CLE Video Transcriptions
So, I’m Gary Burger of Burger Law. We’re gonna have a great seminar today. We’re very excited. We’re
gonna do it in three parts. I’m gonna talk to you about the basics of handling a small personal injury case
where I’ll talk about 20 advanced trial tips which is now 31 with my mom Joanne Burger because I wrote
13, she wrote 18. We kind of put it together. And then I’m gonna do an ethics presentation which I think
of top 10 ethics issues, it’s the most ways that people get complained of, and it’s the most frequent
encountered litigation. So without further ado and I’m just gonna keep going, and if you guys have
questions for me as we go, please raise your hand; this is for you, not for me. My goal in these – and I’ve
done a bunch of them – is not to tell war stories but to give you the kind of things that you can do and
you can take from here. All your materials are in front of you. Everything I’m gonna say is in there, but
I’m gonna add stuff to it too.
So, depending on what kind of practice you have, small personal injury cases can be a very good use of
your time. Some people are a little low to take them because they don’t know quite what they’re doing.
If they have a general practice, some people do them all the time. But they’re really, if you can get the
basics down and know what you’re doing, they can be very profitable and enable you to fully serve your
clients, and I’m gonna get right to it.
So, there are three basic areas. There’s car crashes; there’s slip and falls; and there’s work comp. I’m not
gonna talk about work comp. So, let’s talk a little bit about vehicle accident law, and if you’ve had these
cases. So, to recover against the defendant for negligence, they have to be negligence; you have to show
that the plaintiff was, it was a motorized vehicle being operated on a roadway and it proximately caused
damages. So, when you talked about proximately cause damages, obviously all these are obvious things,
but they’re really, if you handle a lot of these cases, you have very varied situations in there. So, all of
the law and all of the jury instructions basically MAI 17.01, but if ever you’re instructing you want to also
use 19.01 because that expands the proximate cause issue from just proximately caused to, from just
directly caused to directly caused or directly contributed to cause and injured a summon, so always use
a 19.01 when you’re doing that. And that’s because if you have a client with a degenerative back
condition but they’re later injured by this case, the car accident only has to contribute to cause of those
damages. Similarly, if you have multiple wrecks or multiple vehicles involved in the wreck, that’s also
where this goes to because the great Supreme Court case and the comments to use, the notes on use on
MAI which is where, if you instantly want to get the best law in any of these areas, go to the notes of use
in MAI in any of the substantive sections that you need to reference, and that will get you right there.
So, that’s generally in terms of the standard of care and the burden of proof what you need.
I would like to remind everybody. We could wait for some more people in here, but basically remember
that this is for free, and we ask that you give Legal Services a generous donation to pay for this CLE
today. I have envelopes in each of your packet so you can do that, and while we’re in here you’re all
gonna get hopefully an email from me with the direct link to how to contribute to LSCM online if you
didn’t bring your checkbook with you. So, we do ask that you support Legal Services. Dan Glaser, the
CEO of Legal Services, was here for the morning session. We sold out our morning session which is for
free. You wonder how that happened, right? So, we’re gonna do the afternoon session too, and we’re
happy that you’re here.
So, use 19.01. It’s a lesser standard. I just was arguing two weeks ago. I got the judge in a long case to
use contributed to cause, and it’s the right standard in almost all cases, so insist on that. So, most of
your cases you think you’re gonna be on a public highway, but there’s a difference between the
standard of care for a public versus a private roadway. If it’s a public roadway, a driver has to exercise
the highest degree of care, and if you look at MAI 11.02, that’s gonna define your standards of care. So,
on a public roadway, it’s the highest degree of care, and definition of care or negligence is that the
driver must act as very careful a person would do under same or similar circumstances; however, if it’s a
private road, someone only has to act ordinarily careful, and you think that that would happen, but
parking lots are private, they’re not public thoroughfares. So, if you ever have a parking lot case, that’s
gonna be a private roadway or a rural roadway, and many times adjusters are gonna throw that at you,
“Well, it’s a private; it’s only ordinary care, blah, blah, blah. Feel free to climb on in and grab a seat
anywhere, no worries and welcome.” So, they’re gonna throw that at you, but frankly it ends up being
somewhat of a distinction without a difference because if you go talk to the person and you’re deposing
them, I mean, would an ordinarily careful person rear-end my client or blow a stoplight or blow through
a stop sign or something like that. So, there you go. Think about that when you’re doing that. And I’m
gonna reference, there’s a lot of cases cited in here, there’s a lot of references to MAI which is a
shorthand version of getting to the standards and the burden of proof and what you ultimately need to
prove at trial.
So, what kind of negligence are you gonna have? You’re violating a traffic signal; drunk driving; failure to
keep a careful lookout (it doesn’t say proper lookout in the jury instructions, it says careful); failure to
operate the vehicle in a safe manner; failure to ride away; failure to sign a warning; failure to swerve,
slack and speed or adjust when you know an accident’s gonna happen; failure to drive in excess a
vehicle too fast for the circumstances. No MAI says you’ve violated the speed limit. It only talks about
the speed limit relative to the circumstances, and that’s important because when you have bad weather
or you have congested traffic or there are other circumstances around highway traffic construction
which we’re getting into the summertime, it’s construction season, right? So, those are the times where
you have to be vigilant about assessing your level of speed for the circumstances, and that’s what the
jury instruction says. Or, yield them right away to another car pedestrian. Pedestrians and passengers
only have an ordinary care standard; it is not a highest of care degree standard. So, that’s important to
know. Sometimes you may want to assert a per se violation, and the reason why you’d want to do that is
that you don’t have to prove negligence. If you prove a defendant violated a statute or regulation or
ordinance, then you don’t have to say that they’re negligence. They’re automatically liable for the
damages proximately caused by that such violation. So you could look for those ordinance violations in
different places. It’s basically drunk driving or if you violate a red light or that kind of stuff. Now there
are other cases.
Now, there are other cases. I had this up from the earlier thing. I don’t want to distract anybody from
my amazing speech I’m about to give or I’m currently giving. So in this case right here, after this Deck
collapsed and my client was injured. St. Louis County, bless their souls, came out and marked out of
code 60 apartments because the porches were not connected to the walls. So, they violated an
ordinance, and this is the timeline. You want to use timelines where you can. This is a great program to
show a bunch of action or inaction on the part of the defendant.
So, per se violations can be good, but if you’re so far that you got a per se violation, you got great
negligence anyway, so don’t over stress it too much. You can always amend your petition later to a per
se violation if you’re not aware of it in the beginning. Look for BOCA codes, building codes for other
sources of your per se violation.
