The key to winning a big verdict in a wrongful death case often lies in showing jurors the opposite of big money: scarcity. What is it that the decedent didn’t have? It could have been the last lick of ice cream. Or getting their affairs in order. Whether they were 20 or 80, they lost valuable parts of life. Dirk Vandever suggests that the job of the plaintiff’s lawyer is to put a value on that scarcity. In this conversation with host Charla Aldous, he explains how he’s done it in his successful wrongful death practice over the past 50 years. Tune in as he unpacks his "two oaths" approach to unlocking honest panel responses and his two-word advice for young lawyers.

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More Likely Than Not that 0.01% is all it takes to tip the scales of justice. Join us as inner circle legend, Charla Aldous, Eleanor Aldous and Caleb Miller walk you through the critical moments, big decisions and bold strategies that win high stakes cases and show you how to turn that 0.01% into a game-changing verdict. You're listening to the podcast where winning is More Likely Than Not. Produced and powered by LawPods.

Hi there. Welcome to another episode of More Likely Than Not. This is a podcast that is produced by the Aldous Law Firm and we are so lucky today to have the great Dirk Vandever with us today. Hi, Dirk.

How are you doing, Charla?

Well, I think I'm doing okay. How do you think I'm doing?

I think you're doing great.

Okay. I'm so excited to have you on our podcast. I've heard about you forever. You're out in Kansas City, Kansas. Am I correct?

Kansas City, Missouri, but I used to live in Kansas. Oh,

I thought you were Kansas. Do you practice in both Missouri and Kansas if you live in Kansas City?

You have to have local counsel, but yes, I mean, it's just on the state line and of course now when the chiefs are broadcast, people will say Kansas City, Missouri, no, it's Kansas City, Kansas because the chiefs are going to move to Kansas.

Okay. That's definitive then. Well, Dirk, I've heard that you are successful in many aspects of trying lawsuits, but particularly in wrongful death cases. Tell us a little bit how you got involved in this business of trying cases for people.

Probably the decision for me to become a lawyer spraying from my gene pool. I have a picture on my wall of a United States attorney for the state of Illinois on top of a bootlegged truck of liquor. That was my great-grandfather. So my great-grandfather, my grandfather, my father, my mother, my uncle, my brother, they were all attorneys.

Wait, so on both sides, maternal and paternal?

Well, my mother was as we talked about, and we'll talk about her maybe a little bit later on, but the journey to specifically about my focus on wrongful death probably was a personal one. And that is in my senior year of college, I was getting ready to go to the University of Missouri, Columbia. And my father, 50 years old, perfect health, trial lawyer, very successful, had used and done all of the instructions on a drill and he did it exactly right. And as a result of that, he was electrocuted, killed. To the point that my mother discovered his body seizing against this drill and literally had to kick the drill out of his hand. At the time there were the three of us, the three boys, I was the oldest, then the middle and youngest all in school. My mother, who was my hero, had gone to school all her life.

She, as you know, was a violin scholarship Indiana University, had a major, went to a master's, had a PhD, and then ultimately became a lawyer. And so she had not had the opportunity to make any money. So you have four different people all dependent upon this 50-year-old perfect health trial lawyer. At the time, Missouri had a $25,000 wrongful death limit. And by that I mean not a $25,000 non-economic limit, a $25,000 limit, period.

For lost wages, everything?

Everything.

Loss of earning capacity. Oh, wow.

Medical bills, whatever it was, $25,000, that's what the value of a life was. That's the value of what a relationship was. And so at the time a suit was filed and because it would be a piric victory to win a huge judgment only to have it go down to 25,000, the lawyer settled it for 12,500. They took half and my mother got $6,250 for her 50-year-old husband and the person that provided all of the financial support for all four of the people in the family. So that probably as much as anything else got me on the path of being righteously indignant. Did you know Lance Welch by any chance from Kansas City?

I actually did. I met him like two times.

Well, Lance was a terrific lawyer, held all of the verdicts, award-winning verdicts, the biggest verdicts, all of that. And he once told me, Charla, Dirk, I just don't get it. I am perfectly fine with a personal injury case. After all, in many of my cases, people could really use the money. Wrongful death, I don't get it. It seems to me like when I hear from the jurors, this is blood money. I don't have a really good reaction to it because deep down inside in areas that I don't want to talk about, I see their point. It may be blood money. So it was both a challenge and a personal impact on me that got me really stared in that location.

So do you limit your practice to only wrongful death cases or you just take a lot of them?

No, I just take a lot of them. And for whatever reason, there was a period of time there where this was a few years ago where I think I tried like six or seven wrongful death cases within a fairly short period of time. And so no, it's not exclusively what I do, but it certainly is something that is a labor of love for me.

