You can get great results at trial even if you don’t have a perfect case. As long as you’re connecting with the client, the purpose, and the cause, the jury will see that.

In this episode of Colorado Trial Lawyer Connection, Keith Fuicelli is joined by Boulder, Colorado personal injury lawyer, John Duguay. Keith and John talk about a tough car accident case John recently tried where his client had a prior injury, among other difficult circumstances that complicated his case. 

Tune in to hear John’s strategy going into the case, including what worked for him and what didn’t. Keith and John also discuss the importance of understanding the impact of your client’s injury beyond the physical aspect, using defense experts to shore up your case, the value of another set of eyes, voir dire tips, and John’s successful verdict despite the odds.        

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☑️ John Duguay | LinkedIn

☑️ Sloat, Nicholson & Hoover, P.C.

☑️ Sloat, Nicholson & Hoover, P.C. on LinkedIn 

☑️ Keith Fuicelli | LinkedIn

☑️ Fuicelli & Lee Injury Lawyers Website

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

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Episode Snapshot

• John Duguay’s origin story and how he became a trial lawyer
• Background on John’s difficult automobile collision case 
• Understanding what was taken from your client, beyond the physical injuries
• The “burning house in Aspen” analogy of impairment
• John’s voir dire strategy 
• Closing arguments won’t always be pretty

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. Well, welcome back everyone. I am Keith Fuicelli and we are thrilled to host another episode of the Colorado Trial Lawyer Connection. And our whole goal of this podcast is to help Colorado trial lawyers learn from people that are in the trenches, in the arena, fighting the battles, what worked, what didn't work, and hopefully get a little bit of inspiration along the way. And with that, I am thrilled to have John Duguay here to talk about an amazing, a truly amazing result on a difficult case in a difficult venue with lots of difficult circumstances. So with that, welcome to the show, John.

Thanks, Keith. Thanks so much for having me.

And I always like, before we jump in and talk about the case, tell us a little bit about yourself. Have you always known you wanted to be a trial lawyer?

No. My origin story, I think I always had, there was a long history of maybe I want to be a lawyer. And that dates back to my mom used to tell me a story of when I was born that her mom said, John James Dugay, that sounds like an attorney's name. And so it does, that seed was planted early on that maybe this is something that I might be interested in. Never really came to it until I was in undergrad studies. I took a business law class and I just really connected with the professor, which got me interested in, again, maybe I try this law thing. And then I went to an internship at the Public defender's office.

Oh,

Great. That spurred trial advocacy as an interest. And I think I always had this idea of sticking up for the little guy and sticking it to the man and being for the underdog. And so at first that was maybe criminal laws, the avenue for me. And I did some work there, but I had some moral questions about some of the people I was representing doing criminal law. And I had the opportunity to, when I moved to Colorado, start at Baku and Schenker and it was kind of a, here's a job that's available to me type of thing. But starting there, I grew overall passion for it and I learned a lot from Kyle and Darren and their passion for the practice really inspired me and kind of led me down a long road to where I am today. But that was back in 2016 when I first started. Started there.

That's great. And I don't know if you know this, but I also worked for Darren and Kyle A. Long time ago when they were smaller, but I agree it was wonderful to have them as mentors, honestly, because they are both very passionate about trying cases the right way. And one of the takeaways to their credit that I carry with me to this day was never skimp on expenses. When you're taking a case to trial, it's in for a penny, in for a pound. And that has always stuck with me and been fortunate enough to be able to have the resources to try cases the right way now. So it's amazing how having people with sort of the right attitude on how to go forward with cases can influence your future. And so here you are now. Tell us a little bit about the case that we're here to chat about.

Yeah, so the case, this is a case for my client, Paul dah, and it's an interesting case, a tough case that a lot of the issues that we see pop up in cases over and over again were issues in this case. And I came into the case to help try the case about a month before trial. And so immediately wanted to get up to speed to get to know Paul, get to know what the issues were in the case. And it was a collision that happened in Thornton. The at-fault driver was a young girl, 17-year-old, had a car full of kids that she probably should not have had in her car given the restrictions on her license at the time, but she turned left in front of Paul. Paul's going straight, she turns left going into a gas station and it was a big forceful crash.

So thankfully that was one of the things that we didn't have to deal with in this case. It wasn't a situation of low visible property damage. There was great crash pictures in terms of you could look at the pictures and understand very easily that someone could be hurt in this crash. And Paul did not go. He was only a few blocks from home. And so he decided to just go home that night and try to go to sleep on his couch. But the next morning woke up in a lot of pain and went to the emergency room and he had injuries, pain in his low back, his neck, his shoulder, his knee had some concussive mild TBI symptoms. And thankfully most of his injuries resolved with conservative care with some chiropractic and physical therapy. But the remaining injury was his low back injury. And ultimately, after going through multiple rounds of Cairo pt, he eventually gets referred to Josh Johnson, who I know many people are familiar with who may be listening to this, who's a great chiropractor but also has expertise in injury biomechanics and accident reconstruction.

And Dr. Johnston recognized early on, I'll do what I can to help you, but I think this may be surgical, there may not be anything we can do for you. And then down the road gets sent to Dr. Jack Rez for injections. And again, Dr. Rez echoes the same sentiment of Dr. Johnson, looking at the imaging, hearing what's going on with Paul, try these injections for you, but I think you may end up needing a surgery. And he ultimately gets seen by Dr. Jacob Rumley and Dr. Rumley does some more evaluations and some more testing and says, ultimately the only thing I can do for you say lumbar fusion. And

Let me jump in. How old was your client when the crash occurred?

