They say hindsight is 20/20. Looking back on and evaluating your past trials can serve as a useful tool for improving trial preparation and strategy going forward. 

In this episode of Colorado Trial Lawyer Connection, the tables are turned as podcast host, Keith Fuicelli, and his partner John Lee, who co-founded Fuicelli & Lee with Keith in 2008, are interviewed by Jerry Bowman. Like Keith and John, Jerry is a Denver-based personal injury attorney and the founder of Bowman Law, LLC. 

Tune in to hear Keith and John talk about an MTBI concussion case they tried in November of 2023 in Jefferson County, and reflect on some of the mistakes they made in that case and what they would have done differently. 

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Episode Snapshot

• Keith and John’s early careers as prosecutors
• Creating constructive charts to represent client’s medical issues 
• Accident reconstruction and reliability of black box data
• Keith and John used Elite Trial Consultants to help with their courtroom presentation
• Preparing your plaintiff for trial

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.

Welcome back everyone. My name is Jerry Bowman, and I will be your host on today's episode of Colorado Trial Lawyer Connection. Now, if you listen to this podcast before you are aware that the host and founder of the show is Keith Fuicelli, Keith started this podcast to help Colorado trial lawyers learn from colleagues who are actually trying cases, the lawyers who are putting in the hours and achieving success on behalf of their clients. And today presents a unique opportunity for myself and for the podcast listeners as I will be interviewing Keith and his partner John Lee, about a fantastic result in a trial that they had back in November. Keith, John, welcome to the show.

Thanks. It's great to be here. Although I will just say it wasn't really that fantastic of a result. It was a disappointing result, but I think the listeners may learn something from the less than desirable results that we all achieve from time to time.

Yeah, that's true. Thanks for hosting, by the way, Jerry. We appreciate it.

Absolutely. And before we even talk about that case, I'd like to get a little background information about both of you and John, I'll start with you. Why did you choose law as your career?

Good question. I would say I've always wanted to be a lawyer for me at a young age, I was told really good at public speaking and presenting to people, and so I was drawn to the courtroom. And so I basically spent the early years of my career learning how to navigate trial work in the courtroom and present evidence and cross-examine witnesses, that kind of thing. And it basically led me to this point.

And John, you worked as a prosecutor in Jefferson County, right?

That's right. Yeah. So my first job out of law school, and I would highly recommend it for anyone that wants to be a litigator. I clerked for a district court judge, so I was his bailiff. I was also his right hand person when it came to drafting orders and researching motions for him. Great, great experience. Did not pay a whole lot of money, but man, I made up so much of it, inexperience. And then, yeah, I worked at the district attorney's office in Jefferson County for seven years, and then I went to the state Attorney General's office for a couple of years where I did complex crimes, grand jury kind of stuff.

And how did your experience in Jefferson County prepare you for your work in personal injury?

Well, as a prosecutor, much like as a plaintiff's lawyer, you have the burden of proof. And so it taught me how to put together a case, how to present evidence. I mean, I'm very comfortable in the courtroom, and it helped me also develop that skill of being able to think quickly on my feet and quickly pivot if something doesn't go our way or if something is going our way, how to navigate that and keep going.

That's great. And Keith, you also worked in the public sector as well, correct?

I did. I was also prosecutor for not nearly as long, but about four and a half years.

Okay. And how was that experience?

It was awesome. I said that, I will say it was one of the most fun jobs I had until I started sending people to prison. And then it was just so serious and frankly, I became kind of disenfranchised by the system and I was eager to leave and I always knew I wanted to do civil litigation.

And Keith, a special congratulations to you. I mean, you were inducted into a boda recently, correct?

That's true. I'm really proud about that. The reason I'm most proud about it is the sort of founding principle of civility in what we do. So I was at a dinner recently for the induction thing and with all of these defense lawyers that I've literally gone to war with against, and they were so nice and everybody's nice. And so it is a great organization and I would strongly encourage anyone to reach out to other members. Once you qualify, you have to have 10 civil jury trials. Once you hit that mark, reach out to other members of ABO a and it's a fabulous organization.

Yeah, congratulations on that. Thanks. How did the two of you become partners?

Well, we practiced together at the DA's office, and it was, I would say it was kind of happenstance when I knew I wanted to start a firm. I think John was also looking to get out and start, and it's just easier doing it with someone else than doing it on your own. John, what do you think?

Yeah, no, I agree. We had worked together at the DA's office and then kind of gone our separate ways. And then I remember, I think I was going to court and Keith was going to either a mediation or a deposition, and we ran into each other on the 16th Street Mall shuttle and started talking, and I think we exchanged numbers again, and it kind of went from there.

John, what would you say the most rewarding part of being partners with Keith has been?

I object to that question.

I mean, you've worked with Keith before. There are few lawyers that have his passion and his energy, and that becomes contagious very quickly. And so yeah, either when we're working through human resources issues now we've got five lawyers that work with us and dozens of staff, whether it's a human resources issue or insurance, bad faith or this trial. Keith brings the energy and the passion all the time. It's pretty amazing.

Yes, I agree with that. I feel like a lot of the focus of your firm is on litigation. How do you decide which cases are going to be going into litigation?

I can jump on that. We have, one of our core values is full compensation, every client, every time, and I know it sounds kind of like lip service, but it's not lip service. And so when we have cases in pre-litigation and we know that the case is worth significantly more, so it makes sense for the client to put it in litigation and go to trial than we do that. I would say the other thing is we look for cases to try. We're always on the lookout for, and I'll be candid, we have, is this a trial case or is it not? And sometimes we put cases into litigation that are not trial cases, and you sort of know that, but finding those cases that this is a trial case, this is a case I want to try, we are constantly looking for those cases.