And when you say blood money, what I've experienced is when you have the family come in and they've lost a loved one, I have to be really upfront and say, "You may not feel good about a win because you're never going to bring your family member back." How do you handle that with your clients when you're talking to them about the purpose of the case?

I talked to them in the same way that I would talk to jurors. I've given them a number of talks over the years on wrongful death and essentially what I'm trying to get at is when you talk to somebody and you say, "Who are you? What do you do? " And they say, "I'm a personal injury child lawyer." Well, that means to them, well, I handle both personal injury and wrongful death because it's one homogeneous mass. It's kind of fungible and it is not. Wrongful death certainly requires a lot of the same skills as personal injury, but there are what I call the kind of seven deadly sins and I say seven deadly sins and every time I list it out, it turns out to be a lot more than seven. But if you think about it, what Lance is talking about, what you talk about is this is blood money.

What possible good would it do to give money for somebody that's been dead for four or five years? The money doesn't go to the person that was wrongfully neglected by a doctor or crushed by a speeding truck and death, by the way, takes every one of us. I lost somebody that was dear to me and I didn't get any money. Or even worse, if you, for example, are related to a service person, they get $100,000 and it's literally called a death gratuity. That word comes in there. It's a gratuity. And furthermore, it's impossible to do. This is priceless and even attempting to put a dollar value in life cheapens it. It's inappropriate. I don't want to do it. It's not going to bring them back. And if there's an older person involved, my heavens, that person's already had a very full life. You're not talking about money for what he's already done.

You're talking about money after the death and there is no money after death. There's no economic loss and all of the loss is in the past. So I talk to them very directly, my clients.

When you say them, you're talking about your clients.

I talk about the clients, but I'm also talking about the jurors because I say what I'm talking to you now about is something that I'm going to be talking to the jurors about. I'm going to talk about that because I want them to tell me about this. And I guess this relates a little bit to the talk that I've given over the years about two bites at the apple. On the one hand, it's cause it's King, the Mitnick. On the other hand, it's built a tribe around a Jerry Spence universally accepted principles. So I believe that you can do both and I believe actually people do both. I don't think anybody just does one or just does the other. So I talk to them about that and I do when I'm in voir dire, I do want to talk to the jurors about that. I want to encourage them to speak with me because some people, and I'm sure you've had this experience, some people maybe more than anything else that we've talked about say, "I'm not going to place a dollar value in life." I mean, that's priceless.

It's inappropriate thing for me. It's an inappropriate thing to ask me. So do you understand that this is what we can do? The only thing we can do is to try to seek a just dollar value that will talk about the relationship that you had with this person and everybody else on the jury, you understand that that is what we're doing and that's honestly what our system is made up. Our system is a dollar of value, which is the only way to hold anyone fully accountable for the consequences of their actions. Anything less than that, you've got to say, what do we do? What do we do if we don't do that?

It's interesting, Dirk, that you brought up with the older people because I have heard some lawyers say that they really do not like to take wrongful death cases if the decedent is elderly. And I can understand the challenges, but my own belief is that can be a plus in some ways. How do you see it?

I absolutely agree with you. The value of anything in life in some respects deals with the scarcity of what it is that you're valuing.

Oh, I love that. Say that again. That is really good.

Well, right, but it's anything. I'm saying you could value things, tangibles, but to a great extent, the value of anything you are attempting to value deals with the scarcity of what it is that you're talking about. Here, you're talking about a person who has lived absolutely, but I need to find out, does somebody here feel that the quality of life is less for an 80-year-old than a 20-year-old? Here's the thing, that 80-year-old, in fact, Lance used to say this all the time, says, "That's the last lick of the ice cream. This is the most valuable, precious part of the life. It's what you have left, and we now know that it's very little left. And so the scarcity of that, the meaning of that, the importance of that, taking that away and taking away the ability to talk to people about getting your affairs in order, saying goodbye, doing the last things on a bucket list.

Those are all critically important. I say to you that somebody that has been lost before their time, understand that we are not talking about somebody who died from an illness. We're not talking about somebody that was a hundred years old. We're not talking about somebody that died for any other reason other than somebody did not do their job of being careful when a life was on the line.

Again, this is the only way that we keep anybody fully accountable for what they do. So I say it does not diminish by virtue of the fact of this old age. I think that it may, if anything, increase it.

I love hearing that because I'm sure you've heard it too, that why would you take a wrongful death case of an elderly person? They've lived their life. They had a good run of it. But we work really hard our whole life. We raise our children. We try to make money so we can retire. And then you get the point where you can live your twilight years. I love the three things, the scarcity of it, the last lick of the ice cream. That is absolutely beautiful. That's really, really great. I'm going to use that. So you don't hesitate to take the wrongful death cases of people that are up in years.

