“I do everything I can to be friends with defense lawyers. It makes the case so much more enjoyable. And when it comes to non-parties, just be nice to these people and you’ll be amazed at what you can catch.”

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

Tune in as Kurt, Tim, and Keith discuss Kurt’s closing method to make your client’s pain real to the jury, why he filed the case in federal court, experts used in the case, and how being nice to everyone paid dividends at trial. Stay tuned for Part 2 coming out next week! 

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☑️ Kurt Zaner | LinkedIn

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☑️ Tim Galluzzi | LinkedIn

☑️ Cheney Galluzzi & Howard, LLC on LinkedIn, Instagram, Facebook, TikTok & Twitter/X

☑️ Keith Fuicelli | LinkedIn

☑️ Fuicelli & Lee Injury Lawyers Website

☑️ Fuicelli & Lee Injury Lawyers on Twitter, Facebook, Instagram, YouTube & LinkedIn

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Episode Snapshot

• Getting to know Kurt Zaner
• Why you want the jury to see you as a person, not as a lawyer
• How Kurt makes his client’s pain real to the jury at closing
• Caps in Colorado
• Background of the case
• Finding the right experts
• How Kurt simplified things for the jury
• Conflict that arose in the case which led to co-counseling with Tim
• Why you need to make time for later depos
• How being kind benefitted the case

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.

Welcome to the Colorado Trial Lawyer Connection, where Colorado trial lawyers share insights from their latest cases. Join me, Keith Fuicelli as we uncover the stories, strategies, and lessons from recent Colorado trials to help you and your clients achieve justice in the courtroom. The pursuit of justice starts now. Alright, well welcome back everyone. I am Keith Fuicelli and we are here for another episode of the Colorado Trial Lawyer Connection. And I am very, very, very excited to have some of my good friends on the episode this week to talk about a truly amazing result. And we're going to do something a little different in which we're going to have sort of a guest host to come in and help lead the ship, if you will. So let me first introduce anyone who is listening to this podcast surely knows Kurt Zaner. He is a founding partner of Zaner.

Hardin Law is the proud owner of the largest premises liability verdict in Colorado. History has multiple eight figure verdicts. I know at least three if not more, and many seven figure verdicts and is a true in the arena warrior for justice. I just have the most respect for Kurt Zaner and he is here to talk to us about an amazing result he had in federal court, I believe on a explosion case. And here to guest host is a good friend of mine that I first met at the very first trial by Human Seminar in Boulder, Colorado. Tim Galluzzi. Tim is a founding partner of Cheney, Galluzzi and Howard, and they are a law firm. Again, anyone who is listening to this I'm sure is familiar with their law firm and how they too are in the arena trying cases time and time and time again. So kudos to them. And Tim in particular has had amazing result and was brought in on this case and is here to take my shoes for once so I can sit back and watch how it should be done. And so, welcome Tim. Welcome Kurt.

Thanks Keith.

Thanks Keith. Appreciate it. I had the chance to co-counsel this case with Kurt. I represented another fellow who's injured though not as severely as Kurt's client, which was why Keith thought it might be a good idea for me to come in and guide the discussion since I had sort of a front row seat to the magic that Kurt did on this case. So Kurt Zaner, tell us about yourself, man. Who is Kurt? Where are you from? How'd you become a lawyer?

Who is John Galk, by the way, Keith, I dunno if you know this. I mean you probably do. I mean, you were an inspiration for me to start our law firm. Mark and I got together about 12 years ago and we saw Keith, my buddy Keith Fuselli, he's crushing it. He's got a great, he's trying cases one day. If we grow up and eat our Wheaties, we can be like Keith Pelli. So dude, you've been an inspiration all along, man. Dunno if I've ever told you that. So thank you for being that and inviting me on today. This is awesome.

Oh, well, thank you for those kind words and it is completely sincere the respect that I have for what you are doing and your skills in the courtroom. And so I am so excited to sit back and learn from how you do what you did. And not only in this case, and I want to make sure that the listeners understand this is not a one off event. And it all started with the Al Leo case. I apologize for getting that name wrong, but it was almost an impossible to win drunk driving case I, and it all started with that, if I'm not mistaken. And there might've been some before and then even ever since then it has been amazing result, amazing result, amazing result. So I am thrilled. Thank you for the kind words and I am here to learn, sir.

Thanks Keith. Yeah, so what was your question, Tim? Who is John Gault?

That's right, that's right. Yeah. Just tell us a little bit about where you grew up, how you became a lawyer, why you became a lawyer.

Yeah, so I grew up in South Florida for the most part, a little bit in Colorado. That's how I made my way back here eventually. But for the most part in that small town in Florida called Boca Raton that people know, it's where Jerry Seinfeld's parents lived in the show. A lot of golf courses and it was great childhood. I wanted to be a lawyer. I always liked arguing. I always liked 98% excited, 2% terrified of giving speeches or maybe it was the other way around. That's the line from Armageddon I just stole. And so I was like, I think it'd be fun to be in the courtroom and do the whole fight for people, the drama of it. And so I went back and forth between wanting to be an actor and wanting to be a lawyer. And so this was kind of a struggle always.

And I knew that if I wanted to be an actor, you had to do that somewhat earlier, right? The earlier the better you get out there and could take decades to make it. So in high school, before I got to the LA thing and before I was doing any acting, it was like a real world juvenile court thing where I could go be a lawyer and defend people who were actually done something wrong, committed some crimes who were underage and I could dress up in a suit and tie and go into a real courtroom and do the whole trial thing. And I'm like, this is fun. This is a lot of fun. So I knew I wanted to do that, but then I got this acting bug. I took a lot of acting classes in college and I was taking acting classes in the theater department every semester I was cast in a play which ended up quitting because it interfered with my social life, which was a stupid decision in hindsight. And I would do a lot of scene work. And then after college I decided to go out to LA see what would happen.

Where'd you go to college?

University of Florida.

So I'm curious, I feel like great trial lawyers, they always have this life experience from before they were lawyers that informs how they present in class. So it sounds like theater was definitely one of those formative experiences for you, but while you were in college, were you doing other stuff besides theater? Did you still have your foot in the door of the law at all or were you pretty much all in it on theater at that point?

I wasn't doing anything law related in college was. Frankly. It was a lot of typical college stuff, just having fun running around. I wish I wouldn't have wasted. I have three boys of my own now, eight, six, and two. I wish I would've not spent so much time going to parties and going to bars. I look back at that time and I'm like, what a waste of time. I'm sure I developed some social skills doing that and that helped with connecting with people. So maybe it's not a complete wash, but I wasn't doing anything spectacular in college. I played rugby my first year at the University of Michigan before I transferred to Florida. I ended up hurting my shoulders, so I didn't play anymore, but it was pretty humdrum, typical frat guy experience. I did go to Rome and maybe this is it. I studied to abroad Rome for four a semester, and that was life changing.