And John, to dovetail off that, how do you decide who will be managing the case once it's in litigation?

That's a good question. Keith takes a large role in our firm when it comes to litigated cases. We have litigation meetings every three to four weeks where we go through everyone's cases that's in litigation. And so a lot of times if either Keith or I are not on the case, we'll offer to jump on or help out the other attorney if we think that they need it. But typically Keith runs those meetings and kind of helps navigate and guide all the rest of us.

And that brings us to the case that we're here to talk about. The two of you tried this case in November of 2023, right? Yes. Yep. Okay. Let's lay the foundation for the listeners. Start off with jurisdiction. Which court was it?

Jefferson County. Let's

Talk about Jefferson County. What has been your experience in Jefferson County, Keith?

Well, we were both prosecutors there, so we feel like we know the jurors and I've tried a handful of cases and have had some, I would say marginal success but have not had monster success yet. It's tough. I think the judges candidly are a bit of a mixed bag, although this was Judge Lower who I thought did a fair job. He ruled against us on some issues we could talk about, but overall was a very good judge. And I like Jefferson County, but it can be tough. I mean, I think Denver is better, so it's kind of a mixed bag.

It's interesting when I remember first starting off, people said that it was an incredibly conservative jurisdiction, but over the last few years I've seen some decent verdicts come out of Jeffco.

Yeah, I mean it's like a third, a third, a third in terms of Republican Democrat, and you kind of have a third third in ages. So it really is sort of a mixed bag. I definitely think you can get fair big just verdicts and I have had some success getting sort of close In this case we did okay, but it's not a bad place to be, honestly. It's not bad.

I agree with you. Let's talk about the judge for a minute. John Keith mentioned that it was Judge Lower. It is my understanding that he took the bench just kind of recently prior to your case. Is that accurate?

That's right. Yeah. So Judge Lower had been a magistrate in Jeff Co for a while, and he was a public defender prior to that, very well respected in the legal community out there. Jerry, I don't know if you knew this, but I was on the judicial nominating commission in Jeffco for about five years, and lower would come before us quite a bit. And one of our processes was to meet with all the sitting judges that would meet with us to kind of get their feedback on who they wanted to work with across the board. They loved Judge Lober. They thought he would do a great job as a district court judge, and we were in fact his second civil trial. He had done one trial before us and we were the second one. And I agree with Keith. I think he was fair. I think he did a pretty good job of calling balls and strikes. He did rule against us on some things, but he also gave us some really good rulings when it came to the jury instructions. So I would definitely try a case in front of him again.

And before I ask about his rulings, let me ask this, do you think his experience as a public defender had any kind of impact on how he ruled in the case?

Yeah, I think so because the defense predictably, as they always do, filed a bunch of motions limited to try and limit what we could talk about. And we don't want him ask about this and we don't want to ask about that. Lowers experiences as a public defender where you don't always get to do that and you've got to cross examinee witnesses. And that was kind lowers thing was like, well, I'm not going to stop 'em from saying it. You need to cross examinee those witnesses about that and get the information out that way. So yeah, I think from that perspective, I think it affected his rulings. He also is a task master. We were there at eight o'clock and we were there until five o'clock every day. And I think that goes back to his public defender experience. We're in trial, we're in trial, we're not messing around doing other stuff.

I love that. I mean, that's great when cases can be handled like that. Keith, tell me about the rulings.

This will be very useful for the listeners because in hindsight, we made a mistake. We had this case had been continued once and in the first trial setting where you have to provide your exhibit and witness list, we sort of listed everyone as may call witnesses, first trial setting, second trial setting. One of the treaters in this case was Dr. Allison Gray, and many of our listeners know that there was a period of time she was completely unavailable dealing with issues with her daughter. Well, she became available for the continued trial and I think that she's a phenomenal witness and would've been critical in this case. So in that second trial setting, we didn't list her as a may call witness. And so about, I don't know if it was a month or three weeks before trial, we said, well, we're going to call her because it was in that pretrial scramble of witnesses.

And all of a sudden it's like, oh my gosh, she's available. Are you kidding me? She can testify. This is great. So we let everybody know and opposing counsel's, Brad Ross Shannon, which I'm happy to talk about, Brad objected to us calling Dr. Gray. And to my surprise, judge Lower did not allow us to call Dr. Gray because she wasn't on the second witness list as a may call witness. And so that was one ruling that was difficult. And then another ruling that just occurred, the end result of this case was a 55 45 comparative fault analysis where our client was assessed 45% comparative fault for the defendant, rear-ending her. We can talk about that all we want. And what he did is he took all of our costs that were submitted, which were more than $200,000 on this case by the way, we excluded some but not much, and then took the remaining and just gave us 55% of the remaining costs. So we have filed a motion for reconsideration. I don't know if that's something worth taking to the Court of Appeals. I don't really know how clear that is, but that was another issue that I felt like he could have ruled in our favor as easily as he ruled against us.

That's a challenge right there. But it sounds like Judge Laura also did some surprising moves as well. I think there was a jury instruction that you got in.

Yes. Well, there was at least the BNSF railway instruction for our listeners. It is an amazing case that details when you give the aggravation instruction and the eggshell instruction and basically stands for the proposition that you don't get an aggravation instruction for asymptomatic preexisting conditions. And he is the first judge, and I have tried to have that instruction given probably four or five times, and he is the first judge that gave that instruction. So I thought that was pretty awesome.