Absolutely not. Absolutely not. I mean, they still have and bear in mind that the defense argument, first of all, in voir dire I talk about that. I want to make sure that the people that are on this jury are fully embracing the fact that I'm going to value what was taken away from these people. I'm going to ask you to value. What were the last few years of the relationship between this man and his wife? What were the value of all of the times that they would be sitting together, maybe just at the end of a long hard day and the comfort that they got? What's the value of them going to those last times to visit their kids all out throughout the country? And again, it's significant.

And the bucket list, that is good. The scarcity, the last lick of the ice cream and the bucket list, that's going to be my trilogy in an elderly wrongful death case. I love it. I had read that you have been trying cases for 50 years and after listening to you just this little bit, I want to come watch you sometime. You sound a litle bit like a preacher. I mean, you're getting it going here.

Well, yeah. Occasionally people say that. I don't know if I have a Texas or a Missouri twang, but people say you're nothing more than a preacher.

You're getting fired up. I love it. So I want to talk to you about voir dire. I've been practicing for 40 years and I can tell you that the way I used to approach voir dire a couple of decades ago is very different in how I approach voir dire now. Have you seen a change in that in your practice?

Absolutely. Let me go to maybe an offshoot of what we're talking about. When I talk about the two bites, and I'd love to hear what you have to say, Charla, about this, but when I talk about the two bites, I do think that there is a place in jury selection. I always call it jury selection and not voir dire.

I like that. Well, hey, wait, first, why do you call it jury selection as opposed to voir dire?

Because nobody understands what voir dire means.

That's really good.

I believe that every foreign word that you use, every complexity that's unnecessary distances you from the jurors who want somebody to have a simple direct path to what it is that you're talking about. I start out every case saying something to the effect that is profound and as significant as this is the death of a 32-year-old man, not too far away from here on the streets that we go every single day. As important as that is, this is also a very simple case. It deals with whether or not somebody is going to respect the health and safety of other people on the roads and obey the speed limit, whatever it is, whatever the simplest way is to talk about it. Now, I don't know if you've ever heard this saying, but the simplest story wins.

I have not heard that, but I firmly believe it.

Absolutely. So back to your question, which is voir dire and I really want to hear from what you're saying too. Have you gone from mint that causes king to now building the tribe?

I don't know if I would even categorize it either way. Way back when when I would try cases, I tried to more tell my story in voir dire and be more of an advocate and I really didn't draw out the poison and it just really wasn't done a lot, at least around the people that I was trying cases with. And now I talk nothing about the case pretty much and it's all about their thoughts and feelings about various issues. Is that how you approach it?

Absolutely. Okay. So for example, I gave you probably what was 10 different deadly sins of why a wrongful death case is different than a personal injury case. But one of the things you can do is you can package this and I will admit that these are just things that I have thought of and other people may totally disagree, but I believe every one of those things that we just talked about is something that one of the 80 people ... We get big panels here. We don't get 12 or 18 or whatever.

We usually get about 60 in Dallas.

No, that's a big enough one. So 60, 80, I mean, somebody in that panel is going to think this is blood money. Some person in that panel is going to think this doesn't bring this person back. Some person that on this panel is going to say, an 80-year-old, somebody is going to talk about those things. And so I kind of smush it all together and I say, look, I want to be upfront with you. This is the reason that we're having a two-way conversation. This is the only time in this entire process that you and I get to talk and we actually get to hear from you. And so we really need and this process requires us to hear what you truly, brutally, honestly think about certain things.

Well, I love what you just said. This process requires us. I'm taking notes. Okay, keep on going.

Well, this may be off topic a little bit, but this is something that I've never done and that I'm now going to do and I'm probably going to do it in my next speech at TLU, which is there are two oaths. I don't know if you've ever heard this because I've never heard anybody say this and it may just fall flat on its face, but there are two different oaths that we're dealing with. Two, each one of you, each one of the 80 of you stood up, put your hand above your head and took an oath as a panel member to be brutally honest and tell us exactly what you think. That's on oath and that oath is that you're going to unleash it. You're going to let me have it. You're going to let the chips fall where they made. You're going to dig deep and if you disagree with the law and if you disagree with some process that we're doing, you've taken an oath, you've given your words, you're going to tell us this is a safe space.

And not only is it permitted for you to say this, we rely upon you to do this because with 80 people and you know already there's only 12 that are going to serve on this jury with 80 people and only 12 on the jury, why is there 80% more than you need? Why do you only take a small fraction of this?

And are you telling the jury this or are you telling me this? You're going to say this in jury selection. Did you notice I didn't say voir dire? I said jury selection. Yes. I'm a quick learner, Dirk. Okay. So you're talking to the panel.

