When taking a case to trial, you always want to have the facts in your client’s favor. But how do you handle a personal injury case where the facts are different than they initially seemed or aren’t advantageous to your client?

In this episode of Colorado Trial Lawyer Connection, Keith Fuicelli is joined by attorneys Erin Hogan and Ben Flicker to talk about a trial they recently won in Denver involving a pedestrian who was hit by a van, while running against traffic, at night, in dark clothes, after drinking. Tune in to hear Erin and Ben discuss their trial strategy, from voir dire to closing arguments, ultimately resulting in a hugely successful impairment award. 

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☑️ Ben Flicker | LinkedIn 

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Episode Snapshot

• Getting to know Erin Hogan and Ben Flicker
• The role of comparative negligence in personal injury 
• Trial strategy involving impairment compensation, including impairment rating and impairment instruction
• Analyzing the jury pool
• The benefits of using a trial tech consultant

The information contained in this podcast is not intended to be taken as legal advice. The information provided by Fuicelli & Lee is intended to provide general information regarding comprehensive injury and accident attorney services for clients in the state of Colorado.

Welcome to the Colorado Trial Lawyer Connection, where Colorado trial lawyers share insights from their latest cases. Join me, Keith Fuicelli as we uncover the stories, strategies, and lessons from recent Colorado trials to help you and your clients achieve justice in the courtroom. The pursuit of justice starts now.

Alright, well welcome everyone back to the Colorado Trial Lawyer Connection. And I could not be happier to have Ben Flicker and Erin Hogan here to talk about what is truly an amazing result that they obtained in Denver just a few months ago. So welcome to the show, both of you.

Thank you.

Yeah, excited to be here. Thank you.

When I read about this case and the result that you somehow obtained, I was blown away because, correct me if I'm wrong, but your client was sort of drunk as a skunk and got hit by a car as a pedestrian, is that right?

That's right, yeah. Point two, blood alcohol content. Yeah.

So before we kind of jump in and talk about the case, Erin, starting with you, have you always wanted to be a lawyer? How did you come to be a trial lawyer in Denver?

I had aspirations as a young person to be an attorney until ninth grade when we had a career day and someone, an attorney in the community came in and told us that you had to go to three years more school. And so then I said no way. And then it wasn't until after undergrad, I'd been out for two or four years, I can't remember, dead end jobs. And I had a friend who was taking the LSAT and I learned there was no math on it. And so I said, alright, I'll try this. So I thought I'd be in film, to be honest, I had a fine arts degree in film production, so yeah, never put that to youth.

Well, we're kind of actors. I don't know if it's similar or not now, where did you grow up? Did you go to college here in Colorado?

Yeah, I'm a native, so went to Wheat Ridge High School. I went to CU Boulder for undergrad and then DU for law school.

Okay, go buffs. I was undergrad buff and law school, so love that. And also strangely majored in environmental conservation and yet here I am. Ben, what about you? Have you always wanted to be a lawyer and knew that coming out the gate,

The writing was probably always on the wall for me. My dad was a litigator at the Freaky law firm for about 30 years, since 1980 until he retired in 2013 or so. So it was probably always on the writing on the wall for me. But I didn't want to go into law probably because I saw my dad do it and just natural rebellion. When I went to college, I went to Colgate University back east and I was there. I started off as a mathematical econ major and that trust me didn't work for many different reasons and so I didn't know what I wanted to do, so I decided on English. I called my dad, I said, I'm going to be an English major. And he says, great, you're going to be a lawyer. I said, absolutely not. So he started wondering what I was going to do with that.

He tells me, senior year of college, just take the LSATs, it'll follow you around. And I said, there's no chance I'm ever going to be a lawyer. So I didn't do it then. And then I got out, worked for a few years, and then I started thinking about, Hey, maybe I do want to go be a lawyer. And when I told my dad that, he said, okay, wait a second. We haven't had all the fatherly conversations in our life, but this one we're going to have and you're going to come work for me for a few years before you decide to go down that path to even see if you want to be in the law. And I mean, my background growing up and everything, I was in acting performed at the DCPA. And I like to say, I even tell clients when I meet them that if you've ever seen the movie Chicago, little Ben Flicker saw the razzle dazzle scene with Richard Gear and I said, that's what I want to do one day put on the show. And I still try to take some of that into the trial openings and closings or anything. There's an aspect of we're putting on a show and we got to put on a better show than the other side, and it's got to come across that way. But that's one of the reasons I love litigation is that you get to do that. Yeah,

It's fascinating. And one thing that I'm noticing we all have in common is we all took gap years off between college and law school. I also took two years off. And so I'm just curious how that impacts your outlook on this profession. Erin, I don't know if you think if there's any difference between people that come right out of college and go straight into law school versus sort of having that real world boots on the ground, grind it out type experience?