And now my heroes were people like Cicero. Cicero, as you may know, considered by some to be the greatest trial lawyer of all time. I got to go visit the places that he gave these huge public speeches in Rome. They had public trials or there was no movies, there was no drive-ins, it was just the Roman forum. And that's where everybody met and that's where the trials were held. And people would go watch Cicero because he was just a phenomenal speaker and he would pluck people out and just save them. And so I learned about Cicero and that further inspired me to, well maybe all this drama stuff and the lawyer stuff can kind of go hand in hand. And so I ended up bringing Cicero biographies and taking all these Roman history classes while I was there. And I think that really cemented it. I mean this is the first time I thought about it, but it was a good question. I've never thought about this experience and I think maybe that was kind of what led me on the path or kept it alive.

Do you consider Cicero to be the greatest lawyer of all time?

I'm a huge Cicero fan. Yeah. If you really like Kurt, who's the best trial lawyer, I'd like Cicero. That'd be my gut reaction. I've read a lot of his speeches, I've read his books, never seen him in trial. But the third secondhand accounts are pretty amazing and he's got such a cool story. He was born, so in Rome you have the Plebs, the lower class, and the Patricias the upper class, he was kind of in the middle. And so he used this ability to speak to rise the ranks and he actually ended up becoming the first non Patricia, they call it the council or president of Rome, which is really inspiring. So really fascinating figure.

So you're interested in Roman history. Who are three Roman emperors you think you could beat in a fist fight?

Oh, let's pick someone. Some people would know communists. We all saw communists and gladiator. Not so great Nero because he's a maniac and I just don't think he was more of not someone that could want to fight. If we go for the third, let's make it. I love to fight Octavian who became Augustus who became the first IMP tore, which was first emperor of Rome. But I take him in his younger years as an 18-year-old kid, I don't take,

Yeah, yeah, beating up the kids. It's way easier. Way

Easier. I mean you got to take easy victories, low hanging fruit.

So tell us about your firm now. What does your practice look like? What kind of cases do you typically work on? And then we can dive into this most recent monster verdict you had.

Well first lemme tell you what a failure I was in Los Angeles. We didn't get to that part. Oh

Yeah, tell us about your failure in Los Angeles.

So I went there, I thought they'd be handing out sitcoms at the airport. I stole that from Swingers. I really have nothing original. If you've seen enough movies from the eighties and nineties, you realize I'm just one big copyright walking copyright infringement act. And I was there for like nine, 10 months. I started doing all the obligatory LA things you have to do, getting a job as a bartender, which is not easy. Everyone's trying to do that getting into an acting class, which is sounds weird. You just sign up. No, no, you have to audition for the good ones. So I got into an acting class, I got a place of my own after sleeping on my buddy's couch for like two, three months. So I was doing all of these things. I never had any success to brag about. But just being in the industry and taking these really high level acting classes and continuing that was really helpful because I think for trial law, people say, Kurt, you're an actor, you do this theater stuff, how do you act in the courtroom?

And Tim, you've seen me in court, we're not acting in the, I'm not pretending to be indignant and upset with the defendants. I'm not pretending to care for my client. I'm not pretending to cry because I'm thinking about when my dog dies and go into some method acting. And so then I start crying about my client and his injuries. No, no, no. You have to be authentic and believe everything that you're doing. Where acting comes into play is giving you a level of comfort in front of people is in giving you control of the things that you're doing and self-awareness. So you know how to insert pauses, how to lower your voice, how to emote comfortably so that when those emotions come, you can lean into them as opposed to back away from them. And it teaches you how to present and have fun with things. So I mean you probably saw some of my closing or some of my cross-examinations. I try and give the people a show because you talk about earlier your lawyer influences Boston legal and the practice or where I learned to be a trial lawyer.

Same.

How great was Bobby Donald and Alan Shore, those guys I looked up to. All the lawyers were great on there. You

Guys are old. I don't know who those guys are.

Have you not seen those shows, Tim? No, they're so old. I don't know where we find them. On what streaming platform? Do you know? They're good. They're so good. It's your homework tonight, Tim.

Yeah,

Yeah. And so acting does all that. It helps you just present to get in touch with your emotions and to be able to be comfortable to display those in a compelling way in trial and as well as how to have fun in there once you feel comfortable in your own skin and you can be, sky's the limit for trial because at the end of the day everyone thinks like, okay, trial lawyers put our suit and our tie on and you got to stand behind the podium. And I mean everyone's getting away from that finally. But you want the jury to see you as a person, not as a lawyer. Nobody likes lawyers, especially people on a jury, especially the ones that drew them there and ruined their weak or two weeks by making a mistake. So the more you can be a person and be you and less a lawyer, a much better chance you're going to have of winning them to your side and connecting with them on the human level and not as the lawyer level.

Kurt, one thing, lemme jump in real quick. I think I heard you talk about in a previous seminar or something about how you used your acting background to do almost a pseudo first person dialogue with yourself in closing, could you talk to listeners a little bit about that? I thought it was fascinating and I just loved it.

So I do a couple of different dialogue things. One of the things I like to do that not a lot of people do is I really, I engage my clients. They're not just sitting there as a cardboard cutout, they're like a real human being with emotions and they're the reason we're here. So I talk to them often at one point in my closings and we can get to an ENC closing and chat about it now is I take on the role of all of the doctors and I say, and things were tough for Steve, he got a lot of bad news from the doctors again and again and again. And so you hear things like, Hey Steve, we're sorry, but it turns out that you have fractures in your pelvis. It's actually, it's called an open book pelvic fracture. It fractured in half and we're going to do our best to screw it back together, but it's never going to be the same.

And we're sorry Steve, but those effects of the pelvic fracture are going to stick with you for the rest of your life. You're not going to be able to make love to your wife the way that you want to. You're not going to be able to walk without pain. And we're sorry Steve, it doesn't end there. It turns out you also fractured your tibia, the top and the bottom of it. And we're sorry Steve, we're going to put you through treatment for a few years to try and get your mobility back, but you're going to develop nerve pain in the leg. You're going to develop what's called aquinas where your foot just sticks up all the time and the pain will be so debilitating that one day you're going to be on the beach with your child and you won't be able to walk back up on the shore because the little pebbles in the sand will cause so much pain that you'll fall down and you'll be crying in front of your daughter.

And we're sorry Steve, because after that the news doesn't get any better with work, you're never going to work your job again. The one that you love, it's kind of like part briefcase, part not, and you talk to them directly and they're like, oh my god, my life is destroyed and they get emotional. So that's one of the things I like to do, which is a curt method. That's something I actually didn't steal that I've created. Everything else was stolen. And the other one is I learned from Dan Ambrose and his old Trojan Horse method where you do the dialogue with doctors and you talk about best used in opening where you say and listen as lawyer and you're just talking this as a lawyer as yourself, we had to learn what Steve's injuries were. So we went and we talked and we didn't know, we didn't understand them.