Yes, absolutely. And so we are talking about you being just completely open about things. I always have all of these thoughts going in mind, but there's too many-

Don't forget, we got to go to the second oath here in a minute.

Oh yeah, yeah, yeah. Okay. All right. The first oath is the oath of the panel and the reason that 80 people have been assembled is that no on human being can be all things to all people. It doesn't happen. Human beings don't act that way. Ms. Jones, have you ever heard of the phrase product of our own experience? What does that mean to you? Well, that means that over my lifetime there are various things that I have done that caused me to look at things different ways. Let me give you a quick example. Let's assume two different women went to the same school. They have the same experiences, they have the same mentors. Heck, they look like they're sisters. They do all kinds of things together. And then without anybody going through all of this long process of these questions in jury selection, they're picked to serve on the same sexual assault criminal case and everything relies upon one witness, happens to be a police officer.

Well, one of those women has had a daughter who was sexually assaulted and the other woman has a son who was falsely accused by a police officer of sexually assaulting somebody else. Guess what? If we don't go through this proces, if we don't ask you questions really probing about what you really think, not what's the politically correct answer, not what's the right answer, what's your truth. If we can't do this, you know what's going to happen on that case? There's going to be two diferent women who are as similar as you could possibly find and they're going to listen to the same evidence from the same people under the same law and one is going to say guilty and the other is going to say innocent because we didn't have an opportunity to go through this with your first oath.

That is absolutely brilliant. And I don't say things I don't mean Dirk, by the way. I love that. So good.

Real quickly then the second oath. And by the way, again, the oath we're talking about here, some people I've had the experience of being called as a juror twice. My heavens, I just couldn't be more excited. Here's an opportunity for me a little bit like a doctor becoming a patient. Here's an opportunity for me to actually feel what it's like. And I was excited. I really was. On both occasions, I got a summons and it didn't say, "Hey, Dirk, why don't you drop by and kind of share your thoughts about things?" It said, "You will be here on this specific day and we're going to tell you when you can stand and when you can sit and then you're going to be paraded into another room and you're going to be questioned by two people you don't ever know. " And I thought, "My excitement's waning a little bit." So folks, I get it.

I get what this is like. We all talk about the power and it is true and you will find it at the end of this, the 12 people, how powerful you are. Anybody here say, "Yeah, I feel really powerful now." I opened up that summons and I said, "Yes, jury duty." Anybody like that? No, nobody's like that. Anybody that does think of like that in any way. The second oath is the oath of a juror, which means that you're telling us if you disagree with the law. We want you to tell us that. We have to hear that. We want you to say, "Yeah, this issue throws me off. Almost doesn't matter what the evidence is. I'm going to be leaning that way to begin with. " But the 12 who are selected that we, you, because you're now officers of the court, when you raised your hand, you become an officer of the court just like we do, just like the judges, just like everybody in this court system, you are an officer of the court and we're all going to find who are the 12 that are the best fit, not in general, not who's fair, you're all fair.

Who's the best fit for the specific issues of this specific case? It'd be a little bit like saying, "Here's a pair of shoes." Boy, they are good looking shoes. Go ahead and put them on. Whoops, three sizes too small, but I want you to now to stand up and I want you to do an eight-hour shift for the entire week. It doesn't fit this way. You can't shoehorn everybody into this because what you'll be able to do, many, if not most of you will say, "I do have a leaning a little bit on the issues of this case. I'm probably better off in any one of a number of dozens of other types of cases, a criminal case, a property damage case, a business case, whatever it would be. " So the second oath is the oath of a juror and the oath of a juror says, "I am going to sit on this jury and I'm going to give a verdict to the letter of the law." See, we no longer had a situation where you say, "I disagree with the law." Those people are now on perhaps other juries.

This is an oath where you are going to say, "I'm going to decide this case on the exact rule of law that is given to me on the evidence that I've received and nothing else." So they're two very different types of oaths here and they're both important.

I think that is fabulous. I would greatly encourage you to do that at the Trial Lawyer University. I took notes on it. Caleb did as well. He's over here writing his way in. I'm writing. I want to go back just a minute to the two bots of the apple approach. You're talking about the Spence versus Mitnick. For our listeners who don't know what you're talking about, what is that concept?

Okay. I say the Mintic pro ... Keith and I are pretty good friends. Keith Mitner wrote a book called Don't Eat the Bruises, and also another book that was called Deeper Cuts. And essentially what he does is he tries to find out those people who really have a core reaction to things that really shouldn't be sitting on the jury and a number of people have adopted that. That's the way I still initially start out that way. And then there's the Jerry Spence, which is I want to rally everybody around universally accepted principles. You will find some people that are rabid about both approaches. You're going to hear people that say something along the effect, "Hey, if you think that you're just such an eloquent individual that you can talk somebody out of an experience and a value that they have that they have formed over 50 years of life, good luck because I ain't that person." And then on the other hand, Charla, you're going to find the Jerry Spence disciples who are going to say something along the lines, "What you're doing here on the cause is you're fear-based.