Yeah, definitely. So for me, I wasn't a really diligent student in undergrad. I was in my major, but most of my other classes. And I think having that time, and I think I was out four years having that time to see how things work in the real world and how brutal it can be. I came back really, really focused. I read Scott Ros and I went and DU has a program called Summer Prep, and I think it's primarily for students who are kind of on the borderline who barely got in. I was so gungho, I'm like, can I take this? And they said, sure. So I did summer prep where they teach you how to brief a case and I felt older than most of my classmates. And I think those of us that had spent a few years working before going to law school actually did better. I don't know if you guys called 'em Gunner, I was a big gunner. And so I knew everybody who was ranked ahead of me and who was close to me. And so I think that really helped. And then too, when I went and I worked at the DA's office for about three years, and I think being a little older, having a little broader perspective really helped there as well.

Yeah, I worked at the DA's office as well four and a half years. Ben, were you a gunner? What was your experience like?

I was going to say I very much was not a gunner. I was similar to Erin in undergrad. I had a lot of fun and did well, but I also felt towards the end of my college experience that I wasn't going to be going to grad school. I wasn't going to be going to law school, so I wanted to graduate with a certain number. I think it was a 3.0 or something. But even from the school I came from with the 3.0, no matter how well I did on my LSATs, I knew I was kind of coming in on the backend to get into some of these schools. I did get into du, but when I got in there, it was, I don't know, apparent to me that there were much smarter people named Darren in the class than I

Was Darren. Much smarter people named Darren

Erin much smarter than me.

No way. I was the nerd who outworked everybody.

Thank you. Well, I'll be honest, even now, I can't tell you how much I've taken from the CT LA listserv, just the Giants like you or other guys like Cheney or whoever else who put stuff out on the listserv. And I can use it and try to make it my own, but I'm not the brilliant mind like Erin is who puts all of this together and stacks it all up. I can maybe go take a few cuts and really swing for the fences, but I was not a gunner in the slightest. But I will say that taking a few years off being in that grind, I mean my first job out of college, I was working at CVS four News as a writer, production assistant, and my hours were 2:00 AM to 10:00 AM Tuesday through Saturday or Tuesday through Sunday and all hours doing all kinds of crazy things.

And it really was a grind and you start seeing what it takes. And so then when I went back to law school, I had more appreciation for sitting in the class and learning and developing and really thinking more than like Erin. I loved my major of English and I loved history classes, but I could care less about almost everything else that I took in undergrad. And I had a couple friends who had the mentality of D for diploma, and I kind of joined along in a couple of those classes. I mean, when I studied abroad, everything was pass fail because I was like, I don't really, I'm here for the experience, but taking the time off, working, getting back into law school, I actually did notice that the students who did that appreciated it and more often than not, did better than the kids who came right out of college. But then again, there were some wizz genius kids who are probably judges right now, which I'm not angling for either. That I'm sure did great, but just having that appreciation for what you're going to be doing in the real world and what the daily grind is helps you because law school is a daily grind in itself and studying for that bar exam is a grind if you want to pass it.

For sure. Well, that is a perfect segue into this case. So Erin, tell us a little bit about the case, the backstory, and of course the most fascinating case is when did you let Ben know he's going to do this case with you?

Oh gosh, yeah, I'll save that. So this case, when it was handed to me, I remember the managing attorney I think telling me, oh, this is a really good one. He was hit in the crosswalk. And then when I dug in, what I learned was, well, he landed in the crosswalk and nobody had any idea at the time where he was actually hit. So our client was at work, long day at work, learned that he might be getting a promotion. His boss learned that he had gotten a promotion, so they went out after work, had some drinks. Our clients, Steven didn't drink much at the time, and so had way too much and kind of got lost on his way home. I know

It well. I know that area very, very well. So he's going across towards all those lofts that are over there?

Yes.

Okay. Towards Ches?

No, away from it.

Got it, got it.

Yes, exactly. At first, everybody, I think the prevailing theory was that he was crossing from, I guess it would be west to east, but after a few phone calls to some of the eyewitnesses, I realized, or I learned, he was actually crossing from the downtown side or the east west towards IITs. So he had crossed all three or four lanes of spear going northbound and made it across a full lane of the southeast bound traffic and almost made it all the way and across of this catering van before he was hit on the front passenger side and thrown across two lanes of traffic into the crosswalk that ran

Parallel this year. Did the catering truck run a red light?