38.

Wow. Okay. And you mentioned a lot of preexisting issues. Did your client have prior low back issues?

Yes. What we learned is that he had in high school a football injury where he had a lumbar, an L four fracture as a result of that. Wow. And he didn't actually know until we're preparing for trial really as he's reviewing the expert reports in this case and talking through it with him. Oh, that injury I had in high school led to a lumbar fracture. He just knew I hurt my back and I was in a back brace for a day or a few days, but eventually the symptoms subsided. And then

So did they catch the fracture because of subsequent MRIs related to your case? They saw evidence of a healed fracture and you put two and two together that occurred in the football injury.

That's exactly right. Oh, so right. All we had in the case was this is an old fracture. We see that it's an old fracture, but he didn't know prior to having this imaging done in this case. Now then fast forwarding from the football injury in the five years before our crash, he had gone to his doctors at Kaiser twice and reported flare-ups of his low back pain. And what he said was one time back in 2016, I was helping a friend move and this flared up. He went to his doctor, said, this happens every once in a while where it flares up for a couple days. I'm having a flare up right now. And the doctors gave him some pain meds and said, come back and see us again if it's a problem. Never came back after that. And then he had another flare up a couple years later where he ended up asking his doctor for a note to cancel a flight because he was in back pain and didn't want to get on a plane the next day.

How long? That seems kind of like a big deal. How long before the crash was that note?

That was just about two years before the crash.

Wow.

And preparing for trial come to find out from the clients that this is less of an issue of his back bothering him and more of them having some other plan that came up. And of course looking for a way to get out of the, but of course. Right. And so we had to be careful with how to present that. We just sort of owned what's in the records. Look, I was having a flare up in my back pain, but it was temporary. And then there's no sign of any other treatment. There's about almost an entire two year clean period of no mention of any back pain. But obviously the defense trying to make as big deal as possible out of this is a preexisting injury. Reviewing defense had hired Dr as their primary expert who I have some familiarity with. I find him to be pretty reasonable.

Same, same.

But taking a look with, one of the things that Darren taught me early on was you got to really assess what is the expert's opinion. And in this case, Dr. Saban's opinion was not that Paul didn't need surgery, it was, I don't see the evidence in the record of what I've reviewed to support Dr. Rumble's recommendation for surgery. And so that immediately got me thinking, okay, what hasn't he reviewed and what are the things I can point to of maybe you just don't have complete information?

Did Saban examine your client?

So that's one key thing. Never laid hands on the client. Wow. Never examined him. The other key thing, he never looked at the actual imaging. He only looked at the imaging reports. And so very early on in the by cross of Dr. Saban, I was able to say, look, if you're Saban now only really does these forensic evaluations. I don't think he's really seeing patients anymore, but talking with him,

I heard that recently that he's retired or he had some medical condition that I think maybe prevents him from doing surgery. I'm not sure if that's accurate, but I

Think that's right. It doesn't have some lack of stability in his hands or something that he's not doing surgeries anymore, but talk with them. Look, if you are going to recommend one of your patients for surgery, what are the things you make sure you do every time? Well, we're going to meet with them. I'm going to assess how they present, how they describe their symptoms, what they look like and feel like. Of course, I'm going to look at the imaging and make my own assessment of the imaging. And so I was really able to dissect his starting with what is his opinion? His opinion is I don't have enough information to support the recommendation for surgery. Well, you didn't see the patient and you didn't look at the imaging. And those are two things you would do in every single case where you're going to refer your own patient for surgery. And so could that be the missing information you don't have here? That's the missing link between Dr. Rumble's recommendation for surgery and you saying you don't see it. And he had, well,

One of the things I love about that, what I like to do in that situation as well is point out that these doctors are relying upon the defense to get them the information that they need to make an informed opinion. So when you have this gift that you're given, it sounds like you were in your case, you turn it on the defense team in terms of them dropping the ball, getting the expert what they need. That's beautiful.

Yeah. And the other thing with Dr. Saban is that he said in his report he saw no evidence of radiculopathy or any radicular symptoms. And then I of course found 20 different references in chiropractic records that he just overlooked of numbness and tingling in the hands. And so one by one is that evidence of radiculopathy? Is that evidence of, and he, let

Me ask you about that. Did he, sorry to interrupt you, but did he concede that because I've gotten, sometimes I've gone down this road and I've had experts try to wiggle out of, well, yeah, there's numbness and tingling, but that's not true. Radiculopathy, it needs to be radiating all the way down from the neck, down the arm, and if it's not radiating down the arm, et cetera, it's not radiculopathy. So I'm curious whether or not Dr. Saban, did he just sort of concede that that was radiculopathy or did you approach it more, this record says numbness and tingling. This record says numbness and tingling and leave it at that.

So you're right. And he did try to toe that line a little bit to say that's not necessarily radiculopathy, but the way that I was able to lock him into, there's no evidence of numbness and tingling and numbness and tingling can be evidence of radiculopathy. Not that it necessarily was, but I set that up to say, these are one of the things you could look for if you're looking for radicular symptoms and you say there's nothing to support, defining any radicular symptoms and then setting it up that way, going through, okay, here's all these instances of numbness and tingling. Not saying for sure that is radiculopathy, but saying it supports that there could have been radiculopathy going on at that time, and he had to concede that. So I had to put it in a way where he wasn't able to wiggle out of it based on that framing.