That is a good ruling there. Okay. You mentioned Brad Ross, Shannon, John, tell me about your experience with Brad Ross. Shannon,

Brad's very polite. I think Keith and I worked pretty well together with him. He finds his issues. No one will know the medical records and the ins and outs of every single thing your client has ever said than Brett. Rush in his attention to detail is really admirable. I mean, I got to give it to him. He would find the smallest inconsistencies in things that would be in our client's medical records or even in records from years prior and then blow it up to make it seem like this is the evidence that she's not telling the truth. One example was our client had said that because of her injuries, she was not able to run as much as she used to. She used to be an avid runner. She'd run all the time for distance and for time and she'd go with her kids. Her kids would bike with her when she would run.

And so she made mention in some appointment that she felt like she had gained weight because she wasn't able to run well. Brad found some licensing document from four years prior. This is not a doctor's report or sometime where she would've stepped on a scale. This was like some licensing application where she put down a weight and it was the weight that she was at that she was claiming to have been, that she gained weight to get to that weight. And he rode that horse all through trial, and I will hand it to him, you better be ready because he will find any and every inconsistency and use that to make it look like your client is not being 100% honest.

And Keith, this isn't the first case that you tried against Brad Ross Shannon.

It was the first time that we actually went to trial. I've had other cases that I've litigated, but I think we knew that that is what we were dealing with. All of our listeners know they all know that that is what they're going to be dealing with Brad. And so we had kind of a unique way of preparing for this trial that I'll use for every other trial going forward, and it was this. So the first thing is this case was exceptionally complicated from a treatment and medical standpoint. Basically mild traumatic brain injury, tinnitus, TMJ, cervical fusion, every single medical condition you can imagine, she had them all. She had preexisting everything and had 15 different medical providers. So her medical records were just crazy voluminous.

What we did, and this was a lifesaver and I cannot stress how useful this is, is we created what I called constructive cross charts for 15 different issues that I knew would come up things like the surgery didn't work or the tinnitus or the TMJ and what we did, and this is how we do it, and I would love to hear if there's a better way to do it, I want to get better at this, is every medical provider, their records are in exhibit by provider chronologically in order Bates numbered. And so we create this document called the trial medical chart, which is essentially all of the medical treatment in chronological order that has a summary. And as we are going through the painstaking task of creating and filling in that chart, which involves reading with a fine tooth comb every single medical record, I created all these different charts at trial that had the exhibit and page number with the specific medical record.

There's I think, a real skill to it in the sense that you don't want too much information, you want just the right amount of information. So what I had at Council table was only a three ring binder that was maybe an inch or an inch and a half thick. That was the various constructive. The first one was the main trial medical chart, and below that were constructive charts for every issue that I knew would come up because certain opposing counsel have a reputation for taking medical records out of context. We've all experienced that, right? Oh, well, on this day your neck pain was zero. So I wanted to have a chart that had all of the neck pain so that if anything was taken out of context, we could immediately pop up and say, wait a minute, remember how opposing counsel asked you on this day?

Well, what about this? What about that before? And the last point is we worked with Steven Patway, who was unbelievable, had all of our exhibits, so two sets of exhibits, a clean copy and a highlighted copy, and then would display highlighted copies of medical records when the issues came up. So hopefully that all makes some sense, and I'm happy to talk about my thoughts on admitting medical records or not admitting medical records, but preparing those constructive charts ahead of time with every issue that you think is going to come up in the case so that you have a chart that is only, that issue was immensely helpful.

So just as a practice point for the listeners, do you address this during direct examination or do you wait until after cross-examination?

It would be in you mean if a record is taken out of context?

Yes. So I mean, if you're expecting opposing counsel to bring up X, Y, and Z, do you bring it up yourself in direct examination or do you wait to bring it up?

Well, if there's an issue, I think of course if there's a problem, we want to be the ones to bring it up. But I will say with this context, in context, out of context, the whole Keith Mitnick thing, I think it starts in voir dire. So we made kind of a commitment that in cases like this, it's really important to take everything in its context and start that in voir dire and then in redirect if opposing counsel makes the mistake of taking something blatantly out of context. And Brad's very good. So I'm not accusing Brad of doing this. I think some people do it more egregiously. It's really risky for the defense. They can lose a lot of credibility really quickly.

Okay. Well that was some really good background. I'd like to hear a little bit about the case. John, why don't you tell the listeners what happened in the accident?

Sure. So our client, Sarah Odom, she's a single mom of two kids. She was a social worker in Jeffco Public Schools, and she lived in the Ken Carroll area. So she's driving home on sixth Avenue one afternoon. There's a lot of traffic. Sarah is admittedly one of those people that stays in the right lane. She's a very cautious driver and sixth Avenue, getting onto I 70 there going westbound, which was literally feet from the courthouse where we were trying a case. I'm sure we had multiple jurors that drove past that intersection on their way to court every day. But regardless, traffic is stop and go. She stops, starts again, traffic stops. So she stops second time and she's by the defendant. Now, the black box data showed that in that second stop that her A BS kicked on for Keith. How long was it? Two tenths of a second,

Like a half a second?

Yeah, so less than a blinko an eye. And that was then characterized as a sudden or unreasonable stop because she stopped. So suddenly she was rear-ended State patrol came state patrol issued ticket to the other driver.

So was liability ever accepted in the case? No. Okay. So they were citing comparative negligence the entire time.

The defense's theory was that Sarah made a sudden and unreasonable stop that she basically stomped on her brakes more than she should have. And so their client, the defendant was being safe and maintaining a safe distance, and if she had just stopped with the flow of traffic like everybody else, it would've been fine and he wouldn't have hit her.

We're going to get a little bit more into the black box data in a little bit, but outside of that, was there any other evidence that supported liability against the tortfeasor witnesses, cameras, anything like that?