We still dunno. Probably not. Probably what the police were able to get, because the van left the scene was halo footage. So we had Halo footage from the camera at I 25 and Spear and then at Choppers, which was the intersection right after EIT Circle where he was hit. And so I got lucky and we got a great engineering expert to help us kind of piece it all together.

So backing up, what could you see on the halo footage? Could you tell what color the lights were? Did your guy have a walking man? No walking man. What was going on?

So there wasn't a camera at that intersection, so we just saw the van pulling a big trailer kind of pass under both intersections. You could tell looking at the first set of footage that his passenger front light was intact, and then after passing through, or once he got through choppers, you could see that the light was now shining just to the right and the casing of the headlight. Yeah, it was dangling off and there were a couple other halo foot, so he was going to the Denver Center for Performing Arts for a Penn and Teller show. And so there were some cameras there. Those cameras caught him getting out of his vehicle, walking about 10 steps, turning, looking, seeing the dangling headlight, going back and putting it back into the casing.

Wow. So did you have witness, I'm still stuck on the liability piece here. Did you have witnesses that said what was going on or

There were a bunch of 9 1 1 callers. There was one from a gentleman who was on the balcony of his apartment with his partner having dinner after dinner drinks. So looking out, they could see the intersection. Then there were, I want to say three,

Those lofts you were just referencing, they were in those lofts across the Platte River and that little area. But yeah, sitting right up there on the balcony.

So I just have to jump in. I had one of those lofts, and that's why I looked at the, my Loft looked straight at the Pepsi Center when it was the Pepsi Center, so I used to walk across that street to go to Che's with my kids and everything. That's what I said when you told me that intersection, I'm like, I know exactly where this is. So you've got the witnesses and what are they saying? They're able to see.

So the one who's on his yes, on the left balcony is saying, oh, there's a guy. And he was hanging on a tree and we watched him walk, tried to cross spear and a car going northbound, swerved, and barely missed him. And then we think he got hit by a car going southbound on Spear, and he's down and he's crawling through the street. There are cars honking at him. Oh my gosh. Send somebody. And then there were about four other 9 1 1 callers who were driving behind the vehicle that hit him, who called it, who saw him lying on the street. One said they thought it was, he saw it out his corner of his eye, thought he was rolled up piece of carpet at first and then realized it was a person. So yeah, then it was one of those people, a Lyft driver, her name was Suzanne Geer. I hope she doesn't mind me giving her a shout out, but she's the real hero of this story. She pulled up next to the van, saw that the headlight was broken, told her passenger to help her remember the license plate number. And it wasn't until an hour later where she could call it in, and that's how they kind of pieced everything together.

And I know you mentioned that the defendant was driving home. What time did this happen and what was the lighting like?

So it was around just before 9:00 PM I want to say 8:50 PM So it was dark by that time, even though it was mid August. And yeah, that was a big issue though, with the headlights and the intersections all along. Sphere going downtown are really brightly lit. But that was the real issue is because the defendant claimed he never saw him, which just didn't seem plausible.

So yeah, fast forward, the license plate number gets called in the police, go talk to this guy. What's his story?

He didn't see a thing. And at the time, they were only the officer that went out to interview him or investigate, didn't know that he was a suspect. So he just knew that his van was in the vicinity around the time that this happened. And so he said, did you see anything? I guess I think his verbatim, he said, I guess a guy got smoked in the intersection. Oh my gosh. And he was like, no, I didn't see anything. He was going to the Penn and Teller show to load up the catering truck and bring all the equipment back. So they caught him after he had unloaded everything back at his employer's business, which was in Edgewater.

I got to back up who said a guy got smoked? The police officer or the defendant?

Police officer.

Okay, okay. It took me a second to put those two

Together. Sorry, sorry. Yeah, yeah. And so nobody had actually, well, we thought no one had actually seen the incident, seen the collision, but I discovered that there was an eyewitness, and it was the partner of the gentleman who had called 9 1 1 from his balcony. And it was only through listening to the 9 1 1 audio that I heard him reference his partner. He said, oh, my partner had a better view. And I thought, oh my gosh, I bet he saw it. And so I just called them, and at the time I was working remotely on Maui. Turns out that's where they had moved. So we were small world. They're like, we don't live in Colorado anymore. We live in Hawaii. I said, of which island? So a lot of weird things happened in this case and now might be a good time to tell for Ben's part of the story, the craziest piece, which was Ben was told that he was going to second chair this trial the Saturday before the Monday that the trial started. So about a day and a half before,

That's one way to reduce your pretrial anxiety.