What if your client doesn’t wear a seat belt and is injured in a wreck? Don’t worry about it too much
because under the statute that I cite in at Page 2, and this speech I’m giving now, the presentations,
grab a seat anywhere, wherever you’d like. No worries. If the defendant puts on evidence through an
expert that the failure to wear a seat belt proximately affected the injuries, you’re only gonna lose 1% of
your damages anyway, and that’s under the statute. They can give that jury instruction, that’s fine, but
doesn’t relieve them on liability. That’s 307.178, evidence of intoxication, so if you have evidence that
the defendant was intoxicated in the case, that’s great, and great evidence, bad for your client, but great
evidence for you, but how do you prove that? Because if it’s a pending criminal matter, you can’t get
that file. So, there’s a couple of ways to do that. One is obviously you look in the police report. Many
times those are references of police reports, but if you’ve done this work, you know we’ve got good
police reports, we’ve got bad police reports. Sometimes the witnesses aren’t in there and that kind of
stuff, so you may not find it there. And the defendant does not put his physical condition into issue by
being sued, so you can’t really get his medical records. In fact, there are a lot of cases that say you can’t.
However, I had been successful in getting medical records like, “What’s the BAC when the defendant
went to the hospital immediately after this incident?” Because I need to get those records, because
under Rodriguez vs Suzuki which is the Supreme Court case that says that if you get to prove, you have
to get a threshold; you need to prove some level of intoxication for that to get into evidence, and if you
do you can. So, there are methods of proof and there are other ways. You can ask him in a deposition,
get right down to it, and if he wants to take the fifth, great! Let him take the fifth because then you get
the jury instruction that says where someone fails to answer a question because of assertive privilege,
the jury is allowed to take an inference that the answer would be against the interest of that person. As
an aside, whenever you have a defendant, who’s in an orange jumpsuit, file suit right away and try to
take that deposition, get him to take that fifth, because then you could really prove a lot of elements of
your case because they’re forced into that situation, and it’s not anything untoward on your part
because they’re in there for a reason and that’s their problem. So, something to consider.
There are two other things in terms of the main issues of the law in auto cases that you need to worry
about. One is if your client doesn’t have insurance in Missouri, you cannot get damages for pain and
suffering for that. You can only get damages for medical, and I think folks probably know this. I frankly
don’t usually take those cases because what I tell clients with that is, “I don’t know if I can really add
value to your case because if you have your medical damages, call the insurance company and try to get
them to pay your medical expenses. I don’t know if I can help.” Now if there’s a case where the medical
damage is extensive and the defendant’s denying liability, then maybe that’s a different issue. So
remember to ask your prospective clients whether or not they have car insurance because that may
defeat your ability to really help them out. Secondly, remember about Billed VS Paid Medical Expenses.
So, under that statute, and Deck is the main case it interpreted that the defendant gets to put into
evidence how much was billed for the medical expenses in the case. Excuse me. The plaintiff gets to put
into evidence and you want to put into evidence about what your medical billed was. The defendant
gets to put into evidence what was paid to satisfy those bills or what remains owing, and under the
statute and under Deck, the judge has a separate hearing to determine those things and then he gives
numbers to the jury.
Typically what happens in practice is that I work out with the defense lawyers and we enter into a
stipulation that the billed medical was this, the paid to satisfy the medical was this amount and the
amount owned is this amount, which can really be good for you if you write the stipulation the right way
because you can costly connect your medical bills to that anyway. Obviously, having that come into
evidence doesn’t help you because juries would think, “Why do we want to pay them more than what
was paid to satisfy the debts? Why would we give a windfall to the plaintiff?” Well, true. One of the
things you can do is this is in the materials but there are some things that I do sometimes is use MAI
2.07 or 34.05. What those do is that they say 2.07 came out of judge in Jefferson County, Judge Kramer
and what that says is that if the jury knows about insurance or it knows that someone else paid
something to satisfy it, one of the damages from the defendant, they’re to disregard that and the judges
to use that later. So, sometimes I offer 2.07 or 34.05 to try to deal that. 34.05 is another way to take
insurance out because frankly whenever you’re talking about medical bills and paid a note, you’re
putting collateral source or someone paying those bills into the case. There’s a bill right now that passed
the House to make it so that the defendants only get to put in “Paid Only” and the plaintiff can’t even
put in the billed amount, but we’ll see what happens to that. Every year there are further what I think is
erosion of our Seventh Amendment Right to Trial by Jury. Everybody talks about the First Amendment;
everybody talks about the Seventh Amendment. There are not a lot of torchbearers for the Seventh
Amendment sometimes which is your Right to Trial by Jury because there’s no contingent of the future
injured that’s out there trying to lobby.
Defendants. What you want to do is you want to identify the right defendants in a case, right? So, was
the defendant driving? This is on Page 3 of the first section of the materials, whether you can listen or
actually you can do both, whatever you like. So, you want to identify the defendants. It’s the defending
of police report, but were they working for someone? Is their employer out there? Did the passenger
own the car and has the insurance? Did the mom negligently entrust the car to a 16-year- old kid and you
have a negligent entrustment claim? So part of identifying the defendants is there’s a couple of reasons.
One is you want to identify the appropriate party, but you want to identify the appropriate insurance, so
if the non-owner is driving, he may have insurance, but the owner of the car may have insurance, or if
it’s rented from enterprise and enterprise has insurance, they’re gonna have a policy too. So, you want
to make sure that you identify all the sources of recovery that you can and put all of them on notice, and
it’s especially true if your damages are gonna exceed the limits of liability of the first person, and
depending on the policies and how they interrelate, one policy will be primary, one is secondary, so they
can stack on top of each other and you’re effectively getting excess insurance, so you want to do that.
If you have a case with a truck, a tractor-trailer, if the truck company puts the placard on the side of the
truck, they’re on hook for the case. For the injuries, there’s a bunch of cases for that. So, if you have a
tractor-trailer involved in an accident, you want to identify who the placard is on the side and that’s
what they’re always saying on the police report, and the federal standards require that. You see these
DOT numbers when you drive around. So, you want to make sure that you identify that because they
have their common carriers, have to have a minimum of million dollars in insurance, and that’s gonna
inform you. Even whether or not they’re an owner-operator trying to get out of responding to a superior
liability as an owner-operator, that still puts them on the hook. You want to identify who they’re driving
for because you may have – this is one of our cases – you may have, you want to sue the common
carrier too. What do they know when they hired that driver? How did they train them? How did they
decide to teach him what to do when a tire blew? Because one of our current cases are teach them
what to do when, to check the tread ware on their tire, that kind of stuff. You always get their hours of
service walks and that kind of stuff, but that’s a little bit beyond this basic stuff.
What if the defendant’s a governmental entity? If they are a governmental entity, they have immunity,
right, whether a municipality or the state. However, they waive their governmental immunity in three
ways: if they are driving a vehicle, if there is a premises liability or dangerous condition land, and if they
bought insurance for the issue, for the negligent issue that you’re suing them for. And, that’s what we
talked about, it’s 537.600, so if they’re driving a car, you can still sue that police officer who was
negligent and injured your client, or the trash truck driver, or whatever other public employee.