We went and spoke to his treating orthopedic surgeon and we said, well what's Steve going through? And then you just churn the other direction. You don't like change your voice or anything, you look the other way. And we said, so Dr. Smith, what happened to Steve? Well what's going on with Steve is that he fractured his pelvis in four places like an open book pelvic fracture. Well what's that mean, doctor? Well, what it means is that it's like opening a book and a split right down the middle and this is something that you can't come back from very easily. It's going to be with you the rest of your life. Well doctor, how do you treat that? Well, the initial treatment is pretty severe. We've got about 15 screws we put in there. We try and just carpentry it back together, but then there's a lot of physical therapy so you can go through the injuries that way and it's a more captivating way to explain, well this is what happened to my client and then he broke his pelvis. And the pelvis, I dunno, I'm the southern guy, but he broke your pelvis and you got to do this and this is how it goes. And he also had a break over there. That's just not a compelling way to tell a story, is it?

I mean, I don't know. That sounded pretty great actually. When you say

That is great and I will say that it is so powerful having now I've watched two of your closings and when you engage your client and you look straight at them, there's this moment where this tide of uncomfortableness ripples through the courtroom because people are unprepared for the realness of that moment. And what you said earlier about how acting helps you take the mask off of your emotion and be your authentic self, this to me is a really good example of when that happens in trial because there is, when you're talking to your client, you can see jurors be like, wow, he's really doing this, he's really talking to his client about this. And then once that initial ripple of realness moves through everybody, we're there and we're witnessing the conversation with you. And it does look like this just truly authentic moment between you and your client. Yeah, that's a great technique. I'm so glad you asked about that, Keith.

We had a trial before this one. I know we'll get to this trial in a second. It was like a trucking verdict. It was a nice verdict, like four and a half million in federal court offer was like, I don't know, 300 and the court let us talk to the jury afterwards. And my closing, I got a little emotional. It doesn't always come. Sometimes I cry, sometimes I don't. The better, here's pro tip, the more you know your client, the more he is not your client, but he's your friend and you learn about them. And before we got in the air, Tim, you were talking about going to lunch with your client this upcoming Saturday. I love my clients man. They're like some of my best friends, the ones I get to trial with because we spent so much time. So when you do that and then you actually tell their story, you will get emotional if you're a human being. I mean everyone has different ranges of emotions, but the point I want to make was that one of the jurors, he talked to him afterwards, he said, look, Kurt, we saw you get a little emotional. And that's when we knew that it wasn't just about the money for you that you cared about your client and that's when we knew we had to help 'em. So it can go a long way.

Yeah, no, that's great. Alright, well so let's jump into this verdict. Tell us a little bit about it. Why don't we start with the sexy headline. Tell us about the verdict, what was the total number, breakdown of categories, assignment of fault among parties, and then we could talk about maybe the total after the caps were applied and interest was added.

Yeah, great. So it was a $30 million verdict here in federal court in Colorado after a two week trial. Biggest verdict that I've had, we have tiny verdicts in Colorado. Keith's intro about the premises liability and the largest ever, it's not that big, but Colorado's got small verdicts, so that's okay. It's big for us. So 30 million verdict, which was great. The jury awarded and we can get into the caps and all that later, but it's important for every, that's kind of a Colorado thing, but they gave us 10 million in economic damages. We only asked for like 8.1. The other side I think suggested like half a million. They gave us $15 million in noneconomic pain and suffering in Colorado and they gave 5 million for fiscal impairment. And then there were a lot of different non parties, some that stayed on the verdict form and some that didn't.

And so the jury found essentially it was at 80% fault on the defendant that was in the case defendant BHS. They put 15% fault on our guy's employer skyline and then 5% fault on a non-party that wasn't there as well called Coach Schneider. So you do all the math, you break it all down and you add an interest. It's about an 18.6 million judgment and the reason the number goes down so much is because of Colorado caps, which is really sad and we've been successful in avoiding the caps in the past. This time we were not, and it has kept me up at night, made it feel like a loss almost to hear we lost $14 million or maybe like $12 million plus interest. I mean it was just a massive blow. So that was really sad part of the case.

Yeah, that's gut wrenching for the uninitiated. Can you tell 'em about caps In Colorado?

In Colorado, your non-economic cap is about five to $600,000. The court can double that. They always do for us and the big cases we've had, so we only asked for a million dollars and that's worked in the two prior trials. This time it did not what good trial where it doesn't reflect. Those trial lawyers were like get their asses kicked. I tried the best case possible and the jury just sucked.

Come on man,

I got this big verdict and I feel like I lost. What could I have done better? You got to reflect, you got to soul search. I've been thinking not going to make this mistake again. And so it kept me up a lot, but we got an appeal. We might be able to get the caps waived in the 10th circuit. There's good case law there, so we're not done fighting.

Great. That's great. I love that. You're like shitty lawyer sounds like Foghorn Leghorn. Who's that? He's the chicken, the southern chicken. He is like, oh, well I say I it.

I

Like it. Yeah, and you mentioned it, so the court did double the non economics in your case? They

Did.

Okay. And does the jury get to know that the cap is applied?

So I mean that was the one sign that I didn't do it completely wrong. We got a jury question and they're like, does it matter for Steve where we put the money and they gave a little example, if we have 5 million to give two here, two here, one there. Does it matter? And what do we have to tell them? Tim,

Follow the law. Can't

Answer the question. Just got to follow the law.

Yeah, I guess when I'm silent and shake my head like this, nobody can hear that on the podcast.

So yeah, maybe there's been a lot of media on this case, so they probably learned it by now if they watch any media at all. But no, they didn't get to know that. It's really sad.

How scared were you when you get a jury verdict and they throw out a hypothetical of 5 million in total damages? I was nervous. I was nervous. Okay, so you mentioned that there was these other parties and folks involved. Why don't you just give us kind of the brief rundown of the facts of the case and tell us who the players were.

Great, so here we go. So this is on a fracking site, oil and gas site. I've never done a fracking explosion. I've done electrical explosions but never a fracking explosion. But now I feel like I can do all the fracking explosions in the world. One man can do, another can do. That's from the movie The Edge to check it out, Anthony Hopkins, one lawyer can do, another lawyer can do so at a frac site. They're called frac tanks. They're like the size of a mobile home. Think that. And there were tending them on this site and in these frac tanks, two things get pulled out of the ground, water and oil, and that's what goes into these tanks. Water and oil. Some gas gets back into these tanks as well, although most is just burned off at the end of the whole system with this open flame called the incinerator.

And so what happened in this case is that these tanks are filling up with water and with oil and my client is a nighttime supervisor, Steve str, he's working with Richie Williams at night. It's like eight 30 at night. It's cold out. It's December in Colorado. They hear these noises, they think maybe it's just the crinkling of the tanks themselves, mobile home things because it's cold at night in Colorado and you've got hot oil going into them. So Steve sees it as a learning moment and he is like, Hey, let's just check this out and see what's going on. And we have one tank full of oil. Let's just cut that thing off just to make sure if anything's going, I'll just separate that and teach Richie how to do that. So Steve goes on one tank, Richie goes on the tank about 10 feet away from him and Steve's like, Hey man, shut the valve off of that oil tank, just like isolate it.