What I love about what you just said is you talk about the framing of it, and this is something you thought about in advance. So this was sort of your plan on how to deal with him at trial.

So I have to give all the credit to Josh Johnston on this, and this is one of my things that I took from this case. I mean, Josh was an all-star, both in how he presented trial and in helping me prepare for trial because he really educated me on the language of, okay, you have to be careful with how you talk about this because he let me know. Saban will try to wiggle out of that, just like you just said. And so he really helped me prepare for how to ask the questions in a way that Saban couldn't wiggle out of and just helping me understand the science in a way that I could explain it. The other thing that Josh was great, Josh looked at the imaging and Josh talked to the radiologist and all of Saban. And the defense position was what we see on the MRI is just this old fracture and just degeneration of the spine and nothing acute, no acute injury caught that is shown on the imaging.

Now the doctor, they're relying on to say that hadn't actually looked at the imaging. And so they set that up for me where it was pretty easy to then put together with Josh that looking closer at the imaging, there was evidence of a disc extrusion is what he called it. Wow. And Josh really, again helped me with looking at the imaging of an Oreo where if the discs sort of pushing down and it's causing a herniation, you expect this sort of even extruding or protruding surfaces on the discs there. But there was a more obvious extrusion at L four that Josh was able to colorize the images and get up during his testimony and point that out. Was it

One side, was that extrusion more prominent to one side?

It was on the left side, I believe. Yeah. Okay.

There is, just so our listeners know, because I've had this come up before. There is peer-reviewed article that talks about how degenerative bulges and degenerative disc issues tend to be. They're bilateral, they're not unilateral to one side. So when you have a situation with an extrusion or a protrusion to one side, that can be evidence that it's traumatic in nature versus degenerative. And that brings me to another question I had with your client's prior back injuries. Am I correct in assuming there were no prior MRIs of his lumbar spine from way back when? Correct.

Okay. There may have been, but we didn't have it. It

Was, yeah.

And so hard to say whether we benefited from there not being prior imaging or not. But so a couple of the things that I, jumping in on this case in the trial prep phases that I learned or that sort of solidified these things, these ideas for me that things I've been told and hear about, but see it all put into practice and one was you have to take a step back and think, why are we still right? Why

Keith Menick, the why, the power of the, why are we right and why are they wrong?

And I am a big fanboy and a lot of the phrases that he uses and taken from him. I just went to his art Outsmarting conference in California, which is great, but I borrowed a lot. We all sort of stand on the shoulders of those who have come before us and we'll get to it more. But I have you to thank and other contributors to the listserv to thank for a lot of ideas that I got in this trial. And I think it's really important what you're doing here with this podcast, sort of sharing these ideas and hopefully inspiring people, getting people to think, well, he did it. Maybe I can do it too. I can tell you there's certainly nothing special about me that I was able to do this. And I think that's within anyone's capabilities and getting back to of why is this important?

Why am I right Anyways. Well, and another mitt mechanism here was the sensible sequence of events. And the client Paul went from, okay, he had two mentions of back pain within 20 year period to then 180 visits mentioning his low back pain following this crash. And so again, another mitt mechanism, is it all just the coincidence that he now has went from having back pain once in a while would flare up when he would lift heavy stuff, but go away in a couple days to now back pain that has never gone away, that has always at this five six out of pain and never getting better. Is that a coincidence or is that because of this big car crash that he was in and thinking about that as a framing? That's why we're still right, we're still right, because forget what the M MRI showed. He didn't have this kind of pain, he didn't have this kind of problem prior to the crash, and he had consistent reports of this pain and these problems after the crash.

So you've got a surgical recommendation and the client did not do the surgery. Is that right?

Yes.

And so how did you go about, for our listeners, how did you price out that future surgery and why was it that your client did not get the surgery?

So we had acum in

The case

And they priced out the surgery for us. And they're great, highly recommend them. And the reason the client didn't get the surgery is that it's a complicated, it was a multi-level, a CDF fusion that was going to involve two separate operations going in back and front. There's a lot of potential complications. If you talk to the doctors, talk to the clients who've had them, a lot of people either regret getting it or then need a subsequent additional fusion at an adjacent level. And so I was able to get testimony from Saban and from Dr. Rumley that the 3% chance per year following a fusion that you're going to need an additional fusion, also use Saban to talk about the potential complications from surgery. One of the things was sexual dysfunction being a potential consequence. And Paul and his wife were concerned about that. They have a big family, he have four kids, but they had talked about maybe we want to have another kid someday, but those risks of the surgery.

But at the end of the day, Paul said, and still says is, look, I think I'm probably going to need this fusion, but I'm going to put it off as long as I can because if it's just going to put a solid piece of hardware in my back that's going to make me less mobile, it's going to make, it's not going to guarantee you to fix my pain and it's going to make it more likely that I'm going to need another surgery. I'm just going to deal with this until the pain is not bearable and then I will go forward and get the fusion.

And so our listeners know what was the cost approximately for that lumbar fusion, just roughly, was it two to 300

I think three 50

Range? Yeah, that's three 50. Okay. One of the things I heard you say that I just think is brilliant is using the defense expert to constructively cross them to get out stuff that's great for your case. So I heard you talking about how you were using Saban to talk about the risks of surgery. Tell the listeners a little bit about the idea of using the defense experts to shore up your case.