You are picking a jury not based on who is best for this case. You're picking it based on what you fear and that's not a good thing. And what you ought to be doing is you ought to be rallying around responsibility. Everybody says you ought to take responsibility for the consequences of your actions. Everybody says you shouldn't lie when it really matters. Everybody says certain things such as the safety of the people that are on our roads that we share the roads with. They deserve our respect and they deserve it by having everybody that has made the choice to get behind a wheel that those people will actually do what the law requires. In Missouri, for example, it's used the highest degree of care, which I can also use to get people off for cause, by the way.

Let me ask you this. Just listen to you, Dirk. Don't you think that there's a happy medium between those two?

That's my point. When people get so wound up, I know you would never think I would get wound up.

Absolutely not. You're docile.

Okay.

That was said facetiously, by the way.

Yeah. Right. Yes, absolutely. But people really get wound up. It's got to be one or got to be the other. It's one or the other. I don't buy it. I really don't buy it. I think that I do want to find out. For example, in a death case, I truly do want to find out there are some people that would be great jurors, for example, on somebody that was paralyzed and requires or they would require prosthetics if they have amputations or they're going to require additional surgeries. Yes, of course I would do that, but I don't think I just don't see how you put a dollar value on life. I want to know who those people are and I want to get those people off. And then this is what I say. I first say, tell me about those These people, for whatever reason. You could say that every one of us die.

You could say that this is blood money. You could say that it doesn't return the person and no, it does not. You could say this person is older. You could say, and I put burp, I'm putting all of those things in there and people will tell me about whatever resonates with them. And then I will say, now we've heard from a number of people, genuinely good people who have given us their true thoughts. Anybody here feel that have a different view? Anybody here views that these lawsuits that we have, they fill a purpose. I mean, they keep people responsible. They ask us to take accountability when we take on a job that deals with the safety of people. So I believe that I've got the people that are really bad against me and then I say, "What about those other people? What about some other views?" Now, maybe you've had different experiences, but I always get people that will talk about that.

Absolutely. Let me ask you this, Dirk, and then I want to move to opening, but on damages, how do you address wrongful death damages in jury selection?

Well, okay. So are you talking about the dollar amount?

Yes.

Okay. In Missouri, we have a law that says I cannot ask them to commit to a specific dollar amount and it's reversible error for me to do that. I know in Illinois there's a number of other jurisdictions it's okay in. So the way that I approach this, first of all, I'm asking myself, am I valuing a death? Am I valuing a life? And I don't really look at it that way. What I am valuing and the folks that are going to be on this jury, you're going to hear about what the public policy of our state is. You're going to hear that in a death case, you are going to be asked to place a dollar value on comfort and companionship and society and counsel, whatever. One of the things I know Caleb and I talked about is I like visuals and I used to have visuals all the time for jury selection and I'm embarrassed to say I don't anymore except I do on the dollar value on jury selection.

And that is I have one that's a pie chart. It says comfort, companionship, society, counsel. And then over here, I don't have it so small that people are shocked to buy it, but I have here slightly smaller than any of the other nine slices paychecks or medical bills or whatever it is.

The economic. Yeah.

Yeah. So I have that slightly bigger, but everybody can now see that the great overwhelming majority of what this case is about, which deals not with the value of life or the value of death, it deals with the values that our state as a matter of public policy have placed on the relationship between this husband and his wife, between this father and his son, between this father and his daughter. And every one of those, each one of those has their own special relationship. And you are going to be asked to place a dollar figure for each one of those elements for each one of those relationships. I

Love the pie chart. That's really good. Okay. Opening statements. How do you usually approach them? Some people put their whole case out there. Some people focus on the plaintiff, some focus on the defendant. What does Dirk do? Oh, that sounded really good, doesn't it? What does Dirk do? I like that.

Well, I don't know that it's remarkably different for me than most everybody else. I do almost always focus on the defendant and the defendant's conduct. I never, ever want to say that there's a hundred percent rule for everything. So for example, one of the things that I know you and I do not like necessarily is when they say we're stipulated. We're agreeing that what we did was negligent.

I hate it when they do that.

I do too. Although what I do do when that happens is in jury selection. I will say, I just go back to jury selection because I do think that's relatively important. What I do say is, now you're going to hear that the defense team over here, the defense team over here have looked at everything and they have decided that running a red light at 90 miles an hour was wrong. They're going to say that. I'm going to admit they're liable for it. And what I need to hear from you is anybody here think they ought to get some credit for that. They ought to get a discount.

I love it. That is really good.

