Their client, a drywall installer, was injured in a five-car pile up outside Denver. Sean Dormer and Tim Garvey helped him secure a $2.51 million verdict against the driver who caused the injuries.

Tune in as Sean Dormer and Tim Garvey of Dormer Harpring, LLC join host Keith Fuicelli to discuss this recent trial victory in Denver. Sean and Tim recount the facts of the case, how their quick-thinking changed the course of trial, and how they portrayed their client as a victor and not a victim. Sean and Tim also share how they got a shocking admission from defense experts and their philosophies for voir dire, witness sequencing, and closing arguments.

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Episode Snapshot

• Facts of Dormer Harpring’s recent $2.51M verdict in Denver
• Obtaining crucial admissions from defense expert witnesses on cross-examination
• How Tim and Sean capitalized on defense’s undisclosed photos
• How to frame your client as a victor, not a victim
• Why you need to trust your gut at trial
• Creative closing arguments

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. Keith Fuicelli here for another edition of the Colorado Trial Lawyer Connection podcast. And this episode is special, truly special because for the first time we have a repeat lawyer here to talk to us about another trial. And it's really special because first of all, that means that Sean Dormer from Dormer Haring is trying a lot of cases, number one. Number two, he is succeeding in a lot of these cases and having phenomenal results. So his firm, dormer Haring is really just crushing it in the trial world. So we are very excited to have Sean Dormer and Tim Garvey first time appearance at the Colorado Trial Lawyer Connection Podcast. So welcome to both of you. Thanks Keith, really appreciate it. Good to be back.

Thanks Keith. I'm excited to be on your podcast. I think the last time I saw you was in Mexico when we were both there for our weddings and you were there for your wedding. I was there for my honeymoon,

Yes. And there's nothing I love more than Mexico, if I'm honest. I just love Mexico and I go as often as I possibly can. And to all of our listeners out there will know that come December direct flights on United to the new Tulum airport, little known fact that all of you can put away in the back of your minds for your next celebratory trip after your last trial. Nice. So Sean, we've covered before sort of your background and how you came to be in the trial world, but Tim, we have not had a chance to hear from you. Have you always known that you wanted to be a trial lawyer?

Absolutely not.

How did you arrive in this crazy world we call trial law?

Yeah, dumb luck I think is probably the best answer there. I didn't go to law school until I was 30. Before that I managed a record store, which explains my background of my CD collection there. And when I turned 30, I wasn't sure that I wanted to work at record stores when I was 40 or 50. And I didn't even know if record stores were going to exist when I was 40 or 50. So I looked at my undergraduate degrees and realized that a degree in sociology with a minor in philosophy meant that I was going to have to go to grad school. And I literally had no idea what I was going to do. I thought to myself, I really enjoyed logic, I'm kind of good at logic. What can I do in sort of that field? And I remember having a day off from the record store being at my computer sort of on Google and thinking like, oh, what can I do? And then I discovered law school as an option for people who are good in logic. And I was like, cool, what do I have to do to go to law school? And it told me I take this thing called the lsat and I said, okay, what is the lsat? I took the online practice exam that morning and I think I got, I dunno, 1 55 or something like that. And I was like, huh, I'll bet. Turns out that's a decent score,

Humble brag. Oh, I just decided to try it out and I got a perfect score. So I decided I'd go to law school and it's awesome.

And so literally I signed up for the next available lsat, which was like a month or two away. And then I took the LSAT and I did better after studying for a month. Then I applied to law schools, my homeschool of DU let me in. So I said, I guess I'm going to law school.

Awesome. I love that story. So how long have you been out of law school practicing?