Public employees have a lot of other immunity in a lot of other situations, so if you’re pursuing a
municipality and doing that. Look, we’ve cited some cases at the end, we just lost the case in the Court
of Appeals, so making a claim, so this is an evolving area the law whether or not the public employee is
liable as a function of whether they’re doing ministerial or discretionary duties. So, if they’re doing a
ministerial, just following the rules type of conduct, they are liable; if they’re using their discretion, they
are not liable. Some of these cases come out of like a state-owned hospital. If it’s a doctor or surgeon
doing surgery on someone, you can’t sue him. You can sue the state, you can sue him individually;
employee immunity is a separate issue. But, he’s using his discretion. However, a nurse following in the
doctor’s orders is not; she’s just following the rules, so she could be liable and the sovereign could be
liable for that because they’re not imbued with the sovereign powers as the cases like to say or suggest.
What happens when there is no insurance or not enough insurance? So that’s where we have our
uninsured or underinsured claims. So, if the defendant has no insurance at all, you have a claim against
your own client’s insurance company for uninsured motorist coverage. The minimum in Missouri is
$25,000. So, in Illinois, an underinsured claim, you have to arbitrate; you don’t have the right to go sue
the insurance company if they deny it. You’re forced to arbitrate, or there’s a mechanism, the statute
say that they can put it in their insurance policies and most do. Not so in Missouri, right? So, you have an
uninsured claim against your own client’s insurance company. And, then the question becomes whether
that will stack and everybody talks about stack and I put a bunch of stacking cases here, not everybody,
but it’s interesting. So the insurance companies have a limited downside, so they can deny uninsured
and underinsured claims and not pay them because let’s say they have a $150,000 claim, that’s the limit
of their liability, so you can go to trial. I tried one case one time. I got 425 grand. I collected 150 because
their downside, their exposure was limited, was capped with the amount of insurance. Now you can sort
of vexatious claim which gives you a 20% bonus in attorney’s fees. You’re gonna ascertain the common-
law bad faith claim. You can do other things to marginally increase that, but we do encounter insurance
all the time that don’t pay. What you think, you’re like, “Hey, the guy didn’t have insurance. I got an
uninsured claim against my client’s own insurance company. Oh, that’s going to be easy.” Sometimes
yes, sometimes no. Those can vigorously be defended as well.
How do you stack? So, the way you stack is, it’s whatever policy your one insured has, so if you have
three cars on your policy, you stack the minimum coverage of $25,000 three times. If you only have one
car, you only have one, right? So you can stack that, and it’s automatic. The case is used to say, “There
are ambiguities in the policies,” but basically latest cases say, and these are always changing, and the
way it would work, the Court of Appeals and the Supreme Court would find one provision, would be
ambiguous, and then State Farm and American Family would change their policies and stuff, but we’re
kind of in an area now where it’s pretty clear, so that’s gonna be stacked. Now if you have a house with
two cars and you have $50,000 in uninsured coverage, there’s no reason to stack because you only stack
to 25 grand, you don’t stack 50 twice, and if you stack 25 grand, you already get to the uninsured level
of coverage on one car, so there’s no point in stacking, right? You cannot stack against a commercial
company that has 50 cars, all right? There are cases, someone said, “Hey, 50 cars times 25 grand. I
wanna stack that.” Nope, they won’t let you do it. So, commercial policies are excluded for that.
So, that’s a little bit a lay of the land on uninsured. Now, what about underinsured? So underinsured is
when the defendant has insurance, they’re always gonna have 25 grand and your client has
underinsured, so they have had back surgery and their damages are 250 or 300 grand, but the
defendant only has 25 grand. So, you look at your own client’s underinsured policy; you put them on
notice of the claim, you make that claim. It’s important to note that most underinsured policies have
set-off provisions. That means is that they set-off what you got from the first driver, so if the insured
driver has 25 grand, and you have a 100 grand in underinsured, you really only have 75 grand, so just so
you know, all underinsured policies, every insurance company is lying to you, every single one. They sell
a 100 grand worth of insurance, they sell 50 grand, they sell this, but by definition, they’re setting off the
amount you got from the insured driver, so it’s never that. So, a 100 grand in an underinsurance is
always 75 grand, will never be more. And it could set-off more, and sometimes they set off Med-Pay,
and those cases are pretty enforced. In fact, there have been some cases, you try to say that’s fraud and
misrepresentation against the insurance companies, those cases were lost. Illinois enforces that as well.
So, on your underinsured, that’s where you’re gonna land.
Premises Liability. That’s a little bit the lay of the land on those cases, so let’s talk about Premises
Liability. So, Premises Liability cases are slip and fall cases, right? And, your recovery is against the land
owner, and I talked about the MAI instructions here as well. There’s a little bit of a distinction between
an invitee and a licensee.
So, an invitee, and the standard is that there was a dangerous condition; the defendant was negligent in
neither creating, not remedying, or not wanting of that condition; that the defendant knew or could
have known, not should have known; could have known, it’s in the jury instruction, that’s the distinction
with a difference, so whenever I plead this and present this, we’d use the word could, not should; and
then that your client didn’t know about it; and that they were proximately injured thereby.
For an invitee, it’s different. The owner, the possessor of the land had actual knowledge of the
dangerous condition, and the plaintiff lacked knowledge of that condition and could not have discovered
it, and that is when someone’s cutting through someone’s lawn to go to the playground or something
like that. I don’t know if I’ve ever had an invite of licensee case. I’ve almost always had invitee cases,
those are the bulk of the cases. The defendant has to control the premises. You’ll have landlord cases, so
renters almost never have a renter’s insurance. So, it’ll always be a concern if your client’s renting
premises, there’s a whole line of cases about whether it’s a common area, common control, if it’s in
your own client’s apartment, you can’t recover. If it’s a common area that the defendant failed to
maintain, you can recover, but you have to prove it’s a common area or that the defendant didn’t
maintain it. If you’re renting this porch and it falls off, that’s not a common area, but you still gotta go
against the landlord because that’s his structural issue to repair. I’ve had that asserted against me in a
couple of deck collapse cases. So, which we remember too that the plaintiff has to show that they didn’t
know about it. In any slip and fall case, you’re gonna have comparative fault on your client. I was
thinking, when you’re picking a jury on that, you think the jury already thinks that your client’s half at
fault, and then you’re going up from there. So, the question’s what do you do about that? What I try to
do is I try to surrender for that and say, “Yeah, it is what it is.” I try to acknowledge it a little bit. So,
there are different ways to do it. Sometimes, “Yup, we’re 10% at fault,” and you give the jury a number
so that they get a number, and it’s not gonna be the defendant setting a percent at fault, but you’re
acknowledging that and taking responsibility on your own side is important because you can’t try to say
the defendant was irresponsible and didn’t own up to their responsibility and creating that dangerous
condition if you’re not gonna own up to your own part in it as well, so that’s important to think about.
And sometimes these cases settle in a discount because you have some comparative fault, so be
prepared for that.
Governmental entities are liable just like, as I said before, for a dangerous condition of property, and
these are typically sidewalker cases. We’re trying one of those on Monday against the city of
Chesterfield, so we’ll see how they’ll do.