So that's what I do this. Let me tell you the one literary device that I use in wrongful death and I'm going to be so embarrassed unless you ask me for the source that I'm not even going to tell you who this is.

So does that mean you want me to ask you about the source or you don't?

I'll tell you about it and I'm embarrassed. It's Bill O'Reilly.

Oh, that's painful.

I know. I know. I know. But I think this is pretty good.

I'm glad you put it out there. That makes me feel better.

Let me take you to a morning. It's a Monday morning. It's misty. It's cold out. It's in the winter and Ms. Gonzalez gets into her truck and she puts it into drive. She presses on the gas and she's now driving and now I have a map that I'm showing. She's driving along this route and at six and a half miles outside of the city, Ms. Gonzalez is in the wrong lane. Ms. Gonzalez is in the lane for oncoming traffic. Ms. Gonzalez is headed right toward somebody that is in their correct lane and Ms. Gonzalez strikes a red SUV head on and knocks that red SUV off the road over and over and into a ditch.

And the person that's in that red SUV, her name is Maria. Maria has an hour left to live. Maria has an hour in which she will remain alive during which time she will find it hard to breathe and she will experience pain racking throughout her body until she ultimately dies. This case is not so much about that as it is what the impact was that this young lady was taken far too soon. Now the literary device that I used was this person, everybody I think probably does it up to that point. This person has an hour to live or a half an hour to live. Or if they die immediately, you're talking about as the person is approaching the person in the red car, the person that's going to be struck in just a few minutes has five minutes left to live. I don't know whether that's really effective or not.

It's something I do.

So I didn't get it. I'm sorry. When you say they, are you talking about what they did in their life before the pain and suffering is as important as the pain and suffering they went to after they were hit?

Well, no. What I'm trying to say is the way I would normally have done it is just to say Ms. Gonzalez strikes Maria and she dies. And instead I'm trying to build up the drama a little.

Oh, I get it. Oh yes. I like that. You're building up the drama of what she was facing.

Yes. Yeah. And particularly if she is alive after the impact, particularly at that point, you're saying that she's got another 60 minutes and then you segue to the closing argument.

I love that.

Of course, that talks about I'm going to ask you for $6 million for the 60 minutes that Maria experienced after she saw the terror of this truck approaching her after she started to have problems breathing after she, et cetera.

I really like that. On the bad facts, how do you deal with that? Do you just bring them up for the first time in opening or do you address bad facts in jury selection?

No, I address it in jury selection. Charla, I've been a fan of yours ever since I heard a webinar that you gave probably four TL to you about your greyhound. That would seem to be a relatively bad fact that somebody was using heroin. On a scale of good to bad, that would not be normally something that I would expect that folks would put into the good basket. No, I bring it up. This is kind of Keith's deal too, which is you have the defendant's favorite facts. Whatever it is, there's a gap in treatment. It's subjective. There's not a lot of property damage. Whatever it is, what I try to do is I try to say, "Is there any way that I can argue to get rid of it in emotional limine?" If I can get rid of it, I want to get rid of it.

And I know a lot of people, for example, in our Missouri and Kansas listserv, there's been a bunch of discussion back and forth about nonprofits, which just irritates the hell out of me because what a nonprofit means is the people that are making millions at the top have found a really clever way to avoid having to pay taxes.

Exactly. Isn't it the truth?

Yeah. So whatever it is though, I want it out. And if you can't get it out, then you try to own it.

That's exactly how I've always thought of it. Dark embrace the bad facts. I always look, Mark Mandel's book, Case Framing, which I love the, I just can't get over it. Pick your first, your three to five, I just can't get over it that are good for you and you're three to five, I just can't get over it that are bad for you. And that's really helped me because I'm like, how am I going to lose this case? You deal with it from the get- go in jury selection.

Yes.

Okay. All right. Witnesses in wrongful death cases. Long ago they used to call them grunners and groaners. I remember that. Did you ever hear that term?

Yeah, that's what the defense lawyers always call it. They go- That's

What they did. How many growners and growners are you going to call? I'm like, okay, you mean people that are grieving? Is that what you're talking about? Yeah. How do you do that? More is better, less is more? How do you approach bringing people on to talk about the decedent's life?

And again, I'm not suggesting that this is the right way. It's just the way that I'm now doing it, which is first of all, I don't want to repeat. I don't want to repeat the exact same story, but I want to have a bunch of different people talking about vignettes. A bunch of people who can say it in 10 to 15 minutes. I guarantee you, I don't know what my record is and this seems a little ridiculous, but I've put on easily a dozen, easily two dozen people in a day. And I don't do it in a day because it becomes numbing after a while. So I intersperse it, but I can put on a dozen to two dozen people and I believe that when they talk about stories, they are allowing the jurors. What we have in our state is base this on the evidence and the reasonable conclusions.