I mean, as much as you can do that, right? It's great. And part of one of the issues in the cases, if you need the surgery, why haven't you gotten it yet? Is he ever going to get the surgery? And why should we award the cost of a future surgery that you may never get? And so as much as I could, I wanted to build my client's credibility. And so going back to trial prep, one of the things, and this is a trial by human, everyone recommends it, but go spend time with your clients, go spend time. And I only had about a month, but I think we spent close to three full days in the client's home just hanging out, talking about trial issues, learning about him, his life, what's important to him, and asking these questions of why don't you want to get the surgery? And really trying to understand his perspective on this is what the risks are. They're telling me I might need another one, it might not work. They're telling me it could come with all of these other potential side effects. It just didn't seem like a good idea for me to just jump into getting this fusion.

So I'm hearing you, we all hear, spend time with your clients, break bread with them, have time. Are you telling these listeners that bore real fruit for you in this case?

100% Again, right? It's one of those things, you hear it all the time, people say it, people say you need to do it, but man, you really need to do it. Seriously. What I took from the trial and what I'm thinking about moving forward is some of that stuff that we all do or we know is important to do as you're leading up to trial. How do we incorporate that earlier on in the cases? And so frankly, I don't spend time with every single client in a pre-suit context, certainly not in their homes. I try to spend a lot of time talking to them and getting to know them. But I think there's probably a lot of value to before you send out a demand letter, go spend some time in the client's home and really learn what their experiences like. You'll get some things that you may not have understood or you may not have understood in a way that you can explain it.

And so for me, so examples of that here are what we were just talking about, learning about why he was worried about the surgery, then extrapolating that out to, okay, how can I use Dr. Saban to build this credibility to say everything that he's saying about being worried about these risks of surgery, that's all valid. These are real risks. And a lot of people, no, I support people's decision not to rush into a multi-level spinal fusion because it's a risky surgery. And so getting the defense expert support that, that was huge obviously. But other things I learned spending time with a client are, he talked about working on cars was a real passion for him. And it's one thing to have a client say that to you on the phone and say, okay, you like to work on cars. I pulled up to his house and there's like five cars in the driveway.

And what was your venue? I know the answer to this. What's

The venue? We're in Adams County with Judge Seedorf, and I don't know if I mentioned it yet, but Kevin Ripplinger, defense counsel for State Farm in this case. So then I saw the garage where he's working on this old civic beater that's been in there for years, that his wife is pissed off at him because it's taken up the spot in the garage where they could be parked in their car. And there's something about sitting there with the client and hearing his wife's frustration with him that he still likes to do this even though it's painful for him and that that's instead of watching a soap opera, real Housewives with her at night, he's out there tinkering on the car. And those were stories that we were then able to have both of them talk about in trial. But that I, for me, what was really important about it is that it just sunk in for me.

And I think part of what makes it real makes it real part of what, it's one thing to have a client who likes to dance and they can't dance anymore and because of their injuries, it's one thing to say that. It's another thing to really understand what dance is for that client, what kind of release they get, what kind of personal emotional experience that is on the positive side before the injuries. Now having that taken from them, and we're guiding the jury, I think this is another tism, is to appraise the value of what was taken from our clients. How can we do that unless we have a real understanding of what was taken? That was something that really hit home for me. There's another couple anecdotes of while we're sitting there, the client's gun, 18-year-old comes home from school and he is about to go to wrestling practice, and this was the first time that this came up was, I can't go to my son's.

Really? I go, but I really can't enjoy my son's wrestling matches anymore because they're these full day thing and sitting on these hard benches. And it used to be something that I like to do, go socialize with the other parents, hang out all day and watch my kid wrestle and feel pride and watching what he's doing. But now the whole experience is just a miserable, painful thing where I'm pain can't sit there, I got to get up and stand up and walk around and I don't want to talk to anybody. And that was another thing that again, I didn't have any idea about until his son we're sitting there in the kitchen and the son walks in with the wrestling bag of, Hey, I'm going off to practice. And so it's another anecdote of spending time with the client in the client's home. You learn these kinds of things that for me that was valuable that hey, he doesn't even want to go sit at his son's wrestling match. That's not even fun for him anymore.

I'll tell you, one of the things that you're inspiring me with right now is that you did all of this within a month because I think we've all been there. I know our listeners have, we've all got cases we're working on, and it seems like it's like the six week timeframe is usually when it's like, oh, this case is really going to trial. So I kind of like that. You don't have to do it perfect, you just have to do it. So it can be two weeks, three weeks before trial and you're getting all this super useful information that you're able to implement. It's very inspiring, frankly.

Well, thank you. And frankly, part of that was what was nice for me. And I think that there's value to having someone come in with a fresh set of eyes a month, six weeks before trial to just figure out how do we really let the narrative take shape and give a real form and structure to our presentation of the case to me, because I've been there in a case that's been my case from the beginning, and I'm six weeks before trial and I'm still kicking myself of is there another deposition I could have taken or could I have refined an expert opinion or gotten another rebuttal opinion and thinking about all these things, all these could have, should have, would've, and that can cloud your judgment of, okay, how do we take what we have here and shine it up the best we can and narrow the issues, put it into a cohesive framework that the jury can get behind and understand.