Richie does that, and about three seconds later, boom, the tank that Steve is standing on explodes and he flies in the air, I don't know, 30, 40 feet comes down. They measured this about 28 feet away from the tank that he was on. So massive explosion. The whole tank ruptures. Steve comes down on his legs, he gets that open book, pelvic fracture I was mentioning earlier, which the sacral part of your body, everything's connected to it, very, very bad, ends up suffering an MTPI. That mild traumatic brain injury that we develop later in the case, but all sorts of severe orthopedic injuries ends up being in rehab for a couple months. He has all sorts of external fixators put into his hips, his pelvis and also his leg. He goes bes in rehab for two months. He gets out. He ultimately decides to amputate his leg because of that beach incident I described a little earlier because all the fixes on the legs on the tibia weren't working.

He becomes an amputee and Steve is just an amazing human being. So this guy, I mean I love Steve when this happened. He was living his best life. He was an air force, he was in the Marines. He was kicking down doors in Fallujah just for fun before he went back to the Air Force and worked on all of our nuclear weapons. He's a guy that would take them apart and make sure they were not going to explode and could work if we needed them. He had two young kids at the time, two years and two months, and he was rising the ranks in the oil world and he had plans to be top man in the oil world. They call it a company man. He was just stratospheric rise. He was an outdoors man, mountaineering, he's been to Everest many times, skiing, snowboarding, sailing like Thomas Crown style where you tip the boat upside down and he was going to teach his kids all these things and then this happens in his life is just destroyed.

That was the case and we had to figure out, well, what happened? Why did this explode? Tanks shouldn't explode. We brought in very early on petroleum two petroleum engineers, a chemist because you need to cause an origin expert the cause, an origin of the explosion. We took us a year to figure this out. We had the help of different reports and OSHA stuff, and we ended up figuring out that the reason this tank exploded was because the company that delivered the tanks called BHS, they delivered them with holes in them. There were little pinholes, there were holes the size of quarters and there was a big pipe on the top and all these holes allowed oxygen into the system when you shouldn't have oxygen. And that created a flammable mixture inside and that ultimately flammable mixture, which shouldn't be in there because of the holes, drew that flame at the end, that incinerator flame back into the system and caused an explosion. That is the 32nd version of it.

I had a couple of follow-ups and first, so yeah, having met Steve and he just really is an all-star human being and if part of the job at trial is to teach the jury your client's hero story, he served that up on a platter and you mentioned that he did something and I want to just flag for the audience the importance of this. What were the implications of Steve telling Richie, Hey, get up there and shut off that oil tank.

So if he didn't shut off that oil tank and isolate it, that flame would've traveled from the tank that Steve was on to the oil tank and you would've had an explosion with 330 barrels of oil would've killed him and Richie would've destroyed the site, would've burned for days likely it would've been a catastrophic event. So Steve, they started the case blaming him, but even got their experts to concede in trial that Steve saved the day, didn't even ask for any comparative fault in closing. They completely abandoned it, which was great. It was still in the verdict form even though he is on the

Verdict.

Yeah,

Yeah, that's great. How did this case find you? How did Steve find you?

It was a listserv in California. Someone posted for an explosion case, Seth O'Dell, who's become a buddy of mine, and people just said, Zaner iss your guy for explosions. Now I didn't have any fracking explosions, but one-on-one explosion is no different than the other. It got referred over and that was part of the imposter syndrome I had in the beginning. Steve is brilliant and he knows everything about oil and gas. He's like, all right, so what happened was a knockout pot and the flame with the knockout. I'm like, what is the knockout? But I couldn't let him know. I didn't know what a knockout pot was, so I'm just trying to fake it. And so I know enough and we had to get the right experts to educate us so we knew how to do this and how to figure it out by the end of the day. I mean, I knew more than some of the experts because you have to become the expert, as you know. Tim,

I was going to say, I can vouch for that. I watched you in your pretrial prep meeting saying to this expert or that expert like, well, what about this? And what about that? And in fact, the finalized theory that got presented at trial came from the brain occurred. That's a great segue about finding the right experts. How'd you do that? Can you tell us about your, take us through the investigation before you filed suit. How much of it did you do? How'd you find your guys?

I asked all my friends who've done this kind of work in the past, who they used. We interviewed several, all the petroleum engineers were down in Texas. They're all very expensive. We fired one because we thought he was too expensive. And I think the guy we hired ended up costing us a lot more than that guy, but we told everyone, I was very honest, I don't know what I'm doing here. You got to help me out a little bit. So we found the ones that would be patient that would educate and we thought it would be obviously compelling in court. And so we would have these meetings at my office with those two and via Zoom or they'd fly them in. We also got a consulting expert that was local. He was a younger petroleum engineer and we could have more access to him. He would be able to answer our questions all the time and really walk us through stuff as opposed to the guy in Texas ended up getting engaged to our other star lawyer in this case, Sarah McCarran, which is hilarious. And now they're off gallivanting around the world. They missed the trial, but good for them. They're having a good time. She just texted me a few minutes ago,

Did they know each other before this case or is this how they met?

No, they knew each other. I don't know if they were dating right before we hired 'em or right after. I think it was the courting process. So a beautiful marriage is coming out of this case, so not just a wonderful result.

Great. Yeah, that's great. That's such a great story. And it teaches us how interwoven our experiences in our cases are with our lives, not we put our lives on a shelf to go do this case. It's like part of being human. How much money do you think you'd spend on the case by the time you filed it?

By the time we filed it? Oh, I would say a couple hundred 50, 200 maybe. We want to make sure we knew what we were doing. This is the most expensive case I'd ever done until we got involved in a toxic tort, and this blows us out of the water, but this was a very expensive case for us at the time.

Do you fund your cases yourselves or do you guys use a company?

We use Advocate Capital. We use a company which is, yeah,

I have a question. How does that procedurally work in federal court where you don't get very much of your cost back when you prevail? So for those that don't know, how does Advocate Capital work? Do they have a percentage of the case or how does that work?

It's recourse loans and they charge a little bit of interest, but not that much. And for most cases it doesn't really matter. So if you lose the case, we're on the hook for it. The advantage is just having that, being out that cash to run the business. You have that fund to do it, but they all get passed off to the client and unfortunately, you're right, Keith, we're having a cost hearing next week. We're not going to get much of that back. But what was great, another good segue here is that, so in this case, we sued the tank company. Our expert was like, you might want to sue the company man, the one that's on top of all this, and you could probably get something out of him. And so we brought in the company, man, they were called Schneider. They're the ones that the jury put 5% on at the end, and we asked him to put 5% on them because we had them in the case and our expert blamed them.