You know what reasonable conclusions mean? It means common sense. It means you're going to hear a story about this human being because I'm not going to pander to you. I'm not going to ask somebody, "Do you miss your mom? Are you sad about your dad dying?" I'm not going to ... I wouldn't do that to you, but what I am going to do is I'm going to do what law expects us to do. I'm going to give you the evidence so you can make your determination so you can say, "This is what common sense tells me about the nature of this human being and the value of all of these elements of their lives." So I want to get as many folks as I possibly can without duplicating. If it's duplicating, then take it out.

I love this. I've never heard that. So you have actually in wrongful death cases called fact witnesses about the decedent up to 12 people?

More than 12 people.

Wow. And you just put them on for a short period of time, one little story and then move to the next one.

Yes.

I love that. I have never heard of that before.

I mean, because every time that we ask a conclusion of somebody such as, was this person strong? As opposed to, tell me one of the lessons that your dad taught you or tell me one of your favorite recollections about what he did as you were going through school. I remember one of the things that my dad did was I needed to have a science project and I remember him picking up this horribly heavy structure and putting it down. And I thought, "Oh my gosh, I don't think any other one of my friend's dad could have possibly done that. " I didn't use the word strong at all. Well, maybe I did. If so, that was the old timed on my part, but they know this is a strong, vigorous guy. Tell me about one of the biggest lessons that was learned. One of the lessons, and I can remember this so clearly, one of the lesson and my mom let me derive the lesson.

One of the lessons that she said was, I remember this like it was yesterday, we're on a road and there is somebody that is walking with a can that's obviously an empty can of gas and she pulls over. This is a man and it's me and my mother. And she pulled over anyway and said, "You need some gas? Yes, I do. Come right on up." Well, the fact is she was the one that instilled in me the importance of helping other people.

I absolutely love that idea. I'm going to do it the next time. More witnesses. I'm serious. That's great. Okay. I got to go a little bit quicker here. I want about closing. Are you hellfire and brimstone? Are you low keyed? How do you handle it?

In the first part what I'm saying, I try not to be fire and brimstone, but what I do is I once again get those visuals. Christie Childers, have you ever heard of her?

I don't think so.

Okay. She's from Macon, Georgia and she has this house. I like the pie chart too, but there's a house. There's a frame of a house and I put nine or 12 or what rooms. One of the rooms is comfort. And when I talk about comfort, I define. You see, one of the challenges that I think we all have is when a law says comfort services consortium, companionship, instruction, guidance, counsel, training and support, they all mesh together and they all sound exactly the same. And so I define what each one of those are. Folks, you're going to be asked to value about the comfort. What we mean by that is what this woman did for her child to ease stress. We're going to ask you about the value of services, which are the actions to help an individual. We're going to be talking about instruction, which means aiding and doing something.

We're going to be talking about counsel, which is recommendation. And so folks, the public policy of our state is not to repeat the exact same thing. It's to talk about nine very important values, each separate, each independent. And so I put that up and I talk about that. We're talking about number of witnesses. Here's what the number of witnesses are. None for the defense. I have 30 down here.

When you're going through those different elements of damage, in Texas, we have separate blanks for those. Do you have those in Kansas?

No. All

Right. Do you suggest, not all judges do that, but most of them do in Texas. Do you suggest or can you suggest amounts in closing or do you have to leave that completely to the discretion of the jury?

First of all, I never did answer your first question some time ago about the jury selection and opening. I talk about tens of millions of dollars.

Okay. That's exactly what I do. So you can talk about that.

Yes.

You can't just say, "Would you award $2 million?" But you can say, "Could you consider?"

Yes, exactly right. By the way, folks, I'm in the horns of a dilemma here in jury selection. On the one hand, I wouldn't even dare ask you, will you commit? Will you vote for some very specific dollar amount? You haven't heard a bit of evidence. That'd be completely unfair to you. But on the other hand, it would be unfair to you to not have any idea whatsoever about the general area that we're talking about and particularly given the fact of what we talked about in terms of this burden of proof. I hate that word, but that's what's in the instruction about this burden of proof that talks about more likely than not. And so when we talk about that, what I've got to find out is if the evidence shows you more likely than not that it's a certain figure, some people would say, "Well, that's fine.

I'm open to whatever." But other people would say, "I got a problem with that. That's tens of millions of dollars. That sounds ridiculous. I need to hear from you. " See, on the burden of proof, more likely than not a lot of people, let's say that instead of what we're talking about here, let's say it's a, I don't know, injury to the ankle and it's $50,000 and you look at all the evidence and you just say more likely than not. Yeah, that's fine. I don't have a problem with more likely than not $50,000. But what if I were to say it's the same standard, more likely than not if it's 50 million.