No, there was not. We did have Guy Barbera do a reconstruction and he also did a video, which I thought was extremely helpful. Keith, if you remember, that was another one. The judge would not let us get into evidence because while it was demonstrative, the judge didn't think, the judge thought it could be misleading because we couldn't exactly recreate traffic conditions and so on and so

Forth. Interesting. And did you hire a guy in pre-litigation or during litigation?

I think it was in litigation when the defense wanted to get the black box data. So one of the things is not a whole lot of visible property damage to our client's car client drove her car home that day. So you start to put this together with the concussion piece. It's a field day for defense lawyers to fight every single issue in the case.

Did she have a trailer hitch on her vehicle?

She did, and we addressed the, they hired Jule Hammer neck who was literally yelling at me in trial. Swear to God. So I felt like I won the day that day. He was literally yelling at me and he cited in his paper the trailer hitch, but then tried to say, oh, well this is not really a real trailer. I don't even remember his excuse for the trailer hitch, but yes, she did have a trailer hitch.

How do you typically combat that when there's a trailer hitch? It limits the property damage that you see on the bumper. How do you deal with that? Typically? I think

It's a work in progress how to deal with that, because in some respect, the more you talk about it, the more you're putting fuel on the fire. And so this became, and we then hired John Smith as rebuttal who said we should have never hired Guy Barbera to do the reconstruction because the other issue in this case that we should probably talk about is that black box data had a delta V of like five or six miles per hour. And so the defense is sort of, look, it is uncontroverted that this was a five or six mile per hour change in velocity, like backing into a, I know all of our listeners have heard this a million times. John Smith's position is that is not reliable and you should never rely upon black box data for Delta V. But then we are in this weird situation of do we call John Smith who disagrees with our original accident reconstructionist, and then now they're saying, well, now they're accident reconstruction shopping. I mean, it created issues. And in hindsight, at some point we should talk about mistakes that were made by us strategically that we hope not make again in our defense. It was a complicated case. I think the fact that our client hit the brake so hard or a BS kicked on, it's easy for us to sort of poo poo that defense, but that's a legit scary defense that people need to take seriously.

Did you get a chance to speak with the jurors afterwards?

No, not the jurors, no. And we also ran John Campbell big data on this case, which was very instructive and turned out to be prophetic, I think too, honestly. Okay,

And we're going to talk about that in a little bit. Now, before we get into all that, let's talk about your client's injuries, which you mentioned a few of them, but can you just remind the listeners what happened to your client in the accident?

Yeah, sure. So she went home, fell asleep that night, went to work the next day, but was feeling so bad she left and then went to the urgent care where she was not diagnosed with concussion. It was mainly neck and back issues at that time, headache issues. Now she did complain of a headache at urgent care, then spoke with her dad who happened to be a primary care physician, and he's like, you're concussed. She then goes a couple days later to her primary care doctor all through Kaiser, who then diagnoses a concussion. And really the concussion was the biggest ongoing issue for her, and it was one of these completely legitimate post-concussive syndrome cases. Our client, by the way, is so lovely. She's just the most amazing human, really fell in love with her and her story. She would work weekends to make up for cognitive deficits that she had. So really that was the main issue was the concussion cervical fusion too.

It's amazing when we have, sorry, I didn't mean to cut you off, Keith. It's amazing when we have good clients with good stories, and it sounds like you had a good one here. John, let me ask you this, because she didn't go to the ER on the date of the accident, but she went to the urgent care the next day. Did you find any issues with her saying that she didn't suffer a loss of consciousness at the scene?

She did have retrograde amnesia. She did say that there were a lot of parts of the crash that she couldn't remember, so that was actually in our favor. But of course that didn't surface until later, I think because of course no one asked her about it until there was actually a concussion.

Did your client have any prior cognitive issues?

Cognitive issues? No, but she was very active and so had prior, I think she had a concussion before, and then she was in a snowboarding crash in, what was it, Keith like 2016, and claimed to have hit her head. That was a prior issue as well.

And did that get surfaced during the trial? Did the jury hear about that?

Absolutely.

There were a couple other issues on the concussion piece that I think are important. So the client didn't remember pulling her car off to the side of the road and was consistent all along with that. And one of the things that we found was she took her car to the mechanic either the day of or the next day after the crash, and the mechanic remembered her and the mechanic remembered her slurring her speech. So we were like, oh my gosh. He testified at trial and he was great and he was credible. So we have the client slurring her speech the day after the crash. So we felt like going into this case, the brain injury piece of the case was strong. And I'm sure all of our listeners are listening to it thinking, gosh, that sure does sound really strong. And I guess all I will say is the post-concussive syndrome cases, the MTBI cases are so difficult. They're so difficult, but we'll keep trying and figure out a way to somehow prove what we know is true.

Well, and remember Keith, we also had the neighbor who ended up taking her to urgent care. She couldn't drive herself. She couldn't stand the light, she couldn't stand the, she had her hands over her ears. She couldn't stand the noise and every little bump in the road was difficult for her. I mean, the lay witnesses that we had within the first 72 hours of this crash were incredible, and I thought they all did a great job. I don't think that the defense scored many points with any of them, but again, going back to what Keith said, it just goes to show how difficult these cases can be because even with all those great facts on the front end with the verdict, it was kind of clear. The jury was a little skeptical.

Look, brain injury cases are always difficult. You're talking about an invisible injury, and when you have lay witnesses who are there kind of early on to support your version of the facts, it's amazing. So at least you had that going forward. It sounds like you had a good opportunity with them. And Keith, a lot of listeners probably don't know this, but you actually are a survivor of a brain injury in the past, aren't you?

That's true, but mine was, no one's going to question my brain injury. I was at Craig Hospital for almost two months. Mine was pretty bad.