And then we settled with them before trial. And so we had to own his report that he blamed them. We couldn't say, well, I made a mistake, then he loses all credibility. So that was a lot of massaging that Tim witnessed some of that, and I think it came off really well and they gave him the 5% that we asked them to give to 'em. But it was great because that settlement funded almost all the costs, which was great towards the end. And so it was really nice. But to point, we made off the air, Keith, the other reason we got rid of them is so we sued this tank company and then we've sued this company, man. The company man then brings in what's called the operator from the frack site, the one that sits over everybody. So now we have three defendants, we have three sets of really good defense lawyers, and we have three sets of experts to deal with.

So I was like, we need to get rid of all these people before trial because if I'm up there and it's our one petroleum engineer that the causation was their big defense. That didn't happen the way we say it happened. It couldn't have, we have one petroleum engineer that goes in there and says, this is what happened. And then we face three other ones, all of 'em that say, no, that guy's wrong. This is how it happens. That's a tough obstacle to overcome. So I was like, we need to get rid of all these people. So we had to settle with that company, man, Schneider company, because if we got rid of them, then the other defendant would leave too. They were linked and we'd get rid of the best experts in the case and frankly, some really good lawyers. So because you go through Depots and you dodge bullets after the first lawyer gets through it, and then the other lawyers back clean up and they just crush your client or your expert, and you're like, oh, why are these lawyers here?

Quick question, did you get a Greenie Meyer instruction in federal court? Did they advise the jury that you had settled with that party? And did you embrace that? What'd you do with that?

They did. They did. We fought it, but it's discretionary for the judge, and we embraced it. We settled because they weren't the main culprit as the expert reports bore out. They weren't a traditional company man. And really the only thing that they did wrong was not catch the holes that the other company delivered these tanks with and who should be responsible for the holes in the tank, the company that delivers the tank with holes for everyone else who should have caught their mistakes. So we embraced the settlement. We were nervous about it. Tim, I don't think it really even made a dent.

No. Yeah. And when you said their causation was the whole thing, I remember this line from opening statement, which by the way, so two weeks before trial, they bring in outstate counsel to help try the case. Nice guy and everything. But I remember this line from his opening where he's like, so one of the theories is that the reason why Kurt didn't know or knew that they did not inspect these tanks is because the paperwork that goes along with these inspections was missing or not filled out or whatever. It's just a really bad look for them. That's how you verify that these inspections were done and the line from opening was paperwork didn't cause an explosion. It's like, well, yeah, you kind of see you looking at the jury like, all right, that didn't land the way you think it landed,

Right? So the liability for the folks listening is all about the negligence. They should not have delivered these tanks with holes in them. And if they had just done all the proper maintenance and inspections on these tanks between jobs, they go to frac site, they come back, they should be cleaning them, they should be doing what's called pressure tests. They should be doing visual tests, they should be doing liner tests, all these kinds of tests they should be doing to make sure they're not compromised. There's no holes in them. And we were able to develop that. A lot of these inspections, they didn't occur. They're supposed to do water tests where you fill the tanks up with water to make sure there's no holes in them. And so we had all sorts of missing inspection forms, the wrong inspection forms, and that was the, that's all we talked about.

And I'm sure the jury got sick of it, but causation was tough. So we wanted to focus on negligence, negligence, bad actions by the defendant. So it was all about their failure to maintain these tanks and make sure that when they delivered them, these are what's called vapor tight tanks. So BHS, the defendant had one and only one job, and that was to deliver a vapor tight tank. Because if you don't, the clip I played from the CEO over and over, you can have combustion. And so that's what we had to focus on. And I don't think the jury ever grasped the science behind causation, but they sure as heck grasped the idea that they didn't inspect these tanks. And so they try to write it off as like, well, paperwork doesn't mean you didn't do it, but it kind of does.

Yeah, no, you guys did a great job of simplifying everything for the jury. There was one sign slide, I remember it from your open and your close, that's just holes equals air equals explosion. Doesn't get more simpler than that. More simple.

Yeah, I wanted to communicate that one. If they just grasp that concept, we win. And you don't want to patronize them and treat them as idiots, not, but it took me six months to figure this out. We brought Tim in as counsel because a conflict developed between Mike. So we represented both Steve and his guy Richie, his coworker who shut off the valve. And there was no conflict when we started. I mean, I think we had a conflict waiver whenever we represent two clients and there's a limited pot money, which there usually always is potentially maybe not depending on the insurance policy, it's good to get a waiver conflict signed, a conflict potentially arose. I was like, we need to find Richie a good home. Tim was the first person on my list to call. Man, I respect him as trial lawyer. He reminds me a lot of myself. He's got boundless energy. I think he's great in the courtroom people, he's so likable, which is maybe the most important characteristic of a trial

Lawyer. You just got to pay cash to people, just give him cash all the time.

You just got to be likable. And I was like, dude, I'd love to try a case. He's all these big verdicts he got here in Colorado. We brought Tim in to handle Richie's case, and it was so much fun getting to do the trial prep work with Tim and running ideas off him because a good portion of the stuff that I used was based on his advice.

Kurt, is there any reason you can't explain to the listeners how the conflict arose? Because I think that's something that Colorado lawyers could really learn from.

Yeah, I mean it just had to do with settlement negotiations and demanding the policy limits in Colorado, you got to demand the policy limits to set the hook. And that's a big issue in our case right now for the Colorado listeners. We demanded the policy limits in mediation. We thought there's only 6 million in coverage. And they said no. Or I guess right before mediation. And then we learned three weeks before trial there's 10 million in coverage. So we had to demand the policy limits again on the eve of trial, which we really didn't want to do because we thought they would pay and we really wanted to go to trial. And so we did it in a way where they ended up saying no, which was great that we demanded the policy limits, but in the first policy limits demand, we need sign off from all our clients. And they couldn't agree on what they thought was a good split. And so we couldn't tell which one was, but we say, you should do this or you should do that. That's not our spot. We represent both of them. And so we brought in Tim.

Got it. Yeah. Thank you too for the very generous words. Appreciate that. So you told us that you filed suit ultimately against these three companies. Were there any pre-filing negotiations, any offers to settle before you filed?

No, I don't think we even asked for anything.

Okay.

This case came in the door, we're like, this is a big one. We're taking this to trial. It's going to be a lot of fun. Steve's catastrophically injured. There's not going to be enough money in a pre-suit negotiation. And we never even wanted the 6 million that we thought they had. We knew this case was worth a lot more than 6 million.

And speaking of Steve and just sort of his warrior spirit, I mean, I think that that's pretty well illustrated by the fact that he was reluctant to make this $10 million demand on the eve of trial that he was ready to go stick it to him.

