. Are there bad apples? Sure. But the majority of us go to war every day, not because we are motivated by lining our pockets, but because we care about our communities.

This is a fight we need to win—it is a fight that will be hard, long, and like any war, we will have losses along the way. But at the end of this fight, we will win because the law is on our side. Society has just lost sight of why tort law exists in the first place—it is there to protect, to make things safer, to not shift burdens, to hold those who make bad decisions fully accountable and responsible for those bad decisions.”

We are safety attorneys.

“If a sign at the entrance to a zoo says ‘come see the elephant, lion, hippo, and giraffe,’ and a temporary sign is added saying ‘the giraffe is sick,’ you would reasonably assume that the others are in good health.” N.L.R.B. v. SW Gen., Inc., 137 S. Ct. 929, 940 (2017) (Roberts, J.).

That is the analogy Chief Justice Roberts used when explaining the term: expressio unius est exclusio alterius, which means “expressing one item of [an] associated group or series excludes another left unmentioned.” Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 80 (2002).

I have used Justice Roberts’s Zoo Animal analogy when making a statutory construction argument, not just because it was fun, but because it helped me make my argument.

Effective writing is when you communicate your argument clearly so that the reader does not have to work to “get it.” And analogies, like Justice Robert’s Zoo Animal analogy, help with that.

(Analogies also help when speaking to juries, but more on that in a later post).

Takeaway: Analogies help, so use them.

Last fall, Ryan Walker and I tried a personal injury case, and when moving an exhibit into evidence, the Judge unintentionally gave us one of the best compliments we have ever received:

“Commonwealth (aka, the Prosecution) Exhibit 1”

Liability (and the defense’s failure to admit liability) drives damages.

Why did a Texas jury come back with a $337.5 million compensatory and $7 billion punitive verdict against Charter Communications last summer for the murder of an 83-year-old woman in her home by a Spectrum cable technician?

Why did a Connecticut jury come back with a $965 million compensatory and $473 million punitive verdict against Alex Jones and his company Infowars last fall for falsely claiming that the Sandy Hook mass shooting was staged as part of a government plot to seize Americans’ guns?

What drove those numbers? Just the damages? OR the defendant’s conduct (in addition to the damages)?

Harry Plotkin, one of the nation’s most respected trial consultants, explains: “How else can you explain the very real phenomena that civil verdict awards . . . tend to be much lower when liability is admitted and exponentially higher when liability is disputed in trial? Part of the reason is that admitting liability seems so responsible to jurors. But the bigger reason is that when jurors don’t hear WHAT a defendant did wrong, they don’t get upset.”

Your client is at trial because of the defendant’s negligence. Make sure the jury understands that. Only then will a full and fair verdict be possible.

As Judge Learned Hand explained nearly 100 years ago, “Juries are not leaves swayed by every breath.”

Take a second to think about that.

Yes, how you frame a case matters. Yes, the evidence the jury hears and sees matters. And, yes, the specific wording you use matters.

But, to win at trial, you do not have to be as polished as Alan Shore:

To win at trial, you have to be you.

You have to care about your case.

And you have to trust the jury to get it right.

One misstep or wrong word will not lose the trial because:

“Juries are not leaves swayed by every breath.”

Jonathan Haidt, a social psychologist, explains: “The mind is divided, like a rider on an elephant, and the rider’s job is to serve the elephant.”

The rider represents reason, and the elephant represents emotion.

Despite our best efforts in the courtroom, the elephant decides the case:

“Perched atop the Elephant, the Rider holds the reins and seems to be the leader. But the Rider’s control is precarious because the Rider is so small relative to the Elephant. Anytime the six-ton Elephant and the Rider disagree about which direction to go, the Rider is going to lose.”

The rider cannot control the elephant. As such, when it comes to making decisions, we (including judges and jurors) subconsciously make decisions based on emotion and then support those decisions with reason. I have seen this time and again in court.

So what does this mean for the trial attorney? To get results in court, you have to be mindful of the emotions in the case and capitalize on them. And if you don’t believe me, listen to Gerry Spence:

“I have said I have no quarrel with the intellect. These words were born of it. I simply do not wish the head to rule every aspect of the human experience, nor feelings to be reduced to some unsavory attachment to the person, something akin to original sin. Moreover, I am not a fan of flabby sentimentality that by its excessiveness mocks honest feeling. But be assured—despite all their protests to the contrary—the decisions of most power persons are rooted in the very feeling they deny. A simple and universal process is at work. We feel first, then decide accordingly. Our decision may be wrong. It can even be spiteful or evil, and we will announce our decision only after we have smeared it with the stuff of the left lobe—with brain-laden, unemotional, cold, linear reasoning. The feeling came first and it was at the feeling level that the decision was made.”

Before I started plaintiff’s personal injury work, I spent a year at the local prosecution office. It was an awesome job. I loved working to make the community safer and helping victims get justice. (And the people I worked with were great: my colleagues, our staff, the police, the defense bar, and the court). And I thought that leaving prosecution meant leaving public service, but surprisingly I was wrong.

Plaintiff’s personal injury, if done right, accomplishes some of the same goals as prosecution: community safety and justice for victims.

“At the end of the day, this case comes down to one question: is safety important in Richmond?

You represent the City of Richmond. You speak for this community.

If you decide for the corporation, you are saying that safety is not important here. That we should leave these signs [holding yellow caution sign] in Henrico [the neighboring jurisdiction], because we do not need them here in Richmond.

But if safety is important here and if these caution signs exist for a reason, then return a verdict that forces the corporation to take safety seriously.”

Those were my last words to the jury in a personal injury case this year. And, thankfully, the jury returned a verdict that forced the corporation to take safety seriously and compensated my client (i.e. the victim) for what the corporation’s negligence took from his health and quality of life.

After the trial, a juror offered me the following feedback: “I can’t speak for others but I did consider sending a message to the corporation about taking safety seriously when we were going through this process.”

So, yes, if done right, plaintiff’s personal injury accomplishes some of the same goals as prosecution: community safety and justice for victims.