Do you tell your story to clients who have suffered brain injuries

Sometimes? For sure. You bring up a great point, and I was just reading this book on witness preparation and it was talking about from victim to Victor. I love talking to clients with brain injuries to give them hope and don't let it fall into this pit of despair. So absolutely, I love talking to people that have brain injuries. I love telling them that it can and will get better, but you got to believe that it will get better, honestly, and I do think, I'll just throw out my personal, sometimes the defense in these cases is, well, people aren't getting better because they're being told how bad their brain injury is and say what you want about that defense. But I'd just be candid. I think there's some validity to that. You have to almost will yourself to recovery, honestly.

Yeah, and I imagine your clients, that experience that you have probably helps you relate to your clients, so it's good lawyering right there. John, let me ask you about the physical injuries. And I know that you guys briefly touched on those. Can you tell the listeners what your client experienced?

The biggest one was an injury to her neck and she ended up, started out doing chiropractic care, did that for a while, tried some injections with Dr. Han, I believe it was, and then ultimately ended up with an A CDF fusion surgery. Keith, I've forgotten which levels it was. Was it C five, C six?

I think so. It was a one level surgery. Dr. Han did.

Yeah. And the surgery was fairly successful. It definitely helped reduce her neck pain. It also helped. She also had horrible migraine headaches that were fairly debilitating. I think that was one of the sadder parts of the trial was when her son testified about how the headaches had affected home life and their relationship. She was a single mom that really wanted to have dinner with her kids every night. They would play games on the weekends, they would go hiking, they would go biking. They were very outdoors, active family. And after the crash, all of that stopped because with the migraine headaches, she would've to take her medication and go to bed. That was it. Other than that, I want to say there were some other minor injuries that resolved. There was TMJ that got better with the device and Keith, I can't remember any of the other physical injuries. You want to jump in?

Yeah, I mean it was the TMJ, the TMJ issue, tinnitus, there were vestibular issues. So there was a lot of treatment that was done through the concussion clinic. And so vestibular issues that resolved some ocular issues that resolved. And when we were getting ready to, we spent a lot of time on our damage model to try to figure out how much to ask for what to ask for. We did use big data to try to figure out what the magic ask was to put these different damages in different buckets, if you will. But main thing was ongoing migraine headaches, which she had before pretty well documented migraine headaches pretty much throughout her life. Then the cervical issues with the cervical fusion, and then it was not just a discogenic, but there was of course a facet injury as well. So you have fusion, but the neck is still a problem because there's facet injuries and then of course the brain injury.

And did your client have any prior neck issues?

Well, yes, because of the time she fell snowboarding where she caught an edge, fell back, her neck hurt, and actually she had treated with a chiropractor for a short period of time, I think. Am I wrong about that? I thought there was a short chiropractic stint of neck injury two or three years before the crash. Yeah,

I seem to remember that. And I want to say the timeframe. So our crash happened in 2019. It was pre covid and then this ski injury was in 2015 or 2016 and I think the chiropractic care was maybe like 2014 or 2015. One of the big differences is with her prior injuries, she would get better very quickly. And then with this one it was very different outcome.

And you mentioned something a moment ago, John Covid. Did Covid impact her treatment at all?

Oh yeah. She ended up, a number of her cognitive therapies were telehealth visits and I that and her treatment slowed way down because of availability.

Sure. Keith, you mentioned big data now a couple of times. Can you tell the listeners what you're referring to?

Sure. And so John Campbell, and actually I believe now jury Analyst is another company that I think, I haven't used them yet, but I want to believe that they do the same thing. But what John Campbell and Alicia Campbell, who's from Denver originally, they essentially, you present your case, well, the first thing is you have to spend quite a bit of time on the submission of your case where you really are giving them your case from the defense standpoint, like Defense strong, but you want to give them clips of depositions, whatever information you can give. And then they essentially focus group your case two hundreds of people. So they present your case to 200 300 people and you get sort of a blotter chart of common responses, what people think about it. And so for example, in this case, we learned that younger jurors were not good for us, especially on the liability piece.

And the younger jurors were much more likely to blame our client versus older jurors, 60-year-old jurors think, well, you got rear-ended, it's not your fault. Watch out and what's in front of you. And that was how we tried to frame it. We knew that Brad is the master of defeating rear end liability cases. I knew that and we tried to frame the negligence as not leaving enough space between you and the car in front of you. So if you have to stop for whatever reason, you are able to do so without hitting that car. But anyway, back to big data. The other thing that you can do is we had three different damage models because sometimes you obviously ask for too much that can hurt you, but if you ask for too little, that can hurt you as well on the liability piece. So we ran three different damage models. We figured out which damage model worked best, and I think that we asked candidly for $8 million I think is what we ended up asking for here. And Big data was very useful. It costs about 20 or $25,000 to do.

And it wasn't your first time going with big data.

No, I think anytime you have a case that is where you're asking for millions of dollars and I will tell you Judge lower in his order and did not exclude the $25,000 for big data in awarding our costs. Now he reduced it by the comparative fault. I'm like, wow. So if any of our listeners out there, we got focus groups, we got everything that a lot of judges won't give you, including big data.

And can you tell the listeners a little bit about the difference that you see between the focus groups that you probably ran before on your own versus big data?

So we did focus groups on this case too, which are very useful as well. But you just have such a small sample size that I think it can be hard derive critical data. For example, it seems like the big issues we always have is what's the damage ask and what are the blind spots? In my case, I think small focus groups can help with the blind spots in your case, but if you're trying to help analyze case value or how likable is a defendant or not likable, I think small sample size can be dangerous.