It was somewhat freeing. And it was funny because I really didn't know a whole bunch other than what Erin had been telling me of, oh, this deposition was terrible, or this is killing us in this case or whatever. And I was like, oh, I'm sure everything will work out. Don't worry about a thing. And so then I get pulled in and I'm sitting there on Sunday with Erin and Steven, the plaintiff, our client, and I just sit down. I'm like, so tell me about what happened? And he starts telling me, and I'm looking over at Erin, I'm like, how are we going to win this case? Our guy is stumbling around on a Friday all in black, because again, your question of did he run a red light? All the evidence pointed to the fact that our client was walking against the walk signal and against the traffic.

But we kind of used it a little bit to our advantage of when he was going in the northbound lanes because they wanted to say, how could anybody see this guy at that time and night? It was impossible. There's no chance we could have seen them. And that was part of what our expert was talking about, saying, no, there's plenty of light to have been able to react in time and to see this guy. And actually, I remember Susan Geller testified she was the Uber driver who she was asked, well, if he was standing up in the middle of that intersection, would you have been able to see him? And she said, oh, absolutely. It's a very bright intersection.

Wait, she was asked that on cross or in her deposition?

No, direct examination.

Oh, okay. Okay, got it. Okay.

Erin put it out there.

Wow, that talk about walking into a punch.

It was just, could you have seen him? And she's like, absolutely, I would've seen him. It's a very bright intersection. And she also was mentioning, she's like, at this time of night, this time of day, you have to be super vigilant, constantly looking at the road in front of you because there are drunk people walking all over the place on a Friday night at this time. So you have to be so careful. And we're like, oh, this is a terrific for us. But we also mentioned the fact of when he's kind of just stepped out into traffic going northbound, cars swerved around him. Why? Because they saw him. They were paying attention to him. There was this one driver who just obviously wasn't paying attention and didn't see Steven walking around the middle of that intersection and then he gets hit. And that was also one of the parts of it was either part of the nine one one call or the deposition testimony that got played for trial from the witness.

Oh, by the way, the not being able to see him, our witness was across Spear, across the Platte River up on the balcony, and he had been shot in one of his eyes with an arrow. And even this guy said he was able to see Steven walking around that intersection at night in the dark and everything. But that guy was given testimony, and I think this might've been crucial testimony that when they basically hear the thud and they're like, oh, because they saw Steven walking down the street and they heard him yelling and acting drunk, and they're like, oh, who's this character? And then they see him step out into Spear and they're like, oh my God, he's going to get hit by a car. And then he makes it to the median and they thought he was going to kind of make it safe. They turn away for a second, and then they heard again, they heard from that far distance a huge thud. And then they look up and what they testified to was they look up and they saw the van slow down and then keep going. And so it was that aspect that I think the jury hung their hat on that this guy was fleeing the scene of something he knew.

So a question about that. Were you able to establish through discovery if his job was going to be on the line, that's the reason he didn't stay, and how important was it that he didn't stop and stay at the scene? In other words, could you have won this case? Had he stopped and said, Hey, I'm so sorry I didn't see you, Erin, what do you think?

Absolutely not. I think had he stopped, had he stayed, there wouldn't have been a case. I think the biggest factor in the win, in my opinion, is that the defendant at no point showed any remorse, and it just wasn't believable that he, maybe you didn't see him, but we were able to get out. Okay, you didn't see him before you hit him, but this is 130 pound body that you hit and it's flying through the air and you don't feel the impact, you don't hear it. The people hundreds of feet away hear it. And he called it, he said, maybe it was a glancing blow. He just tried to minimize and just even when asked in hindsight, would you have done anything different? No, wouldn't have done anything different. And I just think the jury was just like, oh, no way,

Erin. It was one of these things where the defendant's direct examination was obviously paired tight, scripted, everything that you'd expect. Erin gets up on cross-examination, and it might've been just like the third question or fourth question she asked of, and you've been driving this van since 1992 or 1993, and all of a sudden he's like, he got aggressive and defensive. He's like, I never said that I didn't do this. And so she just very calmly impeaches him like, let's open up the deposition transcript. I asked you this exact question and did you, that's taken out of context. And he got so defensive and angry that he then carried that anger through the rest of his cross-examination where it was so clear that this guy didn't care that he had hit our client. And there was just an aloofness to him of what I got to be here probably for insurance purposes, but I could care less was his whole demeanor. And I think that, and Steven, our client was, he is a likable guy, a sweetheart of a person, a very soft-spoken type of a person, and the juxtaposition, and Erin was able to bring that out in just very simple impeachment on a simple question. So just asking these simple questions where you have an easy answer to see if the defendant will all of a sudden put up walls, it's helpful.

So tell us a little bit about your client's injuries and the verdict this is, and the amount of comparative negligence, if any.