What about ice or snow cases? So in ice or snow cases, if it snows and it’s really icy and the defendant
never did anything about it, you don’t have a case. You’ll lose on summary judgment because it’s an act
of God, and it’s a natural accumulation. So, the only way to win an ice and snow case is if the defendant
went out and shoveled or tried to get rid of the ice but did so negligently. So, if you ever have your client
come in and say, “I slipped and fell,” and, “They never did anything about it.” You got to say, “Well, you
sure you didn’t see someone shoveling over there? You did see some ice melt over here, but it wasn’t
removed off?” Typically they don’t know. Many times they say, “No, no, no. There’s no ice melt. There’s
no nothing. And then I get up and my pants are all dirty because I had salt all over my clothes.” Well,
they did it, but they didn’t do it well. So, you always have to prove that they did it negligently, and that
happens a lot of time. And there are always multiple defendants in these cases because the person
whose store they are don’t own the parking lot, and the person who owns the parking lot didn’t pay the
shoveler to come and do that, so it’s always about identifying these parties, which are actually fine
because then you kind of get them going at different ways. Every store has an ice & snow policy, and a
slip, trip and fall policy. They’ll never produce it to you. I’ve fought these so many times, but you always
try to request that and try to get their slip, trip and fall policies because all of these big companies have
them. Yeah, what’s up?
Questioner: I think you may have covered it, but in a situation where you have a natural accumulation
defense, if there’s a requirement to keep that area shoveled by the locality, they have no claim that it is
a natural act of God.
Gary: I think that they still have a claim that it’s an act of God, but you may have a per se ordinance
violation claim. I’ve never had that. I don’t know what ordinances require that, but…
Questioner: City and businesses in the City of St. Louis?
Gary: I don’t know if you get that. I don’t know if you get that. If you don’t have evidence that they tried
to clear and did it negligently, I think they can win summary judgment. That’s my experience.
If you’re suing a municipality they have a cap that changes with the code adjustment every year, so you
need to establish in your client whether you’re an invitee or licensee, but you can look for these
negligence per se claims, like he’s mentioned, in slip and fall cases. So, are there building codes, are
there local ordinances that were violated? And those are things that you want to grab onto. You may
know the BOCA code can apply, so there may be things that you can get, and you can also sometimes
get punitive damages in those cases or try to submit on punitive damages even if you end up not
submitting to the jury, you present that evidence throughout the case, try to get evidence of that, and
then the question at the end whether you go to the jury or not on that is different. So, MAI 22.01
through 22.10 governs that, and that you’re always going to have comparative fault in these cases I
think, so remember that to modify your instructions with 37.01.
So, let’s talk about handling the case. So, we talked about and I talked about in the prepared documents
about this, so you want to meet with the client, you want thoroughly interview them, talk about what
you want to ask them. You wanna take the time to vet these cases and spend the time to get to know
them because the more you spend time getting into the details, and the devil’s in the details about
these cases, the better you are prepared to handle these cases. I can’t tell you how many times you’re in
an interview, you think you’ve got it all, you do that, and then the client makes a side comment or
something like this, like, “Whoa! I didn’t know that.” You have these other witnesses, you got these
witness cards. “You know what, I forgot to ask you whether or not you had insurance so that I know
whether in an auto case,” or, “You know what, I forgot to, we had a guy in the other day. He slipped on
his concrete. He’s as he goes. Oh by the way, my other neighbors, I didn’t know this, but after I got hurt,
my neighbors came up and said they had slipped at the same place,” or you gotta sit there and know,
“You have any pictures?”, “No, I don’t. Oh, I have some on my phone, you know.” So, you’re gonna take
the time in talking with these people to thoroughly, your clients, not these people, right, to thoroughly
vet these things and get these. People will always have information on their phones, whether it’s a
picture and you get them to email it to you, whatever it is.
So, tell them you’re going to investigate the case and pursue the case on their behalf. You’re gonna talk
to them about your contingent fee arrangement which I’m gonna talk to you about in the ethics portion
of this as well, and typically we charge a third of what we get for people, right? Typically, 40% is charged
in med mal, employment, sometimes product liability cases. I find that people talk and so if you’re
gonna try to get the extra 36% or 40% or something else from the guy in the auto case. Two years down
the road when he’s talking to his buddy, went to Brian Group, or someone else and they got a third, he
may not like it down the road. He may not refer you to those next cases, so think about that in deciding
the referral rate. You want to charge someone as you want to be fair to them and you want to send you
that next case too, so you want to be fair in that, and the ethics rules say that you can charge varying
fees for trial, for other things. I’ve done different things over the years historically. Sometimes I’ve had
when I try the case or a month before trial, I charged extra because you know that month before trial,
you’re doing a lot of extra work. Sometimes people charge extra on appeal. Some of those are
appropriate, so think about that as Rule 1.5E, and then whenever you do that and you charge that,
you’re gonna have to, part of the rules, you have to give them a written settlement at the end of the
So, I have a sample fee agreement here. Two things in here, and I have a third and 40% from the med
mals. Two things that didn’t make it in here, as I put on my contracts. I put a phrase that says neither
party will settle the case without the consent of the other because I want to make sure that they
understand that this is a two-way street, you’re talking about that, and that’s more for the client
interview, because people don’t understand how this works. Do you decide to settle the case? Do I
decide to settle the case? How does that work? The other thing that’s not in there, I’ll talk about what’s
in there after I finish this thought is that I say that the client authorizes me to sign the back of a
settlement check and deposit into my trust account because if you settle the case down the road and
you get a check to Burger Law and to Joe Ott, then if you put on your contract, they give you a power of
attorney to sign the back of the check. You can sign their name, you sign your name, you put it in a trust
account and then you distribute the money to them at the end of the case with the settlement
statement. Perfectly fine, should be done, that’s the way you do it; I tell them that right away; I tell them
that’s on there so that when I settle your case, I can sign the check and put in my trust account, which is
an account that I hold for all my clients and then I’ll distribute the money. I had this thing in there in my
sample contract; I cap miscellaneous fees of 1% of the recovery so the client knows because they’re
always a little trepidatious about what is in your fees and what your expenses. You’re trying to add to
that contingency fee; you’re trying to rip me off a little bit. No, we’re not, and I tell them, “Look, my
expenses are only what I pay out of pocket, the checks that I pay out of pocket from me, that’s the only
expenses that I put in,” and that is true. That’s all I put in.
After you sign them up and they like you, don’t tell them how much their cases are worth in the
beginning because they often ask. I say I don’t know what response I’m going to tell you because I don’t
know whatever thing’s wrong is and that would not be appropriate, and you need to manage your
expectations, so don’t overpromise or underperform.
Send them a thank you letter. Under my new client letter, it’s a form letter. It says, “Thanks for hiring
me. I really appreciate it. Here’s my email address. Here are the things that you do and you don’t do.