I graduated in 2010. I clerked for a year and a half, almost two years at Denver District Court. I clerked with a Bruce Jones who I was his first clerk. And so we sort of figured out how to do this together. And then from there I went and worked at a plaintiff's firm, now known as Levine Sitko Wanaka. And I stayed there for about five years doing mostly insurance. Plaintiff side insurance claims left there and went to McDermott Law where we did plaintiff side ERISA claims and other insurance stuff for about five years. And then I got really frustrated doing ERISA work because I felt like I could never actually hold anybody accountable for screwing over my clients under erisa. And so Sean and Casey, I'd known for years. I knew they were looking for an associate. I wanted to do trial work where I could actually hold people accountable, fully accountable for screwing people over or hurting people. And they gave me an opportunity to come work for them. I've been there for almost two years now and it's been great. I've really enjoyed a practice that really focuses on trial work and being given the resources and the talent around us that really help us prepare cases for trial and getting to go to trial. And

It's showing by your results. I mean the firm has had amazing results, continues to have great results. Super excited to talk about this case. But before we jump into this case, Tim, I'm fascinated by anyone that has the opportunity to do a clerkship before they enter into the actual practice of law. What did clerking for a state district court judge, how did that help you in your practice of law?

Yeah, that's a great question and it's one that I haven't really thought about, but I know that there's a foundation there for sure. The hard part for me is I clerked from 2010 to 2012. I didn't actually start doing trial focused work for another decade. So a lot of that is probably lost on me. But there are pieces that I remember from clerking, I probably saw a dozen or so trials. And the ones that stand out in my mind are the ones that were probably the losses. And at times you feel bad for somebody who lost, but you can see it coming together. And language choice was one. I remember one case where there was a woman who was claiming to have a brain injury and a lot of brain injured people will have weird things happening to them. And so for her, she had a lot of visual disturbances. She was in the courtroom with sunglasses and had to go lay down and stuff. Two things stood out to me on that. One was it was never really fully explained to the jury or the clerk in the court what and why and what was really going on here and how that was happening. So that sort of missing link, that context piece of

It, lemme jump in. Did it feel like without the explanation, did it feel like the jurors might perceive it as a gimmick?

Sure. I think there was also that sort of concern there and anytime, and we can talk about that. I tried to address that in our opening in this case too, but we have to remember that the jurors are suspicious, they've been preconditioned to be suspicious of anyone whose injuries you can't directly see. That was a piece context was certainly something that I took away from that case. And then the importance of word choice of language, because I remember the theme in that case was that she's a compensator and maybe that meant something to the lawyers, but I don't think it meant anything to the judges and it didn't really mean anything to me as a law clerk. I think what they meant as the theme was that this is somebody who is going to get on with their life. She's going to do everything she can to compensate for the harms that had been thrust into her life. She

Perseveres, she's a fighter.

That's right. That

Whole victim to Victor that people talk about not having the woe is me client. But that's fascinating. You were able to pick that up from your observations as a law clerk. That's amazing. Yeah,

And what's funny is it's one of those things that resonates over time is you'd start to put the pieces together over a decade. You're like, oh, that's what they were getting at. And then the other thing when it comes to damages to, I remember a couple of cases where they put on a good case and they get to closing and they're like, and that's why we need $8 million. And it's like, where the hell did that number come from? And those are a couple of lessons I think that I learned that you got to front load this stuff, you got to give jurors context for what's going on. You got to not surprise them by what it is you're going to ask for. And you have to use language that they're easily going to understand and a framework that they're going to easily interpret.

Fantastic. And so Sean, maybe you can tell us a little bit about the case we're here to talk about. And one thing I would like to do is let us know the result right now rather than making everybody sit back and wait. So maybe you could start with the verdict and then tell us a little bit about the facts of the case.

Yeah, well fast forward to 30 minutes and 46 seconds to hear the verdict. So the verdict, first of all, I'm bad at remembering numbers exactly, but I'll kind of go through it piece by piece. So it ended up, I'm going to start at the back and work back down. It ended up being a total payment after costs interests deduction for comparative negligence and all the damages of $2.51 million. Fantastic. Yeah, so it felt great. Obviously still wouldn't choose to go through what our client has gone through for that amount of money or probably really anything. But it was good and we were really happy with it. So the way that broke down was as follows, we had a liability dispute and a comparative fault dispute. 75% of the fault the jury put on the defendant 25 was broken up between another vehicle, a non-party at fault who we didn't really see fault on, and then our client. And so that was 15% on the other driver, 10% on our client going to talk about how and why and then the damages, I don't remember the exact breakdown between impairment non economics and economics off the top of my head, but it was six figures for each one.

So because I come prepared, I've got the answers for you.

Nice, thank you. He brought my notes for me.