He was hospitalized, I want to say for at least seven days. So he took most of the impact on his right side. So he broke his femur. It was a communit fracture, meaning it was broken in several places. There were pieces of bone fragment you could see in the X-rays. So broke his femur right at the hip, broke six ribs, one or two of his ribs, then punctured his chest, cavity his lung, and then collapsed his lung. And then he had I think, fairly minor liver contusion. But yeah, he was in rough shape. And when you break your femur, you've got to have the metal rod shoved into your leg and screws, and when they do traction too for it, they've got to put a pin across the bottom of your knee and then hang a weight off of your leg. So it was, yeah, his injuries were pretty extensive.

And how old was your client?

27. Wow.

Okay. And then what did you do? Let's talk a little bit about strategy. I know spoiler alert that you ended up with a pretty amazing impairment award on this case, right?

Yeah, 1.1 million, at least 55% of that.

Okay. So what was your strategy? This seems to be the elusive unicorn we're all hunting for. What was your strategy with how to get the jurors to put the money in the impairment bucket versus pain and suffering bucket, and did you get an impairment instruction? So

I guess along these lines, I don't remember any impairment instruction in terms of arguing it. The way we went about it was Dr. Stein was the IME plaintiff's IME for us, and he gave us an 11% impairment rating, and their doctor, they got their own rule 35 and it was Dr. Lesak and he gave a 0% impairment rating. And so on direct basically for Dr. Stein, I let him be the expert. I let him be as good as he can be. And that's kind of my approach usually with our own experts that we hire. I mean, look, just like they have defense experts who are trained and have done this a lot. If you get a good one on our side such as Dr. Sanson, he's done these things before. He knows what needs to be said, how it needs to be said, and I kind of just let him run with things.

Now, there were a couple of times when he's a very slow talking guy, and I was sitting there thinking, oh boy, a jury's going to fall asleep on this one. I better prompt him to the next thing to talk about. But he was very, very good. And except there was one moment when Joan asked a question about, well, the straight leg GRA doesn't have anything to do with the femur, and when you think about the leg raises and lifting up the leg absolutely has to deal with your femur and the leg. And he did one of these where he did a double take and he just looked over and goes, huh, what are you talking about? And I think she lost a lot of credibility with the way she cross-examined our experts. But then with Dr. Lesnik, I basically just did a nice tight 20, maybe 25 minutes where I just attacked his credibility. Okay, I just attacked.

I was saying stuff like you testified that over 90% of this work is done for the defense. Oh, yes. And the defense keeps hiring you because you do a really good job, don't you? Well, I would like to think so, and you do a good job at minimizing the damages of victims like my client, Mr. Doy over here, objection, argumentative. But stuff like that I threw out at him. He has an administrative law, he has an administrative law hearing order out against him where the judge said, Dr. Lesak was more concerned with hiding the truth than aiding this tribunal in the search of truth. And I literally just read those. I read those words. It was right after I was asking him if our client's injuries were permanent. And he's like, well, he could decide to get the rod removed out of the middle of his leg at some point in his life.

And I was like, so the metal rod down the middle of his leg and these injuries are not permanent. He's like, well, he could decide to do so. And so then I just read the words from that order and obviously brought up a huge objection, but I just attacked his credibility and it was very clear that the jury didn't believe a word he said, and he didn't have any credibility with that jury. And in closing, I just remember Erin generally putting out there, what is the value of a human body, a pristine brand new, what's that value? And she's throwing numbers out there and 10 20, whatever it is, and the jury, I believe, came back and just put the value of the human body at $10 million and multiplied it by 11%, 1.1 million.

So Erin, did you walk, I have done that before where you sort of take the value of the human and then you depreciate it based upon the age and then apply. Did you go through all of that or did you sort of dumb it down a little bit? And it sounds like that worked to your advantage if they just took 10 million times, 11%. That's amazing.

Yeah, I didn't actually, I will say this, closing arguments are not my strong suit. And I

Think some people might beg to differ.

It wasn't in this case. I had a hard time with the time we were using trial consultants to help with AV Steven Pad. He was amazing. And I credit whatever success the closing had to do with our verdict to him putting up visuals behind me as I went way off script or way off our outline. And he kind of kept things going behind me. But I hadn't left enough time to really go into a damages model because we were so focused. I mean really throughout the whole case, we were really focused on the viability portion we were going to win or lose on that. We had to get that 49%, and that's kind of what we were going for the whole time. It's like, can we just get 49%? And so I had kind of used too much of my time on that portion, realized I think thanks to Ben and I was like, Hey, hey, you've got five minutes. And I was like, oh my gosh,

Start asking for money.