Don’t get on Facebook and say that you’re not injured and you’re great, and then go to a deposition, say
you can’t walk.” I mean, everybody gets Facebook these days. I specifically counsel people on this. We
had a case where last fall my client puts his face and they were all over his Facebook, puts on his
Facebook post, “So glad to be back to work after my eight-month vacation.” Remember you couldn’t
work because you are so injured, right, you know? So that kind of stuff, and you know, look, it’s
important. Lawyers have a real challenge in our credibility in the public, so it’s really important to have
that integrity from the beginning to the end of the case including with your client because juries will
sniff that out if you’re playing games. They’re not gonna know exactly what you’re playing games on, but
they will sniff it out and they will know you don’t have that, and so I strongly recommend you do that,
and you don’t want to have a client who exaggerates her symptoms and does that stuff; it doesn’t help
you; it doesn’t help you to have that client who has done treatment and then a year later says, “Hey, I’m
going back and I’m getting a ton more treatment.” Oh, great. The insurance company couldn’t have paid
for that. The jury couldn’t have believed it. So, that may not have to have that integrity.
Lien letters. Send lien letter to all the people you identified in the case. The lien letter is there. Tell them
you have a lien. That’s how you get your statutory lien under the attorney’s lien statute. Tell them,
“Preserve the evidence,” in your lien letter. I can’t tell you how many times I’ve taken depos where they
say, “Oh yeah. We had the surveillance tape showing that your client fell and it wasn’t their fault, but it
automatically erases after 30 days or blah, blah, blah,” or you deposed the defendant. I did this just yet
two days ago, “Yeah, I had all those emails. Oh you needed those?” I’m like, “Yeah, you know, I give you
request for production of documents a long time ago.” I actually had a case that I’ve tried where the
client got up and testified on the stand recently that they didn’t produce to me the personnel file in an
employment discrimination case about my client. They just never did. So, it’s important to say, to ask
them to preserve this evidence, okay? And a lot of times the defendants may have pictures like that, so
put that in there.
So, what if you have the premises case and you don’t know who their insurance company is? Well, you
send it to the individual, right? You send a letter to the home owner or the property owner then send
this to your insurance company, but they don’t have to. They don’t have to do that. They can stymie
you. Then, the only thing you gotta do is you gotta file suit, and then when you’re suing them, then they
will see the light and they’ll get their insurance company. It happens all the time. So, you go and
investigate the case.
Remember that when before you file suit, the other side isn’t represented and there’s no Rule 4.2
prohibition against calling and interviewing people. So, before you file suit, call the witnesses; call up the
person in the police report; call the employee of the store; call the store manager. There’s no
prohibition doing so if they’re not represented under 4.2. The best investigation is done sooner because
people forget stuff. Things go away and that kind of stuff. I’m not saying they’re gonna talk to you or
they’re gonna want to talk to you, but that’s what you should do. We cite the statute in here. There are
Unfair Claims Practices Act laws. The laws are better in Illinois than in Missouri, but they have to
acknowledge your lien and writings. They have to tell you, the actual, the reg say that they have to tell
you the policy on this, but they never tell you the policy if you’ve ever ask. They always don’t want to tell
you, but actually, and a lot of the regs and a lot of the statutes, they say that you have to, but they won’t
unless you’re showing them damages that high. So, that is a problem. So, they will often say and
especially in a slip and fall case, I want a statement of your client. So, what do you do? So, here’s what
you do. So, what I do is I say, “I let you have a statement of my client if you give me a statement of the
store manager or the person who’s at fault,” because what they’ll do in premises cases, they’ll say, “We
can’t even adjust to investigate this claim unless you give us a statement about what happened,” and
then you’re like, “Well, you know,” and then they’ll stymie you, and then you’ll have to file suit and then
you’ll be in litigation, which frankly that may increase the value of the case anyway, but my response to
that is always, basically, “You can have a statement of my client if I can take the statement of yours,”
and it’s really effective because it takes the wind out of their sails. They can’t use that as a false excuse
not to adjust or to pay you on the case, and it almost never happens. Now, there are occasions, you may
have an occasion where… You really have to be careful when they want the statement to challenge the
liability of the case, to not pay you. If you have an adjuster who you’re working with, they kind of say,
“Listen, we knew we had this hole for no reason. That wasn’t marked in the middle. We just want to
make sure your client had some knee problems before. I want to take a statement to make sure that the
knee surgery is connected to this. I wanna do this or I wanna do that.” Then you may want to give them
a statement if it’s someone where you’re trying to get to yes, you’re trying to get a resolution, you may
want to give a statement and have that good faith and work with the adjuster there. It kind of depends,
you know. There are good adjusters out there and bad adjusters, both.
You want to investigate the case. You want to get the basic facts. Like in the premises case, you could
always find great stuff, the neighbor, the store owner, the employee, the manager. I can’t tell you how
many times in premises case, the person slipped and I forget to ask him and then later on they’re saying,
“Oh, my son was with me,” or, “Someone else was with me. They saw the ice on the ground,” because
whenever the premises case, your client never notices the dangerous condition because if they did they
wouldn’t have stepped there, right? “Oh, I never saw the ice.” After you’re on the ground, you’re laying
there and then you noticed your clothes are wet, you have salt or it’s cold on the ground, okay? So, you
need to know that before.
The other thing is when you’re talking to your client (and you gotta be vigilant about this) is they always
ask, “Well, weren’t you looking where you’re going?” And the answer is that, “Yeah, they’re looking
where they’re going, but you don’t walk around looking straight in front of you at the ground ,” because
if you did, if you walk out there looking for holes, you get run over by that car. So, when people walk,
they environmentally scan. They look over here; they look down; they look over there. They’re always
keeping a view of that, but that’s often the first question. My friend John Rahoy, who’s a defense lawyer
at Brown & James, every deposition we begin, he sits and talks to my client about how we’re good
friends, went to high school together and get their guard off, and then his first question is, to every
single fall cases, “Don’t you have to look where you’re going?” He doesn’t even ask their name, and he
zones in. That’s the John Rahoy trick. I’ll give it to you now in case you have a case against him. He zones
in on your weakest part of the case first, and it’s very effective, and he’s a very good lawyer. So, you
gotta have your client prepared for that. “Yes, I gotta look where I’m going, but sometimes I’m not
looking down. Sometimes I’m looking up or over here,” because you walk into a store, where all the
signs about what they want you to buy.
All right, resolving the case. So, try to settle the case. Most cases settle. So, you wanna wait until your
client has reached their maximum medical improvement. That doesn’t mean they’re a 100% and they’re
great. Maximum medical improvement means it can mean they have a residual disability or
disfigurement or permanent pain or permanent problems, right? But you don’t want to settle a case and
then the next day have your client tell you they need back surgery because then you did not do a good
job, so make sure that they’re at their maximum medical improvement, get all their medical records and
bills, send them a demand letter. “I gave two demand letters; I gave at the end of this thing; I gave you a
sample petition for a premises case and an auto case; I gave you some other sample (2:49). If I gave you
Sometimes I think of my best questions after I leave a meeting, so if you guys have questions after this,
something that I don’t touch on, something you want to find out about, email and ask me and I’m happy
to answer any questions because you can tell how fast I’m talking. There’s a lot to talk about these
things. I can’t go into everything. I’m just trying to give you some of the basic stuff in these
presentations, some of my good little tricks.
