What I Learned from a Drunk Juror at the Esso Club in Clemson

The Clemson football team had the NC State game handled by halftime so my wife and friends convinced me that a walk to the Esso on this beautiful afternoon was a good idea. Trying to enjoy the time my wife and I have together with her out of nurse anesthetist school now and no kids, I obliged. The ladies were quick to try and find a restroom not made of plastic and almost full, while the men were expected to work through the crowd at the bar for adult beverages. Having attended Clemson, I was familiar with the Esso and strategic spots to approach for the best leverage and line of sight with the bartender. Not to mention, I could now afford to hold out a $20 bill.

As I approached my honey hole of a spot at the bar another gentleman in front of me turned around. I am about 6'2" and I had to look up a good many inches to him. He had apparently been there all day for this 3:30pm kick off based on the swaying motion I observed as he double fisted two orange Bud Lights. I was unclear of his intentions as he shouted and pointed at me saying, "I know your face!". I made some comment that I have a familiar face and he then asked if I was in sales. I said no and continued to try and get the drink order in. Then he said, "What do you do then?". When I said, "I am a lawyer." That seemed to help him clear all the clouds in his head and put it together as he shouted, "You're a *& liar!" Well, alcohol or no alcohol those are usually words that help escalate things and his three friends turned around and I felt my wife push past me in between us and start to divert the conversation.

We were both Clemson fans and I can not stand to see in fighting. I was relatively calm for the situation and simply asked why he would say that. He went on to explain in a round about way that he was a juror member on a recent trial I had in Westminster Magistrate Court in Oconee County where my two clients were liars. My bell went off then and I remembered his disinterested looks, attempts to raise my voice to wake him up during the trial, and total apathy in the whole trial process he was invited to participate in that work day. 

Realizing the gold in this opportunity to talk with a juror after a trial where inhibitions were low and honesty high, if not unfiltered, I asked what he disliked about the trial. He listed several things:

  1. The fact that he had to miss work to be there;
  2. My clients looked like they were liars; and
  3. I was an attorney willing to lie for them but in an educated way.

I tried to get him to be more specific but he could not remember the facts of the case or anything about the case. (It was a motor vehicle collision where the at fault driver pulled out into traffic and then immediately backed up into my clients after realizing he pulled in front of someone else. The insurance company for the at fault driver played hardball and made offers lower than the emergency room bills so we had to try the case). Plus if you have ever been in the Esso during a game, it can be difficult to carry on an indepth conversation. 

As I tried to pull more information out of him to improve my future chances of not being called a liar simply because I am an attorney, he finally softened up a little bit and said: "You know, I will give it to you though. You made me think. When I came in and sat down I immediately knew your clients were lying. (He made this decision prior to any parties being named plaintiff or defendant or hearing any attorney speak). He then said, "After you presented the case with your 'silver tongue', you had me thinkin...but then I just knew your clients were lying." 

I thanked the man for his feedback and bought him another orange Bud Light to go with the two in his hand. He quickly emptied one to make room for the extra and said I wasn't that bad after all. He told me not to worry because I still got paid and I quickly put that myth to bed to help him appreciate the generous orange Bud Light he had just received from the contingency fee lawyer that the jury found in favor of the other party. Which in laymen's terms means that lawyer (me in this case) didn't get paid or reimbursed for any time and/or costs in the case.

It gave me a fresh outlook at my cases and reminded me;

  1. We all are judged by our covers regardless of what the content may be;
  2. First impressions in trial are hard to shake; and
  3. You can't win them all (or over) but you can try the best case for your clients and still be called a liar by a drunk at the bar. 

South Carolina Medical Professionals Cheat Sheet to Legal Depositions

I am a lawyer not a doctor. Doctors are medical professionals trying to help people get better by diagnosing, treating, and preventing. When we step outside our profession and into another professional arena we know very little about, it can be confusing. No matter how much reality television we watch, it may not carry over to the realities we live in.

In the short time I have been an attorney, it never ceases to make me laugh when I go to a doctor's deposition. We, as lawyers, have to ask certain questions in certain ways to meet legal thresholds and adhere to the prevailing rules of evidence, which makes those questions sound verbose, obnoxious, and confusing.

  1. "Doctor  ______, is it your opinion to a reasonable degree of medical certainty that it is more probable than not, that my client's disc herniation were caused/aggravated/ and/or made worse from the motor vehicle collision/slip and fall/dog bite?"
  2. "Doctor ______, based on your education, observations, and medical treatment of my client, was it medically necessary to send them for physical therapy/diagnostic testing/pain management as a result of the motor vehicle collision/slip and fall/dog bite?"
  3. "Doctor ______, do you have an opinion to a reasonable degree of medical certainty as to the permanent impairments my client would be assigned under the AMA guidelines?"

It's important for medical professionals to understand that Plaintiffs have the burden of proving their case by the preponderance of the evidence. The most common example is the tipping of the scales of justice ever so slightly to provide an imbalance that would warrant the "preponderance" part, "more likely than not". (David Swanner of South Carolina Trial Law Blog gives several good examples).