Casey's post was wrong. He actually, he got the numbers right, but he got the categories wrong.

Okay. Tim, what are the right numbers here?

The economic and non economics were switched. We actually got more from noneconomic damages than we did for economic damages. So you can now read from your sheet with that correction.

So you've got 8 65 in economics, nine 10 and non economics and 3 86 in impairment.

That sounds right.

Alright, so factually Sean, I hear disputed liability non-party against another vehicle. What happened factually?

Yeah, so it was a multi-car crash southbound on I 25, which for anyone not in the Denver area is our major north south highway and north of town. There's a rural area, it's kind of farmland, beautiful rolling hills between Denver and Fort Collins, which is where the state AG School CSU is. And our client was working up that direction and so was the defendant. And then there were obviously a number of other vehicles on the road that day. It's kind of coming into the late afternoon and evening. A certain part of that highway was under construction and they were widening it. And so naturally to widen it, they start by narrowing it and jogging the lanes to the side. And so the way traffic worked there is you would come over a little bit of a hill and you would have to jog a little bit to the side and that's when our client came upon essentially stopped traffic. And ahead of him there's a Chevy Malibu, which is kind of a black sedan ahead of that is a Toyota Tacoma. And then behind him is a Chevy Suburban or rented, that's the non-party at fault. And then behind that Chevy Suburban is a Chevy Silverado and I don't remember the weight on it but sort of it's a work pickup truck driven by the defendant. So hopefully that kind of sets the scene for you.

Got it. So what happens, hear traffic ahead comes to a stop, I'm assuming your client, everybody hits the brakes. So did the suburban directly behind your client hit your client or no?

So this was the big question in the case he did and it was disputed. How so? Kind of two sides of the same story. Our side of it, the more accurate one in our opinion, and I guess the jury's opinion too was that the non-party driving the suburban slammed on his brakes too late to actually fully avoid a collision and kind of sideswiped our client. Our client moved a little to the right in the lane, he moved to the left, they kind of split the lane and there was barely kind of a minimal brush by a sideswipe between those two vehicles. And then what the defendant said is that that driver was pushed into our client's vehicle by the defendant, but he would've hit him anyway. And the only impact to our client's vehicle was from the suburban. That's going to be important because what happens next is the defendant is coming in less than a car length behind the suburban. The suburban driver has his brakes on lightly for several seconds before he actually fully slams him on pairing that with the tailgating we argued he's trying to warn the defendant. And then right after that sideswipe we pointed out before the defendant comes flying in at relatively high speed, still slams into the back of the suburban and the back of our client's, his work van and rams 'em both forward. Okay. It's definitely a disputed sequence and that was probably one of the biggest challenges in the case.

Did the defendant driver that you sued admit that he was only one car length behind the Suburban? In his deposition,

He went as far as to say I was probably going closer than I should have been. He described it as further backs, a couple more car lengths than that. The way we got the car lengths was actually from the EDR data. And so we went through a huge discovery battle with a non-party actually to get access to the defendant's truck after it had been sold a salvage,

The defendant's truck or the non-party,

We got the not party's truck too, but the defendant's truck was the one that was not preserved. It was sold to salvage and we had to fight with the new owner. You threatened him with contempt? Holy cow. Before he gave us access to it. And so finally we got the black box data, essentially EDR data from both EDR standing for electronic data recorder and we got that from both vehicles that were behind our client and we were able to piece the timing that way and both sides experts agreed that it was less than car length.

So you had accident reconstruction on expert on your side? Yes. Who did you guys use?

We used Kyle here. He's at Compass Consulting Engineers and if you don't know them, they're a group that kind of split off Ponderosa and Associates. They have worked nationally, done a ton of really good work for us on some of our trucking cases and product liability cases as well. And Kyle is a younger engineer relative to the others there, but really, really good, straightforward, willing to kind of go where the data leads, not afraid of, hey, if the data says I should change my mind, I'm going to change my mind, super honest. And that just really can't say enough good things about him.

Who did the defense have on their side?

They use Brad Schultz, who's at hammernik.

And was his conclusions the same or were they vastly different?