All right, so, you want to give a demand. If you want to know the value of the case, you wanna maybe
talk among friends, “How much you think this case is worth? What do you think?” Ask your spouse or
your friend or your significant other, they’ll tell you right away. They’ll tell you, you’re friends will zone
in on the key issue in your case and tell you the value of the case better than you can see yourself
because you’re drinking the water, you grew up in the case, right? So, think about that.
I’ve done long blogs on this. The defense adjusters have a million ways to tell you, “Your case isn’t worth
what you think it is; that you have degenerative problems; you’re not going to get this much money in
the St. Louis County jury; build vs. paid, we’re gonna ratchet it down.” Just because they say that isn’t
true. Be an advocate for your client from start to finish. Think what you think in the case.
The other things is that, let’s talk about policy limits. So, what if they’re a low policy limit, 25,000,
50,000? Couple of things you want to think about. So, one is, you wanna make sure there is no excess or
umbrella coverage, okay? So, the homeowner may have other coverage. They may have a whole thing of
coverage for American Family, so they may have excess or umbrella coverage. I don’t take a policy limit
demand without having an affidavit signed by the defendant they have no other insurance, or I don’t
settle it in litigation unless I have an interrogatory answer saying that’s all the insurance. You gotta make
sure that’s really the deal, okay? It just can’t be some lawyer saying, “Oh, I would never have more than
this.” You gotta conduct an inquiry. The second thing is that they may deny your claim, so whether it’s
uninsured, underinsured case or maybe they think you’ve got a slip and fall case, so if your claims going
to be denied or they’re not going to pay you up to the policy limits, think about doing a hammer letter
or a time-limited policy demand or a policy limit demand letter because you can set a defendant up for
bad faith. So, if you have a case where you have 300 grand in medical and they’re not offering you the
$50,000 to settle the case, you do a time-limited policy limit demand letter giving them 30 days and you
say after which time this offer rescinded and never will be offered again. And then if they don’t do it,
then you give them another chance a little bit because you wanna set him up with a bad faith claim later
on. If they still never do it, then you have them set up for bad faith. What does that mean? That means
a couple of things is you go to trial, get a big verdict and then they can’t rely on the insurance caps and
then the insured has a bad faith claim against the insurance company. They can be assigned under
537.065; it’s called an 065 agreement or a 537.065 agreement. You may have a corporate or an
individual client who is sued, and I’ve done this for folks, is then they need to have a lawyer to come in
and monitor the insurance company to make sure the insurance company isn’t screwing them and
setting them up for personal liability, so those are bad faith claims.
Liens and medical bills. Let’s say you settle the case. So, they’re gonna give you the release. Don’t
promise to pay all. As a lawyer, don’t promise that you pay off the liens; it’s unethical; there’s a formal
opinion on that. You can promise to protect and indemnify in case they are not paid. Your client can say
they’re gonna pay the liens, but you as a lawyer cannot because your client may make an informed
decision to rip off the lien holders and you can’t go against that, but most defense lawyers understand
that. Everybody wants their money back these days, so your insurance company as well as the providers
wanna get their money back, and what I tell clients is get as much money in the front end of the case as I
can, but I also try to decrease the payouts as much as I can, so we have the lien holders, we call them up
and we say, “Knock 50% off your bill because you have a free lawyer, go get the money. Knock a third off
If it’s not an ERISA plan, medical providers have no lien at all; it’s an old case called Schweiss v Sisters of
Mercy, because you can’t assign a personal injury case. It’s void under public policy in the state of
Missouri, but most plans are ERISA plans, so you want to make sure they prove to you they’re an ERISA
plan, show you the policy. Okay, they’re an ERISA plan, and they’re gonna say, “Well, we’re an ERISA
plan, you have to go to federal court.” Well, that’s not really true because I file a motion to adjudicate
liens all the time in state court where I am, and because the court is kind of imbued with some authority
to resolve all liens, and there’s a lot of lien statutes that reference that, so most of the time I’ll get them
to capitulate to that.
If it’s a straight provider’s lien, not from insurance, then I negotiate with them. On a chiropractor bill,
you can’t charge $250 a visit, you know. My rule of thumb is a hundred bucks a visit. That’s what I think
is fair for a chiropractor, but I usually knock off some money, and if they paid and then if they’re
insurance paid and they want to get the balance, many providers have contracts where they agree to
accept the negotiated amount and they can’t get anymore. They’ll try. St. Anthony was terrible at this.
St. Anthony’s used to, when you came in with insurance, they take your insurance, they find out you’re
at a car wreck, they mail back the insurance payment, and they try to make the lien for the whole
amount. I’ve fought them on that many times.
So, kind of be vigilant about these things. Don’t just take what they’re saying for granted. If you’re not
sure about it, ask me or ask somebody else who knows, who fights this stuff all the time. I think we have
a duty to our clients to make sure we pay as little back in the back end of the case, as well as get as
much money in the front end.
You have the lien reduction statutes. So, I’m going over. So, especially like in a premises case, if you
settle the case on the cheap, you have statutes in Missouri and Illinois, the Illinois one’s different,
Missouri basically says you pay the lien holders, you take your well-earned fee and expenses because
there are no laws that are written not to take care of lawyers. You always take care of the lawyers first,
right? So, you pay your fee and your expenses, and then the remainder, half goes to your client and half
the split pro rata among the lien holders, okay? That’s what I call the lien reduction statute. I call it the
cram-down statute, so that helps you, okay? Your client gets half and those folks take half. However,
insurance companies, health insurance companies aren’t part of those people. Those aren’t medical
providers, so what do I do? I lump-remove the providers anyway, and I send out a letter and I say, “You
guys all get half. Here’s your pro rata share. I have an Excel spreadsheet. If you want me to email, I’ll tell
you. I’ll show you those letters, and you guys all get that.” I send it out. I wait two weeks to see if
anybody complains. If I don’t get any complaints, then I kind of send the letter, and then they accept it
in its accord and satisfaction, and you write them with a transmittal letter, “This is payment in full.” The
Illinois statute’s different. I know you guys know it’s different. The doctors get a portion; the hospitals
get a portion; but it’s also a very strong statute that actually gives a little bit more to the client, but then
Medicare and Medicaid or like the 800-pound gorilla, they are totally separate, and so my Paralegal
Casey can speak to you more about this than I can because she’s brilliant at it.
Write him a letter; get a conditional payment letter; find out how much it is; and negotiate as well as
you can with them. You can get a good deal from them anytime if you’re doing the right thing. If you’re
trying to rip them off and take too much of a fee or have your client take too much, that ain’t gonna
work, but it should work.
And then insurance liens and medical bills, work comp laws, it’s 287.150. Settle the comp case first and
then pursue the civil case. And then the last part of this is remember that you can work with other
lawyers and other lawyers either know parts about it, or if you get up over your head and you’re not
ready to do it, work with another lawyer and help you. That’s the basics of trying a civil case.