Yeah, I agree with that. Okay. Let's talk about damages. You talked about the damaged model. John, can you tell the listeners a little bit about the medical bills that your client incurred?

Yeah, so she had, it was around $450,000 in prior medical bills. By the way, another good ruling from Judge Lower, obviously she starts treatment in 2019, and most of her care was lien based. So we got updated lien agreements to comply with the new statute. And Judge Lower said, I think I remember him saying, the statute says, shall so I'm going to exclude any evidence of liens since you've got updated lien agreements. So that was a good ruling for us. So the jury never, Brad certainly intimated that there were liens involved, but the jury never got to hear that that was involved. So yeah, we had four 50 in meds and then I think we asked for a similar amount in noneconomic damages because of the cap. And then I don't remember what we asked for in permanency. I think we gave the jury a bunch of different ways in closing to arrive at a permanency figure.

Well, I was going to say what was funny is strangely, and I have no idea how they came up with it, but they didn't blank us on impairment, but they gave us 10 grand impairment. I have no idea where they came up with that number. The other issue that judge lower no mention of attorney directed care. So that was actually a pleasant surprise. He could have easily ruled against us on that issue that came into play about different providers, et cetera.

And Keith, I know that there have been trials in the past where you didn't introduce the economics, I'm assuming with the bills as high as they were that you introduced 'em in this case.

Yeah, for sure. Yeah. And

Can you tell the listeners a little bit about your success with not introducing the economic damages in the past?

Yes, and I would encourage our listeners to listen to the podcast that was shot right before this one with Glenn Flair because he is a huge fan of not introducing medical bills and will leave out 5,000 thousand dollars in medical bills and has had tremendous success. So I think it's a very good idea, depending on what you're asking for that anytime you have impairment and you have permanency that you think really long and hard about the past medical bills. But here, obviously with $450,000 in medical bills, I think it made sense to go for it. And the verdict, I can't remember what it was, the total verdict was 350, maybe it was like 360 and then reduced for comparative fault. And they fought us hard on the fusion. Of course, they fought us hard on the fusion. They fought us hard on everything, of course.

And one other point, we had Dr. Han testify, the surgeon, he was a rockstar. So if you get the opportunity to work with Dr. Han, we had him up explaining to the jury what happens in a fusion, the actual, and we had him down just doing the whole trial by human thing. So the body's laying here, is it face down? Is it face up? And I'm telling you right now, the jurors loved him. You could just see it. They were enthralled by the whole description of what goes on. For example, I didn't know this, but when you have fusion done, they tie a weight to your head and drop it behind you to expose your neck so they can, I'm like, all this vivid information of what happens in the fusion surgery was fascinating. So I don't know if that was your question, but yeah, he was great.

Where's Dr. Dohan out of?

He's here. I can't remember who he's with, but he did. It was lean based care. I think this was persona care funded all the treatment here and he's very willing to work with you and work with us. And I thought he did a good job. I mean he did a great job at trial. I think the jurors gave us that. I'm not sure how they came up with their number. Who knows.

Why didn't you guys speak with the jurors? Did they just

Take off? We tried. They took off? Yeah. Yeah, we tried.

They wouldn't even talk to the judge because the judge said, I'm going to send you back to the jury room. I've got a couple things to clean up with the lawyers. I'll be back there in a minute if you'd like to stay and talk. And the judge came out a couple minutes later and he's like, yeah, they were gone by the time I got back there. So they were done.

Interesting. In the trial that Alana and I had in Jeffco last year, we didn't get to talk to the jurors, but I actually sent them a letter asking them to contact me and two of them did. Had a conversation with 'em probably five months after the fact and learned some really interesting things, but we didn't get a chance to speak with them after the trial either.

Wow, that's fascinating.

Yeah. Alright, tell me how the trial was managed. The work.

I would say I was first chair on the trial and so just divvied up witnesses. I did voir dire end opening. John did first closing. I did rebuttal close and just kind of divvied up the work from there. Just went with it.

Who handled voir dire? I'm sorry.

I did.

How much time did you have?

30 minutes. Voir

Dire. Was that automatic or did you have to motion the court for more time?

I think we did motion for more time and he gave us an extra 10 minutes and he did give us 45 minutes for opening, which was nice because we needed it. This was a six day trial. I mean it was a bear. There was just so much. And Brad, by the way, will use as much time, whatever time you use, he's going to equal it on his crosses. And I think he does that intentionally, honestly. So it was just painful at times to just this trial, just so no wonder the jurors took off, they were done. They did not want to talk to anybody. They're out of there.

I know the trend in recent times has been in asking the court for kind of a mini opening during voir dire. Did you do that?

Tried and was denied.

Okay. What specific issues did you address during your voir dire?

Trying to think now. Definitely wanting to talk about the burden of proof for sure. Burden of proof and for sure. I can't remember. It's funny that I am stumped now on what we talked about in voir dire.

You did the mitnick bias stuff about if you were picked for a pieing contest.

Yeah, I did that. And

I think you felt him out for being able to award millions of dollars for non economics and permanency.

Yeah.

Okay. And then John, you handled the opening.

No, I did first close, Keith and I, I think that's one thing we learned as prosecutors is that whomever does voir dire usually has a good connection with the jury. So it's awkward when then someone else gets up and does opening if you have this person that just established a connection with them and now someone else is getting up, especially when you have a case like us where you only really have one lawyer on the other side trying the case. So Keith did the opening as well.

And Keith, for your opening, do you use a PowerPoint?

Yeah, for sure. And worked with Steven Patway on coming up with the PowerPoint. I think honestly, I think in this day and age it's almost a necessity, especially in a case that's complicated. This jurors want to be entertained, so spend a lot of time on the opening and the PowerPoint for sure.