Very different. So Tim would actually probably be the best to talk to you about some of those. He was the one who both directed Kyle and cross examine and Schultz and I just kind of shout out in front of Tim, but about him, probably one of the most spectacular sets of admissions he got from Brad Schultz I've ever seen on cross of an expert really collapsed before cross-examination. It was pretty spectacular to see. So that's a fun story to tell

Tim. I'm excited to hear all about it. And my question is these admissions, were they on the fly admissions during cross or were these admissions you obtained in deposition first?

This was all live trial. We didn't depose him. So this was all on the fly at trial and we just relied on the truth. The problem the defense had is they had sort of painted themselves into a corner before we got the EDR data. So there was a whole series of reports and then finally we get the EDR data and we get more supplemental reports and the defense kept taking this very arrogant position of we got it right the first time. Oh, there's more information. It confirms we're right. And then finally the EDR data from the truck that the defendant was driving at the time really proved that they couldn't have been right, but they doubled down and said we're right anyway, despite the evidence and their arrogance is really one of the things that did them in, they also ignored some pretty key evidence that was ultimately really, really bad for them. For instance, our client was driving an astro van. The window in the back of the astro van was blown out. No other windows from any other vehicles involved in the crash were blown out. There is glass on the hood of the defendant's truck that they ignored. And so during the cross-examination, I was able to just get him to admit that the glass on the hood was probably from our client's van and that sort of just started a bit of a snowball of things he had to admit at that point.

Fantastic. Well, I apologize, I got a little bit ahead of myself asking about the cross-examination of the experts. What was your venue and who was your judge?

It was Judge John Oleson in Denver District Court.

Okay. Tell us which one of you all did voir dire?

That would be me. Can

You tell our listeners a little bit about what your thoughts and goals were going in and how much time did you get for voir dire? I guess start with that.

I want to say we got 30 minutes for voir dire, maybe 20, I think it was 30 though, and we were given a little bit of extra time if we wanted to use that specifically for what the judge called de-biasing, which I really appreciated. So our goals in voir dire were number one to just understand people's values. And I've kind of taken on something we learned from the Ari d Lama materials and some of her podcasts that's been great in trying to interview people for a job that you want instead of trying to cross examine jurors or interrogate them to kick 'em off the jury. You'll learn about them by asking the right questions of the people you do want, understanding the juror's needs, getting them talking early. Those are a lot of the kind of corollaries, but really a lot of it is just picking the people with the values that fit a fair decision on the case. Not one based on bias, not one based on being anti plaintiff, one that was going to understand the value of human losses and human life and kind of see things in a balanced way. So those were goals really. It's just that kind of basic building a good team.

Yeah, love that. Sean, could you tell us a little bit about your client's injuries and specifically what the past meds and sort of future meds were because you have this $900,000 in change economic award, curious about the injuries and how that broke out in terms of past and future medical?

Yeah, so our client's injuries were essentially soft tissue injuries to his back. He had a preexisting kind of narrowing in his low back that was congenital. He just born with it or grew with it, but no evidence that it was symptomatic before. It just meant that there was nowhere for very small disc bulges or inflammation to go. So when he got hit, the inflammation from the initial injury, potentially some disc bulges, although the doctors debated about this, including the treaters just kind of created this cycle that really caused him ongoing symptoms including some neurological symptoms down his legs and that sort of thing. So the treatment was going to be, and what was recommended was a laminectomy, which is kind of as back injuries go pretty minimally invasive. They basically remove a part of one of the vertebrae to relieve pressure and he could not do that surgery because he had high blood pressure. So that was something that the defense kind of blamed on him, his lifestyle choices and argued failure to mitigate. And then the second part of your question, you were asking about what the past

Medical and future medicals?

Yeah, so just looking at the past bills were $39,208 and 77 cents and then we argued a range between 819001.2 million on the future. That's at least what we planned on arguing. It kind of became a little bit interesting there because during the defense expert's testimony, the defense medical expert's testimony, he started talking about, well, I think this might be a facet injury. And so on cross-examination we went through and put up on the flip chart what the damages would be if it was really a facet injury and he would have to get repeat radiofrequency ablations and that was somewhere in the range too, but really just gave the jury a lot of options and leaned on your future damages calculation can be an estimate, you don't have to be precise about it and trusted them to do the right thing.