Therefore, medical professionals don't have to know 100% one way or the other. They just have to give an opinion (based on a reasonable degree of medical certainty) whether an injury or aggravation of a pre-existing injury is "more likely than not"/ "more than a 50% chance"/ "ever so slightly tips the scales" was caused or directly affected by the trauma.

Plus, know what you charge for your office visits. You are a professional and are running a business. In the 100 or more medical depositions that I have taken, not one medical professional has been able to tell me what they charge per office visit. That could be one explanation in the health insurance and medical professional struggle now. How can you talk about lost profits and exorbitant prices when you have no clue about money, fees, or service costs directly related to services rendered?

This is the typical response cut and pasted directly from an recent examination of my client's treating physician's deposition:

I can't make an assessment about causation.  When I see a patient or take care of patients, I'm not really thinking about, you know, is this going to go to a legal situation. I'm mostly concerned about the patients and their well-being so I just go what they tell me, by the history.  So the answer to your question is:  I don't know.  I can't say with 100 percent certainty that the motor vehicle accident caused the herniated disk.

I asked the questions previously discussed. Do you have an opinion? Not can you tell me for certain. Plus, if you were truly concerned for the patient, you would also be concerned about the financial stress and misery of undergoing medical treatment and being personally responsible for the medical services you have rendered to them unless you agree that someone else affected their pre-existing injury or caused new injuries.

Tips for Young Lawyers on Being Trial Lawyers

Dave Swanner, author of South Carolina Trial Law Blog, has a very resourceful and informative article about "How to Be a Better Trial Lawyer". In this article he cites 8 great points ranging to involvement in local and national trial organizations to learning anatomy and physics.  I think if you take to heart all of his points you have an excellent guidepost to kicking off your trial career.  I would only like to add several points that I have picked up in the past three years that have helped me:

  1. Keep Detailed Records of Values- I use an Excel Spreadsheet indicating the client, type case, insurance agent, insurance company/defense attorney, settlement amount, attorney fees, and month in which the settlement, or trial, occurred.  The more detailed your records the better you can understand the other side.  There are some attorneys out there that let a case go if a law suit and eventual trial is a strong possibility.  You don't want to be lumped into that category. Keep an eye on verdict reports and SC Lawyers Weekly.  Numbers are also more important to your partners and managing attorneys come review time.
  2. Find Your Passion-Then funnel it into focus for your litigation. This is easy for me because I hate insurance companies for what they did when I was sick with cancer and what they did to my mother when she was dying with lung cancer.  I draw from that hatred, which is not healthy, and remind myself that I am the only voice and advocate for my clients.  They have come to me because they have been injured, wrongfully accused, misinformed, taken advantage of all their lives, and rest all their confidence on my shoulders.  What a great feeling!
  3. Communicate Without Legalese- You have to speak and explain things like a normal person with your clients, the jury, and the court administrators and personnel.  You can use all those fancy words with opposing counsel and corporate clients but the jury is made up of ordinary people in the community, often times not lawyers or professors.  Remember the jury's role from your law school education? As George W. Bush would say, "They're Deciders! And they decide things."
  4. Keep Templates from Previous Trials/Work-Issues you faced in your first trial will most likely be issues in your subsequent trials. Evidentiary issues on Hearsay and Expert Testimony seem to always crop up.  Likewise, pretrial and post trial motions you make can be similar.
  5. Be Able to Find the Courtroom-I was late to a Minor Settlement Hearing because I failed to do just that.  I was already running late and failed to get directions but assumed I could find downtown and thus the Courthouse. It was in Laurens County where the Courthouse doesn't hold court but had been moved out on the bypass into an old shopping center.  By the time I got there I was stressed, flustered and angry at myself.  A lot to carry into a courtroom in front of a judge. 
  6. May It Please the Court-remember the logistics of the courtroom and certain formalities. The party with the burden of proof sits closest to the jury, know the number of jury strikes each side is allowed, if you're the plaintiff will you be allowed the final word after closing, etc.   

I think Dave's tip #7, is the most important one of all.  You can't call yourself a trial attorney if you have never done a trial. 

Social Networking- Meet Defense Attorney

When you are on the front lines you always tend to learn quicker than when you are on the sidelines. However, if you aren't prepared every time, each time could be like the first time.

My college aged client performed brilliantly in the deposition we had today and I felt that the account they gave was believable, sincere, and articulate. I prepared my client for questions on the pleadings (specifically the Complaint), on potentially incriminating medical records, and on deposition etiquette in general. What I forgot to remind them of was the potential to be asked questions about photos, sometimes unflattering, they had posted on various social networking websites, like MySpace, Facebook, Bebo, Orkut, Friendster and Cyworld.

Brian Dykstra, a senior partner at Jones Dykstra & Associates, wrote an interesting article for Law.com entitled "Social Networking Pitfalls".  Although he provides more technical reasons social networkers should be cautious, he proposes this question, "If someone I didn't know called me on the phone and asked me for all this information, would I give it to them?" 

I think another important point is to remember your audience: anyone with a computer and Internet access! Don't put anything up your Mama wouldn't be proud of.