And so for me, there was a lot of freedom to that to coming to this case late of, look, I'm stuck with what we have. I got to try to put it in the best package we can and maybe scrap some things, maybe drop some claims. There's a whole other aside where the client actually had a pituitary tumor that was discovered in imaging they did because of crash related injuries, but the tumor, there was maybe some thought that the crash could have accelerated the growth of the tumor impacted the tumor. And so we had retained Dr. Stein to talk about all the injuries in the case, including take a look at the tumor, and he basically said, I can't get there. It's possible, but I can't get there that anything was caused or exacerbated by the crash. And Dr. Stein also echoed Dr. Saban's opinion and we had retained him as a rebuttal expert in the case prior to my involvement. But he basically said the same thing as Dr. Saban of, I don't see enough evidence in the record to support Dr. Rumble's recommendation for surgery.

So he put that in a rebuttal report, an opinion, or you're like, we're not going to, yeah.

One of the things I came in the case and said, okay, we're not going to call Dr. Stein. We're going to drop the pituitary. We're not even going to mention it because it's too convoluted. It's going to come off as reaching. There might be something there, but we don't have the opinions to support it. And so that was part of what recommended and what we did was narrow some of the issues. We didn't discuss the pituitary tumor where we decided not to call Dr. Stein, but Dr. Stein, you wanted to help us the best he could. We retained him. And so we did spend a lot of time prepping with him. And one of the things that he educated me about was that, again, look, I don't have the evidence to support the need for surgery because he talked about the flexion extension X-rays that were done in the case where they are taking motion X-rays.

They did not show instability in the spine. And Dr. Stein said, I'm not going to do surgery unless there's instability. So I don't agree with Dr. Rum Lee's decision to do surgery. Dr. Rumley said there's what we call micro instability here. And micro instability is kind of a made up term for instability. You can't see it's instability. Basically, Dr. Rumley is saying, based on what the client's telling me, based on what I'm observing, there must be some instability here, even though it's not showing up on the imaging. And Dr. Rumley and his practice, they have done surgery for people who are in this similar circumstance where the imaging is not showing the micro instability, but they have evidence that it's there and they've had successful outcomes. But one of the things Dr. Stein told me in prep was that, look, I don't see the evidence here and I don't usually support these of discectomies, but this is a situation where I might actually, that's something you could do if you're going to, there's no other options.

He's tried the injections, we all sort of agree his client's stuck with either deal with the pain or surgery, but there aren't really any other options. So Saban said, rather than do a multi-level fusion, you could do a discectomy to try to pinpoint which level needs surgery, if so, or narrow down where you're doing the surgery. So he gave me this idea of maybe that's something else that could have been done short of surgery. And prior to trial, Kevin Ripplinger notified us that they were going to call Dr. Stein. Again, it was clear to me they were just wanted to put him up there to say, you agree that there's not enough information here to support the recommendation for surgery, which this also backfired on. I'll get back into that later, but

I'm fascinated by this them cross designating Stein and then calling, so did they call Stein? Yeah.

Yeah. Lemme put that I'm pause for one second. But basically only point being Ston gave me this information, okay, we could do a discectomy here, narrow down where we need to do the surgery, try to further identify the problem level. And with that information and prep, I was actually didn't know this was going to happen, but I got Saban to go there of, oh, we could try discectomy here. And he sort of explained the whole reasoning behind that. And I am preparing for the defense, the call sound team kind of hoped maybe I could get him to talk about that, but didn't end up being able to do that because that wasn't disclosed in his opinions and I didn't call him. But thankfully I was able to get Saban to go there on his own about doing a further evaluation. This is another option. And one of the things that, okay, well lemme put a pause on that.

So yeah, Ripplinger decides to call Sonte, and I guess part of caution here is I've had cases where I actually, Dr. Saban thought he was maybe our strongest witness in a case where he was retained by the defense, but he supported most of the injuries and I got that case settled. But what I told the defense attorney was, my first witness is going to be your doctor that you hired. And I think Ripplinger kind of got excited that he was going to use the doctor that we hired to take down our case. And so he subpoenaed sound scene to be there. Stein did not talk with him ahead of time, was not happy to be subpoenaed. It was subpoenaed for the morning. And then things run late as things can happen during trial and we're breaking for lunch and Stein still hasn't been called. And he starts cursing out, rippling her in the hallway like, why the F did you subpoena me to be here at nine in the morning?

What's going on here? And it just so happened there was a juror in the hallway who heard so no way. Yeah, rippling her this young girl who I kind of pegged as kind of a go along person where she wasn't going to be the leader. So the judge brought her in and we questioned her, is this going to impact how you feel about this testimony or the case, the lawyers? And she said No, and she wasn't going to talk to any of the other jurors about it, so she ended up staying on the jury. But that was just a little bit of midday excitement there.

And it was clear when he called Stein that Stein was not happy to be there, a little ory and short with his answers. And I don't think it went well for rippling or I mean he maybe sort of got the one thing he wanted, which is you agree that surgery's not supported here, this recommendation for surgery. But at the end of the day, I think it did not go pleasantly for him. It was pulling teeth just to get that testimony from him and probably not worth it for what he got out of it. And something that the jurors told us afterwards, but this didn't even cross my mind, was that they saw Dr. Stein and Dr. Saban as these sort of old curmudgeons who are no longer really practicing who are maybe not familiar with these newfangled surgery techniques. And Dr. Rumley is a young guy. He is had military training and had only been practiced for few years and the jury just kind of said, he probably knows new stuff and new things that these old guys

Micro instability,

Right? Micro instability, exactly. That these old curmudgeons just aren't familiar with the new techniques that they're teaching in school these days. And the jury came up with that on their own. I was like, wow, that's great. Thank you for that.