Wow. That is a massive economic award for those types of past meds. Question, did your client have any symptoms from this preexisting narrowing or other issues before this crash?

No, nothing. Wow. Yeah, no treatment, no symptoms prior. So we saw it as a pure thin skull case and the defense tried to argue it more as kind of a causation case, but for this car crash he was going to have to get surgery at some point in his life anyway. There were some treaters who kind of gave credence to that idea. It was just a question of when and navigating that was a little challenging. Also, I think

Who was your main sort of treating physician quarterback, if you will?

He had gone through a couple of doctors and it had been through the work comp system at first, which was problematic. Did not call any of the work comp doctors at trial. We ended up calling a doctor. He ended up seeing later Dr. Pamela Knight and she's a physiatrist here in town, our physical medicine and rehab doc who does interventional pain and spine care a lot. And she's been kind of following him recently. We also called the surgeon who said he is not clear for surgery yet, but who will be doing the surgery And that's Bob Bes.

Okay, got it. Now, Tim or Sean, which one of you did opening statement? That was me. Alright. So Tim, given all of this experience, you gleaned watching trial after trial after trial. Yeah. How many cases had you tried going into this one?

Well, that's an interesting question. I had been involved in five to 10 actual trials. I had actually tried a case three weeks earlier in Colorado Springs with the other partner, Casey Haring. We got a defense to verdict unfortunately on that one. Before that I had tried two cases the year prior after first joining Dormer Haring. Both of those ended in mistrials, neither both defendants in those cases caused the mistrial but got a little bit of a flavor, but they were both first day mistrial, so didn't get to do much in those cases. And then before that I had tried on my own a standalone loss of consortium trial about four years earlier. And then I had done background work on some other cases. So for truly trying four or five cases, not a lot of experience.

So you mentioned the prior mistrials. Now did I hear a rumor that there was a prior mistrial on this case as

Well? That is not a rumor, that is a confirmed fact. Heard it here first.

Yeah. What happened?

Well, during the first day of trial, I was originally trying the case with somebody who's no longer at our office and during our opening we described the crash as our expert had sort of pieced the puzzle back together. The problem with this was that it was a five car pile up in a construction zone. So rather than blocking the highway with five cars involved in this crash, everybody sort of moved off to the side and we thought we had no crash scene photos from how the cars actually ended up. And so it was a really tough job for our expert to piece together the puzzles just based on photos of damaged vehicles. And so during our opening, we described the crash the way that our expert tried to piece those puzzles together with very little information. And apparently the defendant during our opening leans over to his defense counsel and says, that's not how this crash happened. Look at these photos I have that I've never disclosed to anybody.

Oh my gosh.

And so the defense attorney sat on that for a little bit. We call our first witness and then during the break of our first witness, he comes over and we've got an issue. I think we can still try the case, but we've got an issue. I got these photos here are these photos, let's just go ahead and try the case. And we said, no, these photos change everything. We can't put on the testimony now that we know that these photos are counter to what our experts said, the crash happened. And so ultimately the court declared a mistrial. We had sent a request for production for all photos. We're told no photos exist, and the court ended up awarding us costs of about $55,000 and basically held an abeyance our request for attorney's fees until after the second trial.

So going in then to opening statement, what's your philosophy on how you approach opening statement and what you want to accomplish?

Well, I think you got to tell the story that you want to tell. You got to tell your story and I think you have to do it in a way that tells a story that gets the jury engaged. You just put up a series of facts and they're not going to care. I think you have to do it in a way that grabs their attention and I think you have to do it in a way that provides context to the defendant's excuses. I've only tried a few cases. I have spent a long, long time learning from those who try a lot of cases. And so certainly I relied on things from David Ball from Keith Mitnick we're certainly heavily influential. Jesse Wilson's victim to Victor approach and Jesse's somebody we worked with on this case to help prepare our client for trial. There was a trial guides presentation that Jesse Wilson did with Brian Kim and I think Megan Hennessy out of California that they had done and I borrowed heavily from their opening.