And do you tell the jurors the amount that you're going to be asking for at the end of your opening?

Sometimes yes, and sometimes no. I can't remember if we did here. I think it was let's maybe millions, but we don't want to be tied. There's this whole thought about if you want to be tied to the number or not, depending on what happens. But I think in this case, I do try to condition the jurors from dire and on that we're going to be asking for millions of dollars to sort of get that buy-in. And I still will continue to do that. I might change when in voir dire, I bring up the millions of dollars. I heard Kurt Zaner recently say that he's putting it at the end of voir dire when he's built up some credibility as far as the specific dollar amount in opening. I'm not sure I said the specific dollar amount or just if I had mentioned it in voir dire. I think that's enough. And then they sort of know. They kind of know what's coming.

Okay. And you mentioned Steve Pawell. Was that your AV guy?

Yes, for sure. He is wonderful and I highly recommend him to everyone.

What company does he work for?

I think it's Visual Advantage. I apologize that I can't think of his company right at the tip of my tongue. Elite trial. Elite trial consultants is who it is. And he's very, very good and they have a whole team and just the in courtroom presentation working with him. And I will tell you one thing about working with Steven in particular is he's probably observed more trials than anyone in this state. So you can talk to him about what's going to work, what's not, almost like a trial consultant standpoint going into trial, hugely beneficial, let alone if he's watching your trial and can kind of give you a feel for what's going on in the trial.

And I'll tell the listeners, I came and watched your closing and I loved how it was set up. I loved what he did. And specifically John, when you were closing, I saw where you put your computer and it was directly where the jurors couldn't see, and so when you were speaking, you floated so nicely, so the PowerPoint was being presented and they could see you and you were looking at them as well. And I thought that that was great.

Yeah, it was almost like a cheat code because now with PowerPoint you can put notes so it can give you the prompts to remember and you're not just standing there reading a PowerPoint, you're actually making an argument. So yeah, it was phenomenal.

I agree. It's nice to have that crutch to fall back on it if you need it, but you didn't need it. You did a great job regardless. So thank you. Nice work there. Let me ask you guys this, you split closing. Tell me the rationale for that. Yeah,

I don't know. I've sort of always done that. I might revisit that it might make sense to have one person do both closings. I think it's just like from back in the day it was the DA's office. It was always split closings. But I got to be honest, I think if there is a true first chair, maybe the first chair does voir dire and opening in both closings, I think that that makes a lot of sense, especially if there's any thought that that person has developed a relationship with the jury. Honestly,

I agree with that actually. It's kind of a work in progress too though, to see what works. And I mean, it worked for you guys before and I thought you guys did a great job with this one as well. I know that we are probably going over on time, but let me ask a couple more questions about the trial strategy. When did you put your client on to testify?

Generally in the middle.

She ended up being one of our last witnesses. I think.

John, tell the listeners what you do to prepare your client for trial.

That was all Keith on this case, so you're going to have to talk to him. And it was very involved. He put in a lot of time and effort to get her ready.

Yeah, I mean it was hard because we had a medical bill summary, and so there's so much treatment we had to go through at some level. Why did you go here? Why did you do this vestibular, why this, why that? And there's just so much. It was a difficult task that I feel like I could improve on. Honestly.

You're a big reader of some of the greats, including Nick Rowley, and so taking that trial by human approach and meeting with them, I'm assuming that's what you do, and actually break bread with them.

For sure. For sure. Yep.

And then when did you guys call the defendant to testify

First?

Do you typically do it that way?

Yeah, I mean especially this you have sort of a denied liability. I was concerned that the defendant came off likable and that was one of the things we used big data for because he's kind of like this nice enough guy from Evergreen that there's a lot of complexities to it. But we called him first and I thought it went well. I thought that I cross-examined him. I was very nice. And I think in a disputed liability, I feel like you got to call the defendant first.

A lot of experts testified in this case, which is probably why it was six days. I mean, you guys had seven experts on your side

At least. At least.

How did you divide the work there?

I took the majority just because the medical piece of it. And then I think John did the reconstruction piece of it. So we kind of broke it up in terms of medical versus reconstruction. I

Had Reinhart, we had hired Dr. Reinhart to do an IME and sort of be our summary expert, if you will. There were so many treatment providers, we didn't want to have to call all the treatment providers. So I had him, I mean, I don't know many lawyers that know brain injury stuff better than Keith. And so it would've been silly for me to try to get in there and do those witnesses with an expert sitting next to me.

Well, I was going to say just one thing on that. It was a mistake that was made in hindsight, and I think it's really important for the listeners. We had positive brain imaging here, so we had Dr. Y Gorge come in and there was spots on the brain or what have you. But in hindsight, I think it was a tremendous mistake to go down that road. And I heard in a recent podcast by someone else, I think it might've been, I can't remember if it was Ben Gideon and those guys where someone was talking about be very careful about using positive imaging, DTI, all that. It's like you're so excited that you have positive imaging. But in a case like this where we had other people that could tell our client's story, it did not go well on cross. I think the defense scored so many points, and I think it would've been much, much better if we had just gone with our client story on the brain injury. But again, you just have to keep trying these mild traumatic brain injury concussion cases and figure out what works and what doesn't. And as soon as someone figures out what works, please come tell me in need of that advice.

Okay. They're hard. So when you say that you had positive imaging, was it an MRI or did you have a SPEC scan or what'd you guys have?