And we haven't, I mean we probably should have said this earlier, but what was the result? What was the breakdown of your verdict in this case?

Yes. So going back for a second, this was a case where at mediation, before I was involved, state Farm didn't made a final offer $50,000. They staff offered $50,000.

What was the policy

Two 50 policy. We set them up demand of the limits in the weeks before trial. So we had claims against the driver, the 17-year-old, but also the parents under family car doctrine. We also had a negligent entrustment claim that was not strong. So that was another recommendation that I made that we withdraw that on the eve of trial defense admitted to family car doctrine and so they took liability off the table on the eve of trial. And I didn't make a huge deal of that, but that's something that I hear people talk about in terms of, okay, why are they just admitting it now? So the result, 50,000 compli, the result, the final, the verdict pass meds in this case were about I think 98,000 and the verdict

They offered 50 on 98 in meds. Thank you. State Farm,

Right. Another reason I was thankful in this case is right, they didn't give us a choice. We had to go to trial. And this is the kind of case where if they offered, I started looking at the case and there was some warts when I first got involved. There's this prior injury, there's some other issues with the client's treatment, a lot of chiropractic care and a lot of the things that the defense will tell us to try to get us to think badly about our cases had me wondering, maybe this isn't a case we should be going to trial on. Let's see if we can get any more money and get out of it. But thankfully they didn't put any more money on it and they forced us to go to trial on it. And at the end of the day, the jury awarded just under $5 million,

Oh my goodness.

Excuse me, just under 3.5 million with interest and costs added up to about 5 million.

Oh my goodness. It's just a phenomenal result. And I have found, and I don't know if this is true with you as well, but it's the best when they make the decision to go to trial easy. It's the worst when it's like, oh man, this is scary. But in this case, it's like you don't have a choice. You go to trial and what a phenomenal, phenomenal result. Do you know, were you able to get a significant impairment award included in that and how did you go about what was it and what kind of tricks can the listeners take from you as to how to get the money

In that bucket? Yeah, so the impairment award was $2.5 million. Oh my goodness. I have due to thank a lot for that because I mean, I'll tell you. So I saw in my preparing my closing argument in the months before trial, I saw that you had posted about a verdict you had against Kevin Ripplinger and you posted both your closing slides and the closing argument in the trial lawyer's listserv. And I'm very thankful that you posted those. I saved them both right away. And I looked at the slides and I said, oh, I'm going to use something similar to these slides in my next closing. But it didn't hit home for me that that case was against Ripplinger until the night before my closing when I pulled it back up and I'm looking at your slides and I then go read your closing argument. And notice I had never paid attention to the defense counsel prior to that, looking at your closing and slides.

And I see, and I see in his closing that you included that he was using a lot of the same language that he ended up using in our trial. I recognize some phrases that he used in the closing argument in your case from the opening in our case where he said things like, I want you to use logic and reasoning to give the plaintiff less than what he wants. And so I'm reading this as I'm preparing my closing, and when I read that, I knew I had him, it was just this feeling of like, oh, this is it. We got him. And I ran downstairs and I told my wife, I was so excited. I was jumping up and down. I'm like, this isn't going to be it. We got 'em. And because I said to her, I was like, this is going to be my, I don't know if this reference will connect with people, but I was like, this is going to be my Eminem and eat mile moment. I'm going to go tell the jury about how Kevin, Rick Bullinger's real name is Clarence, and his parents have a real nice marriage.

I get that right. I know what he has to say about me going in. I mean, it was so powerful for me to feel like I knew what he was going to say before he got up there and said it. So that's why I'm so thankful for you for posting that closing. My wife came and watched and some other people from my firm came and watch the closing. And as I'm using that phrase, the logic and reasoning and give the plaintiff less than whatever they're asking for, my wife said I saw him just taking the pen and crossing out stuff and his closing. And there was a few really fun getting in the elevator. Kevin and I, he's very easy to work with. Professional guy, I think he does a good job. I respect him, pleasant working rapport with him throughout trial. And I got in the elevator the morning of closing.

I said, dude, you're so fucked. I felt that I had this feeling like it was going to connect. And you could tell during the trial that we had a couple jurors, you never know exactly, but it seemed like we had a couple jurors on our side who were leaders to be leaders in the box there. And that panned out. And then right before I give the closing maybe 10, 15 minutes before I put my slides on his desk and I say, Hey, this should look familiar to you, tell he gave a very similar closing a few months ago and he goes, oh God, is this the house in Vail or has and Aspen and the Van Gogh painting thing? And I said, it sure is. And so we'll get more into that, but that's setting up the impairment. And he had a defeated look. He didn't know how to deal with it.

Yeah. Let's give it to the listeners, and I'd say that the real credit of all this goes back to Kevin Cheney and I'm sure that he borrowed it from someone else, which is the whole idea of this podcast is we just try to get this information. So why don't you give your interpretation of the Burning House and Aspen analogy for impairment.