This thing about objecting all the time, don’t object during voir dire. There’s nothing to preserve on
there. The concern is to pay attention to the jurors that you’re speaking, to get information from them,
to find out if they are bad for your case. If they’re bad enough, Gary will explain, if he hasn’t already,
how you get around the series of questions you have to make to get a strike for cause. I don’t remember
a civil case where a juror was struck for cause, maybe if they had ten back surgeries or something, but in
criminal cases which I was a prosecutor and then I had a lot of criminal cases with some circuit attorneys
trying them and public defenders, and there are a lot of strikes for cause because the jurors will say, “I
never will believe a police officer,” or, “I always believe a police officer.” Classic. But in civil cases, it’s
hard, so don’t be objecting all the time. Just get through. Try to pay attention to the other lawyer’s
questions but more important to their jurors’ answers so that you can move along, and this gets into my
next point, which I’ll go right into so that Gary doesn’t interrupt me.
Be respectful of the jurors’ time. They are paid $12 for a whole day of voir dire in the city. $12. And
when they come out of jury, they get paid $18 down, so I always used to look at my jury the next
morning, the 12 people and one or two alternates, and say, “Now you got a 50% increase.” It’s not $18
an hour, it’s $18 a day. So, be aware of that. And also be aware that the jurors are citizens. Some
lawyers are very dismissive. They think the jurors don’t wanna be there. That’s true. They don’t really
want to be there, but when they are there and when they’re chosen, they take their job very seriously.
And, I’ve been called for jury service now three times since I retired, and I’m not on a jury. I don’t think
it’s right that I should be on a jury, but I did not believe in the jury system when I was a prosecutor in the
late 70s, but I believe in the jury system when I was a criminal defense lawyer, and as a judge I just was
continually impressed with how hard the jurors work, how seriously they take their job and how careful
they are, and most time that melding of 12 people from all different walks of life, they do a good job,
and they certainly do a sincere job and when I speak in other countries and other jurisdictions, this is the
best system in the world, and it’s the only place in the world where we have this type of jury system.
England hardly ever uses juries. That’s a different system. Argentina, some countries have no oral
testimony. They just have written briefs filed with the judge, and of course, France has a three-judge
panel that hears cases. So, it’s a very unique system, and I really think it’s wonderful. You also think it’s
wonderful and pay those jurors the respect they deserve for being there. As I said, once they’re chosen,
they know that’s their duty as a citizen, and they do a good job.
Beware not to be delaying the trial with unnecessary delays, and the judge should be aware of this. I
thought it was my job to take care of the jury. I have heard there are judges that take a couple hour
lunches, and they’re back in chambers, shooting the bull with the lawyers and the jury sitting up in the
jury room. If that happens, you might shuffle your papers or say, “Well, judge, you know with that poor
jury sitting up there, and it’s not air-conditioned,” or something like that to try to get the meandering,
So, since we’re talking about juries, one of the things that I do in most cases that I try, as I file a jury
selection brief. It’s to inform the court about what the rule and the law in jury selection. I don’t know if
it ever helps. There’s a lot of law in this. This is very interesting, and most judges have this preconceived
view that the law is there’s a certain way about striking jurors for cause. I tried a case in St. Charles this
time last year where I struck 28 out of 50 for cause where I juxtaposed and put together their reluctance
to award personal injury, pain and suffering damages with the burden of proof instruction and I got
everybody to say that they wanted more than 51%. They wanted 75%, 80%, 90%, to award pain and
suffering damages. So, there are a lot of techniques. There are a lot of things that I do, that trial lawyers
can do to try to get those strikes for cause. One of the things I do in addition to following the brief which
the judge 8 times out of 10 ain’t gonna read, is I have Section 494.470 with me, the statute on jury
selection, which is great. It’s the second page of my 13 points here, my 13 advanced trial tips.
Gary: The statute says, these are for cause strikes, that no person who has formed or expressed an
opinion concerning the matter that may influence the judgment of such person shall be sworn in as a
juror. That’s pretty low standard. And what I have on the back of my voir dire, not to tip off any lawyers
I’m about to try a case against over here in three weeks again, is that when I get someone whose
proclaiming something that may exclude them. I have a little sheet where it’s my how to close the door
on a juror. It’s my go-to questions, and I say things like (and you heard me the last time, remember, at
least you know what it is) is I say, they say, “Well, I’m a little reluctant to award pain and suffering. How
do I quantify? You know what, I think I need more than 51% to award these kind of damages. You know
what, I’ve been a defendant in a case or plaintiff in a case, so I may have some views about that,” and
then you say, “How long are those views important to you? Do you hold them tightly? Have you held
them for a long time? I take it in three days those aren’t gonna go away from you. You’re gonna have
those views. That’s part of who you are. It’s important to keep your integrity in this process, right?
You’re not gonna give away those views just because some judge tells you to, that you don’t like pain
and suffering damages. No, you’re right. I’m not going to, and you would want to have to in this case,
would you? So, you have your rules,” and you get them really saying, “You know what, I believe this
stuff. It is what it is. Thank you for your candor.” And you explain to jurors at the beginning, you say,
“Listen, you guys are all qualified jurors, but you may be a better juror for a different kind of case. If I
was a victim of a crime, I may not be a good person in a criminal case. You’re qualified as a juror, but you
may be better qualified in other cases, so my questions are to find out whether you’re best qualified in
this case,” and then I do all this work, and I get them to say other stuff, and the defense lawyer gets up
and says, “Can you be unfair and partial? Yes.” Boom. They’re not the juror.
Casey: Or what the defense lawyer says, but if the judge, I understand you said all those personal
feelings, but if the judge gives you the law, you’d follow the law, wouldn’t you?
Casey: Oh yeah! Yes, I would follow.
Gary: Because who’s gonna raise their hand and say they’re not fair? Who’s gonna say they won’t follow
them? No one, never, but there are a lot of cases that say that you can’t use leading questions to
adjourn, to rehabilitate them. Now, I’m not saying it works, but there are those cases where if you ever
need that brief on jury, on jury voir dire. You’re welcome to. I’ll give it to you. You can file it. I’ve
rewritten it a couple of times. Having that statute though in your pocket, it’s direct and to the point,
that’s a good little trick.
Casey: I’ve never seen this statute before today.
Gary: She’d never seen it. No one uses it, and no one reads it.
Casey: It doesn’t say anything different than the case law really, but actually it’s surprisingly weak. It’s a
weak statute because judges aren’t gonna strike very many people.
Gary: If you can say you’ll file the law, you’ll be fair and impartial, then you’re on the jury when you
should not be according to all of the law and the statute.
Casey: That’s correct. Judges will probably not strike. It has to be pretty egregious for a judge to strike a
person for cause because you can say I would tell the lawyer, “I’m taking everything into consideration,
all these answers, Gary. I just don’t take into consideration his answers to your questions. I’ve looked at
it all, and I’ve looked at his demeanor, and I deny your motion to strike.” That’s what we’re doing, and of
course, we’re right.
Gary: It’s a discretionary act. That’s not gonna be reversed on appeal.