How much? Well, how much time? So this is Judge ef, how much time did you get for

Closing? 30. 30. Wow. And that time goes by so fast. I just left it up to them and I think because we hammered the liability so hard, that was probably it they were going to find for us. And they just took the easiest route because yeah, I didn't go into the timeline. I did it a little bit with the pain and suffering, but yeah, I think I threw out a million dollars of what's the value of a healthy body? Is it a million? And I told them, I think it's much more than that. Is it 10 million? That's for you to decide what's it worth? And they picked 10 clearly.

And along these lines, let me say something, and you just mentioned how valuable Steven and the tech was. Steven himself has been to a lot of trials and seen a lot of trials. I know that I'm pretty sure he was the tech guy with Kurt Zaner when he got his $16 million verdict against Excel. So he's seen things that work and don't work. And Erin and I were kicking stuff around, I'm throwing out my ideas. I had even brought up do the depreciation. We've got 11% and everything. And Steven was actually the one who was like, this doesn't feel like the right case to do the depreciation model. And he said, just throw it out. Just give him a number and give him the 11%. And I'll put up on the screen a body with 11% taken off and everything. And his, I would recommend taking, if not him, a tech guy who has experience seeing lots of trials two court every time.

Because one, I mean just the tech mean, even us sitting around here doing this, lawyers don't know tech and we don't want to be fumbling around with it. My last trial I just did a few weeks ago, we didn't have a tech, and I'm trying to figure out how to click through a PowerPoint presentation. These tech guys make it seamless. And even doing direct examination or with cross-examination of Lesnik, at one point I'm asking him about his bills and he's disputing it. And I just turned to Steve, I'm like, Hey, can we just put up that exhibit, whatever, and boom, it's up. And it's so seamless and wonderful, but his knowledge, seeing the case and seeing jury trials, I mean, that's one of the things that we don't get as much practice as we'd like, but these guys are in there all the time. And we took his advice on multiple fronts, and that was one of them was because I was telling there and I was like, you should think about doing it.

It's very difficult to do this house depreciation or whatever, depreciation. It's a very difficult thing. You do have to practice. But Steven was, he's like, this isn't the right case for that. Just pick a number and let them go with it. And I think the simplicity of it, the difficult part for the jury was getting the liability to 55% on the defendant and 45% on us. And I think once they got past that, the injuries themselves were so objective because his femur is shattered and he's taken straight to the hospital. So once they got past liability, I think they just said We're past liability and we like those numbers that Erin gave us.

So two questions. What limitations did he have? So young kid fractured femur, was he fully functional at trial or was this something that's impairing his quality of life? Erin, what do you think? You're smiling.

That's a good question. So Steven at trial really struggled. He has a lot of mental health issues. So you could see the toll that just sitting there was taking on him all day. I mean, he was kind of rocking a lot. He hyperventilated quite a bit, but we weren't allowed to bring, they filed a motion in limb. They didn't want to bring in anything having to do with his mental health or his history. He had a fairly significant history of trauma and past abuse, and so they didn't want that in. So what we leaned on, Steven was a runner and we had to bring it in a little bit. And I think we were fortunate to get some leeway on that. But he would run to relieve his stress and anxiety and he was really fast. I mean, he would go run around Sloan's Lake and I think he was at a sub five minute mile.

I mean, it was pretty crazy. He ran everywhere. He ran to work. Ben and I learned on direct of his friend Jamon that they would race each other to work. And so we had a lot of witnesses. We had his friend Jamon, we had his dad, we had his girlfriend all talking about how important running was and how good he was at it. And then he talked about how painful his recovery was that he had to have help going to the bathroom. It was hard to just walk down the street and now he can run, I don't know, maybe a few blocks, but that's it. So we kind of leaned hard on that as far as his impairment. And then the pain, his lungs as well are his ribs. So broken ribs, when he's breathing deep, he's got to massage his chest a lot and it impacts, he can't sit in cars for long periods of time. So we drew that out a lot with our other fact witnesses, his friends and family.

So the total verdict was how much, and then were there, what were the settlement offers before trial?

So 2.6 or 55% of 2.6, which I think came to 1.4 something, something. Yeah. And we got a stat offer following mediation a few weeks before trial for $200,000.

Wow, okay.

We actually came back, our last demand, I believe was $750,000. So

I mean those are very tough facts. And even turning down the 200 good for you guys, a lot of people would not have done that is you have somebody in dark clothes, drunk as a skunk going against traffic. Those are tough facts. Now tell me a little bit about, this is Judge eff, is that right?

That's right.

And what was your overall experience of Judge Eff?