So the idea is, okay, what is impairment getting back to? We're praising the value of what was taken from our client and the way of health. So how do we figure out how much your body, your life is impaired? Well, and this is an uncomfortable thing. I said this and it's true, and my mom used to always tell me, we don't talk about money and it's not a taboo to talk about, but you have to get out in front of it and you have to talk about it. And so getting the jury very, very early on and glad you're comfortable with the idea of talking about money, talking about a lot of money, all that sets this up. And then what I said is, what is the, okay, here's a framework you can use to think about this. I'm not telling you this is the numbers you have to use, but here's an idea and okay, let's think about what is an unimpaired human body worth?

Take a five-year-old, he doesn't have any injuries or conditions. What are they worth? So here's a way to think about that. The most expensive house to sell in Colorado last year, and I dunno if this is still true, is $50 million this big house in Aspen. And I put up the picture of the house. So let's imagine a scenario where there's another fire going on in Aspen somewhere that day. And there's a fire breaks out at this house in Aspen. Inside that house, the two homeowners, they have a five-year-old daughter, but they get outside the house and they are standing outside and there's one firefighter who's working who's able to come to that house, another fire going on somewhere in town. And so when the firefighter gets there, the wife says, our daughter's inside, go find her. And the husband says, well, this $96 million Van Gogh painting I just purchased is also inside.

If he could grab that for me, that paint too. So the firefighter goes in the house and it's dark, gets to the room, he sees the Van Gogh on the wall, and he's about to grab it off the wall. And then he sees the girl and the fire's blazing and it's getting hot in there. And he realizes the van gogh's big enough. And the girl, I can't carry 'em both. And there's not time to take both of them. So what does he do every single time he gets the girl out of there. And so the value of human life, it's worth more than that $92 million Van Gogh, it's worth more than that $50 million house in Aspen. Who cares if the house burns down an unimpaired human life? That's one way to look at it. It's worth at least those things. So I took those numbers and I said, okay, let's take the 50 million house.

And then said, okay, our client, Paul dah, he's not an unimpaired human. He's 38 years old and he had this prior back injury and he had some things going on on his life. So he's not a perfect specimen of health. He's not worth $50 million. He's about halfway through his life. He's got some issues. He's worth 25 million. Okay, love it. And so in terms of the rating, what percentage, I made it up. So Stein gave us a 7% impairment reading, but I couldn't get it in. And it was almost better that I didn't because of they called him and it was beyond the scope of draft and no one else had given an impairment rating. And so I just said, it's kind of like if you believe it, you can say whatever you want. And so I said, this is a low back injury. This is an injury that impacts every single moment of his day.

The spine does not get any rest. Maybe when you're laying down completely in bed, your spine gets rest. But if you're sitting standing up, your spine is active every part of your day and you've heard about the injury to Paul's spine, and I think that that injury is at least a 10% impairment to his overall quality of health and life. And I just threw the 10% number out there. I thought it was reasonable. I believed it. It seemed fair to me. And again, I presented it to the jury, and you can choose a different number. This is just a way to think about it. And so the other testament, but they gave

You that. They gave you 10% of two

25 million. Here's the other thing though. So Dr. Sunstein said, and Ripplinger did elicit this from him, that what he said was 90% of Paul's post-accident treatment was due to the crash, but 50% of his condition was due to his injuries from the crash and 50% was due to the prior condition. And so in my closing eye, I said, look, if Dr. Stein says that his ongoing condition is only 50% related to the crash, and so if you want to cut that 2.5 million impairment number in half and give us 1.25, there's support for that. That makes sense to me basically. And so I thought best case scenario, they were going to give us 1.25 for impairment. The jury came back and gave all of the 2.5 and they were out, the jury was out for maybe an hour, which that's scary. Scary. And part of me was like, it's either we're going to lose or they're going to give me what I asked for. And I thought best case scenario was we're going to get the 1.25 million plus our past medical and the future surgery, but

It'd be great results. Jury

Said to us though, we thought about it. There was the two older ladies on the jury, one of the two I thought would be the foreperson was, and they both said afterwards, he's not thinking about he's going to have grandkids one day. He's not thinking about how he's not going to be able to pick up his grandkids. Oh my goodness, I can't imagine. I got these two little bundles of joy. And they were doing golden rule without on their own basically. And they said, we just thought the 2.5 number was appropriate.

Wow, that is unbelievable. How many days did the trial take?

Five. Really? Four and a half.

Okay. And Judge Seedorf, any comments on Judge Seedorf?

I thought he was reasonable. I thought he was great. Got a little mad at me. At one point I was trying to ask Stein about testimony that Saban had given other about his opinions in the case and trying to walk. There's a sequestration order and I'm trying to ask him about testimony that was given prior. And so I got snapped at by the judge once there for that. Other than he's completely pleasant. I think the jury liked him. I think most people who have tried cases or have been in front of him will agree. I think now not only doing criminal dockets, a loss for us not having him on the civil bench anymore.

The one thing that we have not talked about is voir dire. Did you have a specific strategy that you employed in voir dire or specific issues that you wanted to address?

Yes.

And how much time did you get? 30 minutes. 20 minutes.

We got 30. And so I've done a couple of voir dires before, but not many. And what I learned trying to incorporate Mitnicks cherry pie example and make that into your own example, and Nick has a really long, I think, effective way to get jurors for cause. But what I learned after trying to do that in a couple trials is there's really no time for that. In 20 minutes, you may be able to get a juror two for cause if they present themselves quickly, and you can follow up on that, but go through this drawn out approach of one by one trying to lock a juror into a cause challenge. I didn't have any success with that, the first couple trials where I tried that. And so what I tried to do here was really just get the jury talking. I gave it real quick, this might not be the case for you explaining that concept. And I did use burden of proof and coupled that with money for pain and talking about, okay, to be frank, I didn't feel as good about the case in jury selection as I did by the time I was giving closing. And so that's nice. So

I mean, it's nice to have that happen. I've had the opposite many times I feel like.