He had to be talked into it. It was tough. Me too. We both did. Nelson aka for your Colorado listeners, does all our bad faith and appellate work. He is incredible. And a dear friend of mine, one of the few people I trust with legal work, I trust these two guys. Obviously I brought in Tim and I would do the same with Keith, but Nelson is amazing at bad faith, an amazing writer, an amazing appellate lawyer. So he's involved right now.

Yeah, nice. Filing the lawsuit you file in state court, federal court, and why

We filed in federal court. We could have filed in state, but they might've removed it. But our state venue was a place called Greeley, Colorado, where the explosion s, it's oil and gas country, very conservative. And of all my great verdicts, Keith was kindly mentioning, I do have an $11,000 verdict too. And I think it was like 11,200, and the pretrial offer was 11,000, like 800. I was like, oh my God, I lost and I hadn't lost a trial. And it's okay to lose trials. It means you're doing the right thing. You're trying hard. But in Colorado, note to listeners, pre-judgment interest counts for the judgment for who wins based on the pretrial offer, sir, offer of settlement. So we won that case with interest, but it was in Greeley and oh, that jury was tough, man. Really tough. And so I did not want to take this case to a Greeley jury. We ended up having Greeley jurors in our federal court trial. And you remember that? I think you were there for that, Tim. And we ended up keeping her, but I didn't want to try the case there. And I knew it'd be a complex case with probably a lot of brief writing and a lot of motions. And I didn't want to risk losing key issues with a state court judge. Not that state court judges aren't smart. They are, but I

Know they're not as smart as federal judges. I mean, on balance, they're just not. It's

The clerks, right? And the federal clerks, they're used to complex issues that they're not used to in state, I think. So I wanted make sure we had a good federal clerk that number one wouldn't be anti plaintiff, what you find in Greeley a lot, but also and not disparage Greeley judges. They're great. I knew it'd be complex, and I wanted a federal judge to be working on this in the federal court.

Those are pretty good reasons there.

I have a trial coming up in Greeley. I love the Greeley judges. Maybe we should cut that out.

That's right. Yeah. Greeley judges are too smart. They're too smart. That's why I was kidding.

They were going to remove it, so we just wanted to get the case moving. So we filed in federal court.

Yeah, yeah, right. No standard disclaimers. Obviously they're smart judges in Greeley. Obviously there's smart judges in state court, et cetera, et cetera. This is not legal advice. Do not rely on it. Yeah. And that's funny on your 11,000 winning once interest gets calculated, you mentioned famous philosophers and stuff. I think the very famous philosopher, Dominic Totto once said, it don't matter if you win by an inch or a mile, winning's winning from Fast and Furious. It's from the Fast furious.

Oh God, cook wood gas now. I like it. I like it.

So you filed a lawsuit. Let's talk about discovery. It sounds like you'd already done a fair amount of heavy lifting on the investigation beforehand, but how did you set out your discovery plan? And maybe more broadly, do you have a regular practice? Because this is something that we're looking at in just this past year. We got better about setting a discovery plan meeting when the CMO is getting prepared. We're thinking about it now, finally in my ninth year of practice. So maybe I'm a little late to the game, but do you have a practice generally about setting a discovery plan and then specific to this case, how did you do it?

So you're right. We did a lot of heavy lifting up until the filing of the suit. But what we like to do is once we get those initial disclosures, I have so many binders in my office and all my more environmentally conscious partners get very upset with all the paper that I print and my colleagues. But we put all the disclosures out, and I don't do it as much as I used to as I'm getting longer in the tooth. But Sarah did it in this case, and Sarah is amazing, and I can't wait for her to come back. Sarah McCarran, we print out all the stuff, and that's when we lay out the whole framework for the case. We start looking at jury instructions. We finally look at all the initial disclosures, and we start crafting our discovery. We've crafted all at the same time, 30 B six RFPs, RFAs logs, and we save some for later, obviously.

And we start mapping everything out that we think we're going to need. If we have time, we want that served the day after the case management conference because we don't want to fall behind the eight ball. And then we set DES out a month and a half, two months after they're due because inevitably gave a speech to this a j once upon a time, they're not going to give you the real answers, not give you the documents. So you have to build in time for fighting them to get better answers, better documents. And then you want to take your deposition, but you blink your eye and you're eight months into the case. So you got to do these things right away. You got to stay proactive because it's not usually the first or second des that win the case. For us, it's the third, the fourth, the fifth, the sixth des.

When now you've learned things and you start to hear inconsistencies from the later witnesses and things start to look like a coverup. And if you just take that first or second depo at face value, I mean, you're really still learning in your first depo. I mean, I'm always learning a lot in my 30 B six, half learning, half getting depo clips for trial, but it's those later depos that you need time to do where I feel you get the real good stuff. And so we outwork the other side. We take as many depots as we're allowed because we always find good stuff. So yes, discovery plan from the get go, once we get the initial disclosures,

And let me jump in. One thing that is a light bulb going off in my mind is you need to have that plan before you're talking about either the case management order or the scheduling order. Because unless, and obviously a case like this is very complex, so the number of depositions and rugs, it's not just a little car crash case, but unless you dig in and have a good understanding of what you need and what it's going to take, well now you might end up with a scheduling order or a case management order that doesn't allow you the tools that you need. At least that's what I'm hearing taken away from this. It's great.

That's exactly right, because in this case, we wanted a bunch of non-party depositions. They're going to want non-party depositions, not just the parties and witnesses from those companies. So one thing we ended up doing is just spending a lot of time developing relationships with the non parties as much as we could, not through depositions. So we could just learn things from them, figure out what are the tough parts of the case, what's wrong, what's good. We didn't end up deposing all of them. We ended up deposing a lot of them. But don't underestimate the ability to go talk to non parties without taking their depo. Be nice to their lawyers. Be nice to everybody. Okay, I'm 44 years old. Let's just be kind. There's so much vitriol in our profession, and I don't know how much you saw this, Tim, but this is maybe the second trial or third trial now where I just as nice as I can be to defense lawyers, man, I them every day ask 'em what's going on.

I send them emails, tell 'em they're doing a great job. I mean, I do everything I can to be friends with defense lawyers, and it makes the case so much more enjoyable. And when you are going to be showing them the slides you want to use for opening closing witnesses every morning, if you've got a friendly relationship, they're going to give you a lot more leeway than if you're at each other's throats. So just a little tip on the side and the non parties, just be nice to these people and you'll imagine what you can catch.

Yeah, I agree with that fully. I mean, just on a human level, if it could be the case that every interaction that you had with a person on a given day was pleasant, why would you not want that life for yourself? And then you think about reasons why a lawyer is a dick to the other side or whatever, and probably worst for a lawyer, it's not persuasive. It's just not going to move the needle. If anything, it's going to make 'em want to fight you harder. And so there's just no, yeah, to me it just signals weakness and cowardice and to be mean and vitriolic. Yeah. And to your point, I mean, talk about how it paid dividends for you here, not just on opposing counsel giving you a little bit of leeway on your slides, which I absolutely think they did. I mean, you were prepared to cut more than you did because they agreed to some. And I remember you being surprised like, oh, wow. They agreed to that. But the vice president of Steve's employer actually flew down to trial on his own dime to testify on Steve's behalf because Kurt had such a great, he was on the team. He understood that he was part of it. And the fact that he did that just on his own, took time off of work, paid for his own travel to come and testify for this man, was really powerful. And it totally kicked the legs out from under them on cross.