I do that too, tie it in the higher numbers to the burden of proof. Some people say, "If you're going to ask for that much money, you got to be convincing." Do you ever do ranges, Dirk, in your ask?

This is an area where there is some dispute, some debate. Some people say you say ranges that makes you sound weak. I don't think that.

I don't either.

Some people say that. And so for example, if you had three daughters, which I do in a case that's going to be coming up, three daughters and a wife and the wife is of 40 years and the daughters are various ages. I would say that anywhere between three and five million for each of the daughters and anywhere from 30 to 50 million for the wife would be extremely fair and just means by the way, complete, full, not lacking because it's again, the only way that you can ever hold anybody fully accounted.

I'm still taking notes. All right. First of all, before I get to the last two questions, you got to tell us a little bit about your mama because you told me about her yesterday.

Absolutely.

First of all, let me ask you an open-ended question. Did you admire your mother?

Oh, Charla, she was my hero. I mean, here I am a white male born into an upper middle class family with advanced education who happened to encourage somebody to reap. If I can't succeed with that background, something seriously wrong with me. But here's a woman who has no business going into a professional school, has no business doing a first ascent of a mountain, has no business doing all of these things and she is there succeeding wildly above and beyond everybody with all of these other advantages. Yes, I admired her.

She climbed mountains, she got her masters, she got her PhD, and she got her Juris Doctor. A little bit of an overachiever it sounds like. I love that you said that she taught you about empathy, filling up the gas tank. When children see their parents do that, I think that's what sticks with them.

Yeah. And that's one of the things that I try to do on these stories, stories, stories. You don't have to say, "Did your mother teach empathy?" You say, "Here is my mother doing this, and that was one of the most important lessons I've ever learned in my life, to care about other people. " I guess we'll close on this because I'm sure that my motor mouth has gone way down.

Okay. I'm going to ask my two last questions, then you can close it. How about that?

Yeah. Is

That a deal?

Yes.

Okay. What on piece of advice would you give to young lawyers?

Interestingly, the on piece of advice that I would give to young lawyers also happens to come from my mother. Comes in the form of two words and I guarantee you, you're going to feel the same jolt of electricity that you did yesterday, Charla. This is a human being that has accomplished everything in the world. It's not that she's accomplished everything in the world. It's she accomplished everything in the world and is always joyous and upbeat and she's always looking forward to doing things and there's no dread, there's no type of state, "Oh my God, I've done this. I'm so bored with this. This is all whatever." And so I'm sitting at lunch with my mom and she says, "Dirk, you wanted two words, and this will be the two words." And by the way, I also say this to the jury in different way, but the two words of advice to any young lawyer, but the advice that she gave to me, Dirk, two words.

And I thought, "Well, wait a minute. The Graduate was one word "plastic," so it's got to be something other than that. So what is it, mom?" And she said, "Remain curious." And if you remain curious and you always want to find out more about the person that you're talking to and you want to know their story and you want to find out what makes them tick, remain curious. If you want to explore ... I mean, my heavens, you and I go from engineering to medicine to mineralogy to driving an 80,000 pound truck would do all of that and it would get very old if you thought, "I've done these before." But there's always something a little bit different, isn't there? There's always just a little bit of difference from what you did in a case that was on the surface.

Absolutely is. And when you told me that yesterday, it stuck with me. I was thinking about it last night and I was trying to think, am I curious? I think I am.

Oh, yeah.

I can guarantarn to you I'm going to work at being more curious now. I'm going to remain and sustain curiosity. Dirk, if you could have your legal legacy to be something, what would you want it to be?

I suppose as much as anything else, I would say that hopefully I am enthusiastic, am able to transfer that to other people so that the people on the jury and my clients and other people that I talk to have these two things. They have empathy, they have insight and they have understanding. If there is somehow, some way that I can do those three things, I feel that I've accomplished all that I really wanted to accomplish.

Wow. This hour has flown by, look at my notes. They're all over. I have thoroughly enjoyed this. Thank you so much for appearing on our podcast.

Thank you for having me, Shala.

Really enjoyed it. To our listeners, if you have any questions, you can contact us at info@morelikelythanot.com. Thanks for joining us today. We really appreciate it. I think you can tell, and we at Aldous Law here, we actually kind of like each other and we absolutely love, love what we do. And we work a lot of our cases up from the get- go, but we're brought in on cases a lot. We try cases all across the nation. If you have a case that you're interested in talking to us about, we'd love to hear from you. We've tried everything from trucking, workplace injuries, explosions and burn cases, dram shops, rideshare, sexual assaults, birth injury, your personal injury cases. If you need a partner to help you with your case, please call us. We can be contacted at Aldouslaw.com. We'd love to hear from you.

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