Casey: It is discretionary. That’s why don’t object during voir dire. Try to pay attention to the jurors,
okay? Don’t bore the jury. You notice a lot of my points are about this jury. They are the ones that are
gonna be deciding your case. Everyone says, “Oh, what judge are you in front of?” No, the judge in a jury
trial doesn’t really matter. Maybe on some pretrial motions, or if a judge grants a summary judgement,
that matters. But, for the most part in state courts summary judgment is not granted, and for the most
part it’s the jury that decides your case. They have the verdict. I loved it when I was in a jury trial versus
a bench trial. The pressure was on me on a bench trial. the jury does all the work, and then I do the
Gary: To echo something she said, the more I try cases, the less I do it like I was trained. Do you mind if I
make just a point on objections?
Gary: I object less than I ever did. I just don’t object. The jury knows it. Every time the jury sees me
object, they think I’m hiding something from them, and they think that my client’s about to kill the
whole deal with some terrible answer, right? Because the code word, when juries think of lawyers, they
think liars, and so as the plaintiff’s lawyer I have no credibility because of the marketing efforts of the
insurance industry over the last 15 years. So, I have no credibility. It used to be when I was trained, you
win your case in voir dire; if you don’t win in voir dire, you win in opening statement; and if you don’t
win in opening statement, then you win it there, right? I do the exact opposite. I underpromise and I
overperform. So, I try not to win it in voir dire; I try not to win it in opening; and I let the blooming
flower of the evidence throughout the trial persuade them over time, and then they’re like, “Wow, this
is the real deal. He wasn’t full of it when he stood up and settle a lot of stuff. This is the real deal.” And
you let that persuade them, so by the time you’re closing and you’re closing the deal that you have that
credibility and you have it; then, that’s like just a sports team. Your Cardinals have to peak at the right
time in the playoffs, you know? You can’t win 20, 25 games in August; what’s the point? And that’s the
point in a trial. You want a peak on your credibility or evidence at closing when they’re ready to go make
Gary: But in objections, we talked about opening the door and stuff, you know. If you don’t object, the
other sides gonna get up there and they’re going to open the door. We tried a case in federal court. It
was a product liability case that we lost last week. I hate to brag but we lost the case. We and John
Simon tried it together. We had a bet at the end it was the Friday of the first week of trial and none of us
had objected on the plaintiff’s side not once in 5 days. The defense lawyer’s standing there; the witness
is there; the judge is there; the lawyers are watching the jury, just giving speeches to the jury the whole
time, but what happened was (I don’t know if it worked or not, whatever) but what happened was we
were able to open the door in a lot of evidence, get a lot of stuff in we would not have gotten otherwise.
There are some good trial lawyers, and I read about their stuff, they say don’t object ever. So, I’m not
saying, look, if you have something, If your client had a drug problem 10 years ago and the defense
wants to bring it in, you got to object and you got to make that record because the motions aren’t worth
the paper they’re printed on. You got to keep that objection. you got to be cognizant. You got to be
vigilant about that, but think about that In terms of objecting rather than getting up, “Oh, was he
leading the question?” Let him read. Who cares? Or, “Was he doing this?” You know, whatever. So,
something to think about.
Casey: Correct, and then so not boring the jury. Be prepared. That’s the Girl Scout motto. Is that the Boy
Gary: Bob’s an Eagle Scout. Bob?
Bob: Yes it was.
Gary: Thank you, Bob.
Casey: Oh. At any rate, they know when you’re shuffling papers. They know when you don’t have
exhibits. You’re delaying the trial, and they just want to hear the evidence. I say they’re conscientious as
they are, but they want to get home and they want it to be over in a couple of days. So, if you’re
unprepared, it shows. The jury knows it. Be direct and concise in your direct examination. Get to the
point. They’ll know if you’re fishing around and you don’t know what you’re doing, so prepare your
cross-examination also. Know what you wanna get from a particular witness in cross-examination, and
then go for it. Don’t spend hours going through all this background that we’ve already heard before
from other witnesses. Get to the point with this witness and be done with it.
Gary: Can I echo something from you in cross? So, a lot of people don’t prepare their witnesses in cross
as well as they should. You prepare him from a direct, right? Preparing for cross can be very important.
So, you have to say yes’s and no’s, and you have to be sweet as pie. Kind & nice and yes’s & no’s. 80% of
what is communicated is visual; 20% is verbal. If you have the lawyer up there yelling at the 300-pound
truck driver and he’s just going yes, no, yes, no. He won the case. He won that interchange because they
see the lawyer yelling in the person. On the other hand, the lawyer’s asking, frankly, questions, and the
person thinks that they need to argue and equivocate on and versus or, or say their whole case in
response to every question, it kills you. I tell the clients, “Look, I get to redirect you after. You just say
yes’s and no’s. If they say, ‘Did you tell the doctor at this day, your pain was 2 out of 10?’ Say yes,
because then I get to get up and say that you had surgery 2 days later. You just had a good day because
you’re hyped up on Percocet that day, right?” So, you don’t need to sit and argue your case and
respond. You guys have all had this: You’re like dying up there; you’re client’s up there arguing and
everything; you’re like, “I’ve told you yes’s and no’s.” I had a client one time, tried a porch collapse case,
and the cross-examiner, Evelyn Goodlow, God bless her soul, they had her passing a bad check years
before, and so, “Did you pass this check? ‘No, it wasn’t this and it was this debt.” She’s arguing on and
on and on, and she looked over me, and I held my paper up so the jury could see when I go like this, I go,
and she reminded her to say, “Be sweet as pie and say yes’s and no’s.” And she turned around and she
said, “Yup, I passed a bad check.” The cross-examination was done. They didn’t get a thing out of her.
So, really, yes’s and no’s, be sweet as pie, and they’ll remember that, and when they forget, that’s okay.
At least they know. So, that’s something on cross.
Casey: Right. So, the jury is your judge and the witnesses are your case, but when witnesses aren’t
talking your case you’re gonna do videotaped depositions and depositions and exhibits, have them
marked, have them ready. Know how to use the video machine. I still talk about overheads, but we now
have videos and computers. So again, not delaying the trials and not looking incompetent. Don’t make
speaking objections from the floor. That’s objectionable, and the embarrassment, the judge calls you up
to the bench. Don’t use a lot of sidebars. Jurors hate sidebars. Try to make your record at the break if
possible, okay? Okay, again, you want the jury to hear your case and to see that you’re knowledgeable
and efficient. You’re opening a trial, I was taught 40 years ago that you were supposed to tell a story,
that it should be like the contents of a book, that you should not be describing every minutiae of your
evidence, but tell the jury a story so that they understand what the case is about, and you can humanize
it, and you call your client, Jim or John or whatever, and you make that person a sympathetic human
being especially if you’re a criminal defense lawyer. Criminal defense lawyer, you go up and touch him.
But at any rate, keep your opening very simple and don’t start every sentence with “The evidence will
show…” Think of it as a story, okay?
Gary: Never say the evidence will show and never tell him in closing argument that this is just argument,
not evidence. Just talk.