I thought it was a pretty positive experience. I had some difficulties during the trial and thank God for Ben to be there to calm me down. It was a contentious trial for the most part. I get along with opposing counsel. I'd much rather have a cooperative cordial relationship than a combative one, but that unfortunately just wasn't the case. It was pretty brutal all the way through. They wouldn't stipulate to any exhibits and kind of brought up argued objections to things over and over. They tried to keep out, lay witness the Uber driver's testimony that if he would've been standing up, she would've been able to see him. They argued that, gosh, like five times. So the judge was pretty angry by midway through trial, and I think he had to direct his eye or at all parties, and I was stressed and a little sensitive. I felt like, well, hey, have cooperate. We're stipulating to everything they ask us. We're not the bad guys, but I thought he was pretty great all the way through. I think he made, not everything went our way. I think that should have, but no complaints for the most part.

And did you have, as you're telling me about the case, I'm sort of thinking about voir dire. What was your sort of strategy and plan going into voir dire with all these difficult facts

To really hammer that compare default issue? And we posed it as, gosh, I'm trying to think about the analogy I eventually gotten into.

The analogy that you used was if someone is walking through a construction zone or walking up to a construction zone and they don't see the signs that say construction zone, don't walk here, but they start to walk through the construction zone anyways. And then as they're walking, one of the construction workers through his own negligence drops a beam and it falls on the person's head. Who's responsible? The person who shouldn't have been there in the first place, or the person who dropped the beam on the head. And that was the analogy that Erin used. And I thought it was terrific. We obviously got rid of or kicked people off that weren't going to be helpful. Along those lines, there were a lot of people who just said, if you shouldn't have been walking there, then that is totally your fault.

It's brilliant. I love that analogy because it just tightens all of the issues in your case sort of in one thing that's very, very effective. I love that.

And we used, I said, on a scale of one to 10, where would you place yourself? One being I would absolutely sue, 10 being I would never sue. Where do you fall on that spectrum to try to get conversation going? And that took up the majority of voir dire. Again, working on better using my time and going quickly. But yeah, I think it worked out. And one of the things that we haven't mentioned yet, one of our jurors is actually a worker's comp legal assistant who had worked with Dr. Lesnik before. There was some debate on the team, do we keep her, do we not? We ended up keeping her, and I think she was probably one of our best jurors. She gave me a lot of confidence. She was smiling. My paralegal said, oh, she loves you. Which I don't know if it was actually true, but really helps keep my confidence up as we were going through the trial.

So tell me a little bit about the panel. What kind of jurors did you have and in terms of who to select from, because I always am fascinated by the difference between Denver, Jeff cobol, so I'm curious, what were the 15 people like that they took in that you ultimately had to choose from? And then did you guys have six plus an alternate? How did that work

Out? So from what I remember here, it was a very diverse jury pool, lots of different races, ages, educational backgrounds, which is in, I just went to a trial a few weeks ago in Boulder where every single person seemed to be highly educated, multiple degrees and white. That was pretty much everybody in the pool, everybody in the courtroom. But in this one, it was very diverse. And even who was left on our jury, I remember we had a young black man who was sitting right between the woman that Erin's talking about, and an older gentleman who had, it was interestingly enough that he was the very last person to be brought into the jury panel based off of, there were quite a few challenges for cause that I thought Eiff did an excellent job of being very even handed with that. But this guy was the very last one, and he had just a year before, had an insurance claim against him for a ski accident.

And it was one of these where I guess he's like, I might've run into somebody and he wanted my insurance. I got called by my insurance, I got called by a plaintiff's attorney and nothing ever really happened from it. And there was a lot of debate of whether or not we should have kept him on or not. And I think the ultimate decision between us was the guy knows that insurance is going to be handling everything and we're going to be asking for big numbers. And he doesn't seem to hate plaintiff's attorneys from it. He might even have an idea of, Hey, maybe the attorneys looked at it and thought that there's nothing there. So there are good plaintiff's attorneys who aren't just trying to be greedy, but whatever the case was, he was in terms of the just general jury pool as diverse in age and race and background as you would expect in Denver,

What I love about what you just said about that particular juror is so many times when you first look at someone, you might think that they're going to fit into a certain box, but then you dive a little bit deeper like you were just talking about with that particular juror, and they turn out to be not bad for you. So that's very, very fascinating.

And along those lines, you were asking about alternates or anything, there was no alternate. So we were left with six, and then right after jury selection, we come back and one of the jurors, one of the pictures who, I don't think she said a single thing during voir dire, one of those, you just don't know who she is, but she got picked because she didn't say anything. The judge brought us up and said, this jury is having panic attacks about having to sit on a jury. I'd like to excuse her. So we moved forward with a jury of five.