Well, the original CT scans were of course negative. And we had an initial brain MRI that was read as negative, and then we had a three Tesla whole brain imaging that showed some white matter lesions that were consistent with axonal shearing, et cetera, et cetera. But then of course, they're going to hire someone that's going to say it's not axonal injury. And they hired a neuroradiologist out of Arizona that I thought presented very well on the stand. So this whole sideshow became the imaging. And I just feel like it took away, if we had just never gone there, it would've just been the client story. We've got slurred speech at the scene, we've got neighbors, we've got lay witnesses. I think that's the way you go. I think positive brain imaging is hugely risky, honestly.

How would you say that? I don't know. You don't understand how the jury understood it, but what would you say the difference was between the neuroradiologist and Y GOGI who's not a neuroradiologist?

They made a big deal out of that, and candidly, his DTI stuff was not strong, and I just kind of will leave it at that. If anyone has specific questions, please reach out to me and I'll be happy to go in further detail. But I would say proceed with caution with positive imaging unless it's a brain bleed or what have you.

Okay. Very helpful. For the listeners, it also sounds like Brad decided not to call several of his experts before trial.

Yes, that's true. During trial, people like Dr. THWs and others, he didn't call.

And I'm sure you've dealt with Dr. THWs before.

Oh yes. Many times. Many times.

Do you think it was a good or a bad thing that he didn't testify?

He didn't do testing here, so all he did was a record review going after Stein, who was a treater who I really liked and I thought did an amazing job on the stand. So I think it was a neutral, whether he called him or didn't call him, I think he probably didn't call him because they felt like they scored so many points on the imaging piece. They didn't need to call him. And by not calling him, we had Dr. Perillo as rebuttal. I think they were afraid of him and knew that if they didn't call waits, we couldn't call Perillo.

So you retained Dr. Perillo separately as a retained rebuttal expert?

Yes, and it is. One thing we did in this case that I do think can be very effective is to use different doctors as rebuttal than are your treating doctors Only because I feel like the quantity of experts, it's more impactful that there's multiple doctors that are saying the same thing, I think.

Sure. John, tell the listeners a little bit about the lay witnesses. How many did you have? I think

We had about half a dozen. We had the mechanic, we had neighbor, we had a former coworker. We had her son, so that's four. Keith, am I forgetting anybody?

I think that sounds about right. And one other friend. We had one other friend.

That's right, that's right. And they were all pretty consistent. There were two different Sarah Odoms. There was the one from before the crash, and then the one after the crash. And then of course, we all had eyewitnesses in the mechanic who had actually seen her before. She had been in a car crash where I think her car got hit when she wasn't in it a couple years before. And he remembered her because she was such a nice and pleasant person, because she was so different when she showed up that day, her son testified that was a very emotional testimony, talking about his mom and how things were different with her. We had Sarah leave the courtroom for that while her son testified, we had a couple of neighbors and friends and a coworker that was an Achilles heel in our case was that she had glowing letters of recommendation from people that she had worked with, and they tried to use that to show that this is all ginned up. She wasn't really hurt that badly. And so we had one of the coworkers that wrote the letter that was like, no, man. I was just trying to help her find out she could do the job, but she's good as she was before the crash. No, here were a lot of the problems that she had and I don't know how effective that was, but I felt like that was what we had to do in that scenario.

I mean, I think lay witnesses really helped the case, help the jurors understand the severity of damages. So the trial with six days, do you think that having the jurors gone over the weekend impacted the case at all?

I think so. And I think that's a long time. I wish we, if there's any way to do it shorter, I would. And in hindsight, maybe the imaging piece, so it's a long time, but this is the most complex case. I remember trying where you had every injury under the sun. This isn't one injury, it's like seven. It was a lot.

Getting back to the verdict, you said you put, the jurors put $10,000 in the impairment bucket? Yes,

Yes.

You have no understanding as to why they did that?

No idea. No idea. I think maybe it was one of the other verdicts. I think the verdict was like three 40 and then this was 10, so maybe they just decided they wanted to give her three 50, and so I have no idea.

It was three 90 in economics and we had about four 50 in medical bills, so we don't know where they got that 10,000 in impairment and then 56,000 in noneconomic.

Interesting. And Keith, I know that in the past you've had success having jurors put more money in the impairment bucket. And I will tell the listeners that he does a great closing, has some great slides. If you're ever interested. I'm sure he'll share that with you. Talk to the listeners a little bit about that aspect of closing and what you did to try to get the jurors to understand the impairment.

Yeah, I mean, we just talk about it as physical impairment. You can't say that enough during trial. Everything is physical impairment. Physical impairment, and then I try to put a cap. We don't want a penny more than X amount of money in non economics. This is really about the impairment, impairment, impairment. The issue that's a challenge in mild traumatic brain injury cases is I think if the jurors don't believe your client has cognitive impairment, then you're going to get blanked on that, which I have gotten zero, but in other cases we've gotten 1.4 million. It's case specific, and I think with cognitive impairment, it's especially difficult to thread that needle, if you will.

Well, guys, I commend you for advocating on behalf of your clients. I think that's great. I'm always been inspired by both of you, so really appreciate you taking the time and letting me host your show. Keith, it's been a real honor to sit down with both of you and ask you questions about your experiences and this trial. So thank you.

Thank you for co-hosting and thanks for all you do, Jerry. I really appreciate it.

Yeah, that's all for today, I think. Right? Thanks for joining us folks.

All right, thanks.

I dunno if you have a closing tag or something, but

No, there's, Colt wants to make an appearance.

You want to

See him? Yeah, I want to see him. I haven't had a chance to see him yet. Okay, little guy. So is he a month old or not yet? He's

Three months now. Look how big this little guy is. Three

Months. Oh my God. And I haven't even been, and you live next door to me and I haven't been over. Bad friend.

Yep. So Colt, thank you guys as well.

Okay. All right. Thanks Jerry.

Thanks guys.

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