And he came from Northern Canada. I mean, it was far away. And were you there for cross when he was like, when they're like, and you came down Mr. Hurky at the expense of the plaintiff's lawyers to pay for your hotel and your flight, didn't you? No, sir. I paid my own way. Yeah,

That's great.

That's great. Okay, next question. We move on. It was so good. It was so good. Me and the defense lawyer, dude, he sent me a case. He tried to send me a case already. The fancy one that flew in from out of state we're pals. Oh

Man.

The last two out of state lawyers we text, I'm friends with these guys from two different cases. They send me cases. They're just a hired gun. No hard feelings. It was Derek McKay. I thought he was really good. I know we would all silently cheer when I'm done with a witness and we looked to see if it was Derek who was going to take the cross or the local Denver lawyers. And every time it wasn't Derek we're like, yeah. In fact, I started asking them. I was real innocuously. Hey, who's crossing? So-and-So tomorrow, oh, lemme find. Oh, it's not Derek. Okay, thanks. Thanks. And that was good intel to have.

Yep. No, that's great. And I think that the referral of a family or friend of opposing counsel is the gold standard of a referral because you did a great job and they liked you. They trust your work.

By the way I was texting him, he just beat sounds like a win for him. I frames things differently. Mark Lanier in a trial in Montana, him and his partner did. They got no negligence, just a strict liability find. And he was like, should have hired Zaner.

He's probably telling you about that one. So he is like, Kurt, I do win.

Now the problem gentlemen is seeing through flattery, right? It's impossible. Did he really mean that? He's just being that Who knows? But it was just a fun story. Mark Lanier is a better lure than me, obviously. He's great. I stole a lot from him. So

All in, what kinds of experts did you have and then what experts did the defense hire?

So we had a petroleum engineer. He's the guy that says how the site's supposed to operate, things are doing, going the right way, whether these tanks are inspected the right way and whether our guy did the right thing. Huge comparative default defense against Skyline against Steve's employer. The guy that came down and flew down and charged the company. That's who the jury did tag 15% on. And that is the one big cross-examination that Derek hired. Gunn did. And so they said, look, skyline didn't train their guys the right way. They didn't purge these tanks the right way. Purging is where these tanks arrive empty and they have air in them. And so you have to purge the air out, move it out by putting in well gas into them. This was a huge part of the case. This is their main defense. Thankfully it was a very complicated defense that the jury never got their heads wrapped around.

And we used really good visuals to diffuse it, no pun intended. And so our engineer had to say that we did purge the right way. So we had the engineer, engineer. Then we had a chemist who was our cause and origin guy, Sean Sapp. Oh, the engineer was John Hewitt, the cause and origin guy, Sean Sapp. He was amazing. Who explained all this causation stuff we talked about. And then we hired, those were our two liability experts on the damages side. We hired Life Care planner, Dr. Jeff Berliner, who's great with physician life care planning. He's a doctor and a life care planner. A good friend of mine, Dr. He is also with physician Life Care planners. We didn't hire him on this one. It was before I became friends with him, but he's also really good. Want to give him a shout out. So Dr.

He, we hired the life care plan was, I think it was like 3.5 million, which when we use net present value with our economist Ashi, Aarons turned it into 4.5 million for the longest time. Net present value always took money away, both inflation and all that. Now it increases it if they do it a certain way. So we use Ashi, Aarons as our economist who did net present value of the life care plan as well as our wage loss. Wage loss was interesting because Steve was, he's a supervisor and Steve, he got a new job shortly after the explosion as an IT guy and the delta between what he was making as the IT guy and the career path and nighttime supervisor wasn't that large. It was like $400,000. So I said to Ashley, the economist, I go, well dude, Steve wasn't going to be a supervisor forever.

He was going to become a company man. He didn't have any concrete offers to do that. But I go, let's let the jury decide what Steve's going to do with his life. Let's not just say vanilla. This is what he's going to make doing this forever. So me and Ashley devised a plan, a report where we said, let's give him the benefit of the doubt. He makes company man and makes a lot more money. And most company men work six months out of the year. That's traditional, but you can work more. So I said, let's not do a six month company, man future. Let's do a seven month and let's do an eight month. Let's let the jury decide how much they think Steve is going to work based on how much he's worked in the past. And Ashley, the economists are like, well let's interesting.

Most economists who say this is the wage loss, we always like to give the jury options. Let the jury be empowered, let them make the decision, not the lawyer telling them what it is. Say this is the different opportunities. And so with the highest wage loss, it went from like $400,000 or maybe it was like $600,000 from that supervisor thing all the way to 3.7 million. And the jury gave him, and that's the eight month one, they gave him every penny or more of the eight month one. And we only asked for the seven month one in trial. We said, let's be reasonable. Whenever you get a chance in trial to be reasonable, be reasonable and the jury will reward you. There were four different economic loss options and we said give 'em the second highest, not the highest. And they gave him the highest. Wow. Other damages, experts we used, what do we have? We had Ashley, we had Mark Guilford for past bills to say they were reasonable, but we called 'em off because they stipulated to 'em. We had You had

Functional capacity.

Yeah, functional Capacity Evaluator Evaluator, Sherry Young. Those are always good. They're a nice little piece because they can put your client through a series of physical tests to show what they can't do, which is more compelling than the person saying they can't do these things. Add some objectivity and science base to help drive up those impairment damages. Do we have any other experts, Tim? I think that's it.

Yeah, I think so. What about the defense?

So the defense on the liability side, they had their petroleum engineer and they had their cause and origin guy, big part of pretrial motions was that those other two defendants as we spoke about, were dismissed. But as defendants usually do, the remaining defendant, they crossed, designated those now defendant's experts, their experts were better than the ones they had. And so we filed a big motion in limine to say, Hey judge, they can only have the one expert that they hired. They don't get two petroleum engineers. I was terrified of this other petroleum engineer. He was really good. And Tim, you were there for the motions in limine hearing. Judge was going to give it to him. And I was like, judge, this is fundamentally unfair. The case management order says you get one expert per topic. If I knew they were going to be allowed several, I would've hired several. But now in a battle of weight, they get two patrol engineers. I get one. How does the plaintiff compete with that? And I think I changed her mind in court that day and she got rid of the now dismissed defendant, petroleum engineer, and they got stuck with theirs and it did not go very well for them. Who was your judge? Judge Wong in federal district court. She was great. Very thoughtful. Very smart.

I was just about to say, since we're offsetting comments earlier, let's give props to this judge. She was great. My view of her was that she was really fair, really kind, trying to do the right thing, treated everybody very respectfully.