Right? And so I think I said hundreds of thousands of dollars in jury selection. We're going to be asking for hundreds of thousands of dollars. And does anyone, how do people feel about the burden of proof in relation to an award of hundreds of thousands of dollars? And it was a time when the Broncos were really struggling. I think I may have seen this in New York closing about crossing the 50 yard line. And I added a little clip of wouldn't it be nice if the Broncos just had to cross the 50 yard line in order to get touchdown? It's got the jury laughing a little bit on that. So there was, my idea for jury selection was to get the people talking as quickly as possible. And they did, and they did the work for us in a lot of ways. There was one juror, so there was a couple who took polar opposite stances.

One saying, this lady, she told this story about a former roommate who basically made up being involved in a crash in order to try to file a lawsuit about how she thinks plaintiff's lawyers are sheisty because of this. And she could never be involved in a case like this because that turned her off completely. Now hearing her talk, she was very over the top. It struck me as something like she was sophisticated enough to try to use this as a way to not be on the jury. And maybe she didn't really have these types of feelings as strongly as she was leading on. She was someone that we were able to get off her cause. And I almost hesitated, maybe I don't want her off because I kind of thought she was exaggerating how much she hated plaintiffs in plaintiff's cases. But her, she was useful to just get the discussion going, does anyone else still have feelings like that?

And then someone made a comment about ambulance chasers and that, I mean, I just said, do you think I'm an ambulance chaser? Does anyone think I'm an ambulance chaser that Mr. Dah shouldn't have his day in court because I might be an ambulance chaser or something and just sort of hone on that. I would love that. Got them all to say, no, no, you seem reasonable. You seemed fine. So that was nice that they didn't see yang or scumbag. And there was another veneer person who talked about the opposite experience of being in a crash and feeling like they got really screwed over by the insurance company and negotiating with the insurance company. So that was nice to have that insurance discussion unprompted go on during jury selection as well. That's great. And so once that started going, I just tried to let that go and get as much information as I could out of that. The one thing strategically, when it came down to picking the jury, what I did, and I thanked myself for later, was looking at the panel and there was someone who I thought about striking who wasn't bad. It was just sort of, this is our last one. Who do we strike? And then thinking forward to who I thought Ripplinger was going to strike, looking at who that next person in line was going to be. So the person wasn't on the panel right then, but depending on who rippling or decided to strike would have been.

And so that person identified them as, oh, that could be a case killing person who really doesn't like the case. And so even though they potentially weren't going to be on the panel, I decided to strike that person anyways. And that ended up being obviously it worked out. But

Yeah, brilliant. It ended up being brilliant. Well, we've come to the end of our time here. Thank you so much for being on the program and inspiring us. Is there one sort of takeaway? I mean, what I took away is just the importance of meeting with the clients, but is there one sort of this really, if that's what it is, great. If there's something else, what can the listeners take from your amazing experience in Adams County?

I guess you touched on this. I think, yeah, meeting with the client, getting to know the client. I mean, Paul, since he's become a friend, I've gone to dinner with him and his wife a few times with my wife. I mean, that's not going to happen in every case, but I think Paul will be a lifelong friend for me now, and that's a great value to me beyond just the case. But I think meeting with the clients helps me and I think can help anyone connect to why we're doing what we're doing. Why you're making that call to the adjuster, sending that letter, doing what might feel like a tedious, monotonous task, connecting to the why's of that. It's a lot easier to do that when you really understand and know your clients struggle. And the other thing I'll just say is, this is my first closing argument in a jury trial ever. Wow.

Oh my goodness.

And what I mean to say by that is, it says this to you. It doesn't need to be pretty, it's not going to be pretty. Your first few times in trial, you're going to be nervous, but when you get back to this I, I'm on the right side, this is why I'm right, even though he had a prior injury, even though these other things that they try to muddy the waters, right. If you can bring it back to, okay, I have a righteous cause and I have a framework and a narrative that I put together before we got to trial that I know makes sense to me and I think will make sense to the jury, the prettiness, the extraneous factors, the presentation skills, all the things that we want to be polished to impress other lawyers. It doesn't matter as much as connecting to the client, connecting to the cause, the purpose. And that I think that bleeds through the jury can see that. The jury can feel that. And you can go and get great results even if you don't have a perfect case. Even if you don't have the most polished presentation.

Well, what an inspiring, inspiring interview. And it's been so fun to hear this. And one of the other takeaways that I took from this is these cases happen all the time in Denver. If you think about it, these types of cases, we all have them in our inventory of cases. And kudos to you for jumping in the arena and going to bat. What an amazing result. And thank you so much for appearing on the show. Thanks, Kim. Keith. Yeah, it's been my pleasure. And we hope you continue to enjoy us and hopefully this podcast is of value. That's the main thing, is hopefully those of you who are listening are getting something out of it because I'll continue to do it as long as I continue to get stuff out of it, which every single time I've been able to talk with folks, not only is the inspiration there, but the strategy and the actual how to go into battle and win.

I feel like I get a little better every single day. So thank you again, John, for appearing, and thank you all for listening. 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.