And I love that. I have been trying recently to get an agreement from defense counsel to do that because first of all, I think it's just mean to make an alternate sit there and then not deliberate. And so I love the idea of six, if you lose one, you go with five. But so far I've had defense attorneys agree to it and sometimes they don't. Last trial that we just did was six, but no, if we would've lost one, we might've had a mistrial. So it's kind of fascinating. Wow, what a great story. So where are you at now with getting paid on that verdict of the insurance coverage, et cetera? Where do things stand?

So we've gotten orders on our bill of costs and our defenses post-trial motions. Those were denied. And we received an offer from auto owners. I guess they hired another attorney for $700,000, which was promptly rejected by Mr. Dewe. And then we demanded the full judgment, I think. But no, we gave him a break on post-judgment interest, which by now is probably 8,000 something, maybe closer to $9,000. Though Steven does not want to want to settle it. He doesn't want, he's still got a lot of anger and of rightly so. I mean, he had to watch the defendant at his criminal trial cry and plead and get really a really lenient sentence and then come to the civil trial, our trial, and then act like he didn't care at all. And so that was pretty brutal. So he's not really interested at this point in settling and is willing to go the distance if they appeal. And it's looking like that could be a possibility. I just don't, don't see any viable issues for appeal. I mean, that was the great thing about Judge Elli. He was very even handed. They got a lot of good rulings in their favor, and so I think it'll be a tough road for them. Fingers crossed that they just agreed to cut a check, but I don't know.

How much was the policy? Was it a million?

It was a million dollar policy, yeah. Okay.

Fascinating. Fascinating. And did you get to talk to the jurors afterwards?

We did not. I wish that we would've had the opportunity, but they hightailed it out of there. It was Friday afternoon. But in most juries, I mean, I've done about 60 jury trials and I try to talk to all of 'em. I've never seen a jury leave so quickly, so we didn't really know what to make of that. I keep trying to spot the foreman actually lived in the same apartments where the witnesses saw, so where you used to live over off little Raven or close to there. So my partner lives over there, so when we're walking out walking the dog, I try to look for this juror to see, maybe I can spot him and ask him a question or two. But no, they just bailed.

Wow.

Right out the door. The judge said, if you'd like to stick around or if you want to wait in the back with the jury in the jury room, they had all brought all of their stuff out to the jury box. And the second they didn't go back to the jury room or anything, they all went straight out that door and scattered. There was no chance to speak with a single one. I wish they would've because some of the stuff we're talking about with what worked in closing, obviously a lot worked in closing. And Erin did a phenomenal job because they awarded exactly what Erin asked. So obviously she did a phenomenal job in it. But it would've been nice to hear, why'd you ask, why'd you award exactly or how'd you decide these numbers? And it very well could have just in the end been they spent so much time beating each other up on liability that when they got to damages, they just said, we agree with what Erin said, the damages are.

Wow. One of the things I love about doing these podcasts is I am so inspired by your story, by what you all did with taking that case to trial by your strategy. I love trying cases in Denver, honestly. So that courthouse, it just feels so nostalgic, it's convenient. Everything about the jury pool I find to be really great. And I just am so happy for you both and for your client, and hopefully your client gets paid on this soon and can move on with his life. So Ben Erin, it has been such a pleasure. Thank you both for coming on the show and I cannot wait to hear about the next one. So Ben, you already said you've already had another trial, so is that like back to back trials?

Sure, yeah. My last two trials have been this one and then the one up in Boulder. So a couple of wins, the one I just did with cost and interest, just over 600,000. So I'll just try to keep, maybe it has helped with a couple settlements I've gotten recently where they say that they know I'm coming.

He's in high demand. I couldn't sing his praises loud enough after this trial coming in on a moment's notice and just crushing it. And it was really fun. We had a fun time. I think it was such a team effort. I mean, he is being way too generous with his confluence to me. But it was my paralegal, Katie Levi, our legal assistant, Taylor Cody and Steven Pad and our experts. It was fun. It was tough, but it was a really fun one. Yeah, we got lucky.

I was thinking that same thing to myself as you were telling the story, I'm like, this just sounds like a fun trial from the witness. And everything about the case seemed fun. And so maybe that's why I feel so inspired. Well, thank you both for appearing on the program and I wish you all the best of luck moving forward. With that, we're going to wrap up this episode of the Colorado Trial Lawyer Connection. And what I love about doing this and speaking to Ben and Erin is you just go out there and when you go up to, it's so much work and it's so hard, but then when things come together like they did for you all and been your trial you did since then, it's just so rewarding and it's such a privilege to get to do what we do. So thank you both and with that, until next time, we'll see you next time.

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