She didn't rule in our favor all the time by any means. I mean there was a huge motion in limine. There were prior complaints by my client about this company's tanks and having holes in them at a previous job and that was not allowed in. And we thought that was devastating, but one less appellate issue looks great now, right?

Yeah. Real quick, I'll just ask you a couple more questions about discovery and then,

Oh, they're experts real quick. And they had Dr. Shenoy as their medical IME slash life care planner. And then Aubrey Corwin, who was their official life care planner who took all of Chino's recommendations and put them into a life care plan. And then they had an accountant to counter our wage loss claim to Bower, his name is, and said the wage loss wasn't as big and the net present value was all wrong. You should take money away from the life care plan, not add to it. Those were their competing experts and they didn't end up calling their cause and origin one at trial because Sarah kicked his butt so bad in deposition that the trial lawyer that came in, he looked at the de transcript, he's like, we are not calling this expert.

Wow.

And that was going to be Tim's expert. I was giving Tim that guy. Yeah,

I know that was going to be my fun in the trial, but I want to talk about those experts during when we get to cross and when we're talking about trial and all that, how did the depositions go? Did you video record them? And if yes, why

The expert depos or all the depos

Experts specifically, but if you want to riff on all depos.

So yeah, I think that's probably best for all. We record all of them. It's so critical for my trial presentation because at trial what I do is, and I try and depose everybody, I didn't depose their damages experts. I was like, Steve got blown up. Are we serious here? They're really going to question his damages. I couldn't believe it. And we had a lot of fun in trial with those experts. I deposed everybody else and I videotaped them because at trial I create my cross-examination based on in part the deposition clips I can create. What does that mean? So prepping for trial four weeks out, I cut all the depositions, which means I try and find good clean record clips. You would agree X, Y, and Z. Yes. And then I take all those clips and I think for this trial we cut 1100 clips from depositions and then I take all of those and I create cross-examinations and I work them into my cross-examinations.

Now I leave enough flexibility so I'm not just doing my script and going through all the clips, but I start with that and I get to know it really well. So then once the cross-examination begins, I go, your Honor, what I'd like to do is I have a set of deposition clips and I have 'em on a spreadsheet of a copy for you, your Honor, a copy for defense counsel. And so if this client, this witness decides to stray from his sworn testimony, we're going to impeach him with the video clips, but we want to make sure you have it, judge, and you're okay with it. And so I'll say Depo clip 47, you can flip to it. You can see the text right there on my spreadsheet question and answer. And so I can get permission to play it. And then you give it to the defendant as well because you don't want to slow down. It's all about presentation. Isn't it true that you think that there was a leak in the tank? No, I don't. Well, let's go to double clip 47, your Honor. With your permission, I like to play double clip 47 permission. Granted, you can play the clip and then you play it. It's that fast.

That fast, yes.

Especially if it's like the third one you've done. The first one goes a little slower, but once the judge sees that you've been honest about it being an impeachment, they don't even check the sheet anymore. They're just like, all right, go ahead, go ahead. And this way the defense lawyer came back, where is it? In the deposition? He starts flipping out the pages and trying to, that's not new impeachment. You got to eliminate all that. So they have clip 47 right on their sheet and they always end up agreeing. It's great, you can play it. And it's almost like an admission on their part that their client's lying and then you play it. And I mean whether you play, I mean I think in this trial we probably played a total of maybe 25 clips of the 1100. But oh man, are they powerful when you play them?

And there were some witnesses that you didn't have to play any clips with because they knew that the other witnesses before them got impeached with clips. And so they just are as honest as they can be. And then what's even better is that once you impeach someone with a depo clip and it's a video, it's so powerful. I think impeachment by reading is worthless. It looks like a lawyer trick. It's clunky and no one knows what you're doing. But when you put that video, that mugshot of them up there and they say the exact opposite of what they just said and maybe with some pauses and some attitude, it is just amazing. And then you control the witness. And so now they think we've done it three or four times. They think that every question you ask has a depo clip and not every question you ask does have a depo clip. So you go off script and you get 'em to admit to things that they didn't admit to and their deposition, but they're so terrified looking like a liar again, they just agree with you. It just pays so many dividends. So yes, long way of answering your question, we always videotape the depos

And lemme jump in with a comment and a question. The first comment I want to say is, I heard Kurt explain this process at some other CLE or seminar where you used the clips and you provide them to opposing counsel. And I stole that because it's brilliant and it works magnificently. So thank you Kurt for that. And my question is, is it okay to just use Zoom and record via Zoom to create the clips or do you have to bring in the full certified videographer?

Zoom's great. Tons of zoom in this one.

It's so easy. We do everything now Zoom, I do like in-person depositions, but it just feels like the ability to record with Zoom is so cost effective and easy. Kurt, did you just cut all the clips in house, I'm assuming?

No, we hire a trial consultant. His name's Steven Patway, elite trial consultants. The defense lawyer got his card in the middle of trial, which was great. And Steven's amazing. He's great to work with. I mean it's a collaboration. These slides are 50% me, 50% him? Yeah, depends on the slide. But the clips, he cuts all of them and he's not cheap. It's totally worth it and it's a lot of work for you because you got to read through all these depos again and thoroughly and cut them. I just put brackets around what I want and that takes a long time. You got to think about it, what do you want? And then you got to put it into a cross-examination. It's a massively intensive time process.

I was going to ask about your process. So you'll go through the de and you'll just put brackets on what you want, and then do you hand it off to a paralegal or an associate to create the spreadsheet?

Exactly. And then she'll have between 50 and 180 clips and then she gives it to the tech guy and then he cuts it.

Okay. When you have these clips, do you have the text scrolling as well? Kind of like subtitles on the clip, is that right? Yeah,

We call it syncing. Yeah, exactly. We didn't always do that. And then I'm like, why aren't we doing this? It's way better. So yeah, so when people speak on the clip, it's the text comes in. Have you

Run into any issues on that with Zoom? I haven't done that yet with Zoom, put the text on a trial with being certified syncing or anything like that.

No problems. And that's the court reporter's office do that for you? Actually, I think that's something they do, which you can just get that done, which is nice. Got it.

Sweet.

This says, first of all, what we did here, the plan was pretrial workup set up. I have learned so much and I think just so we can break this up into manageable chunks, we'll go ahead and take a break right now. We'll shoot into episode two here in a moment. Thank you all for listening. I hope you all are as inspired as I am and stay tuned because now we're going to come back and we're going to talk about the trial. We'll be right back. Thank you for joining us. We hope you've gained valuable insights and inspiration from today's courtroom warriors. And thank you for being in the arena. Make sure to subscribe and join us next time as we continue to dissect real cases and learn from Colorado's top trial lawyers. Our mission is to empower our legal community, helping us to become better trial lawyers to effectively represent our clients. Keep your connection to Colorado's best trial lawyers alive@www.thectlc.com.