And the theory was basically the body and the water approach. You want to put something out there that gets the jury intrigued, well, how do we get here and then back up and tell the story of how we got here. And so one of the issues we were going to have in this case was our client. This was five years after the crash. He hadn't had any surgeries despite surgical recommendations, and he looked okay. He was a drywall installer, still installing drywall. In fact, it started his own company after this crash happened. And so we wanted to get out in front of that.

Did you have sort of an argument that drywall installers beating up their bodies, that seems to play into the defense idea that someone with a congenitally narrow spine who's up there hanging drywall is going to have these problems at some point. How did you take that on?

It was an issue. It was something that we sort worried about. And so I think in voir dire, Sean, did you address invisible injuries or did we not get to that?

We definitely addressed the invisible injuries. Kind of talked about that in voir dire. I also tried to address, especially in the kind of the de-biasing part, just being open-minded and kind of aware of the biases we have about what people's bodies look like. What are you going to think about if you see that he looks like a man? What do you think about when you see what his weight looks like? Those types of things are really important I think to address and just ask the jurors to bring out into the open for themselves so that they can account for it during trial. But yeah, we addressed it.

Yeah, that's just masterful work. And Tim, could you talk to us a little bit? I also recently delved into Jesse's work victim to Victor. For those listeners that are not familiar with that concept, maybe you could touch on it and then explain how you implemented that obviously to great success in this trial.

I'm happy to do that and I've actually worked with Jesse for years and I'm a big fan of his and he's a great guy based out of Colorado Springs and so easy to get ahold of us for here in Colorado, although most of his work I think is still done nationally. Jesse's overall philosophy is that nobody fights for a whiner. You can't tell the whining story at trial and too many people, and it's understandable is we want to complain about how bad somebody's life is because that's true. We're asking money for pain, for suffering, inconvenience, for emotional stress, for the loss of their enjoyment of life, for physical impairment. These are all the things that we have to put on evidence about. And so I think it's easy to get caught in the trap that, well, those are the only things that we should talk about.

Jesse really flips that model in his head and I think to great success, it's the victim to Victor. And so if you think about it and its most basic concept is we do not want to put on a story of a victim. Nobody's going to fight for the victim. We do want to put on the story of the victor, the person that is overcoming what's happened to them, the person that is persevering despite what has been taken from them. And if you think about Rocky, we love Rocky. He gets beat up every time, but he keeps fighting back, he keeps swinging. And so that's really the concept is that you want to present your story, your client as the victor, we want to tell the story not of what our clients can't do, but what they can still do or what they can still try to do.

So it's not the story of my client can't walk because the truth is they probably can walk. If we define walking as taking two steps, they can probably take two steps, but so much more powerful if you tell the story of, and on a really good day when they try really hard, they can make it around the block. It might take them 30 minutes to do it, but they can do it. So the other nugget of this is you got to deposit the joy too, and those are Jesse's words. You got to deposit joy, so you got to tell the happy stories before you then withdraw the pain. So it's not that you don't tell those stories, it's that you got to show how important it was to them for the jury to understand what's been taken from 'em.

So I love the concept and my question is are you accomplishing this specifically through your word choice in the questions that you ask or in sort of pre testimony prep work with your client? In other words, how much of this is attorney directed or do you really have to spend quite a bit of time explaining to the client why this approach is so useful and getting buy-in from the client?

I think the answer is both, but here's the easy part. Most clients agree with it. Most clients don't see themselves as the victim and they don't want to see themselves as the victim they want to be, and often are the person that's like, this sucks, this sucks, this is terrible. I hate it, but I'm doing stuff with my life despite it. And so when you frame it to them that way, it's really easy. We're lucky enough to be able to take for the most part the cases that we want to take. But I will say that in a decade of doing this, I have rarely come across clients who truly believe that they're a victim and their dog dying last Tuesday was because of a car crash five years ago. To me, most clients do see themselves as the victor and especially when you frame it to that way, they're like, yeah, that is me. So buy-in is easy. Sean might have an additional thought or two to add to that because a great question.

Yeah. Sean, what do you think? Victim to Victor?

Honestly, Keith, this is just kind of being open and vulnerable with you and the rest of the listeners. I have been struggling with burnout lately, and that came at the end of a really hard, busy year of work. I've reduced my caseload to deal with that. I've gotten back to a lot of the things I'm passionate about in this job because I love this job. But this approach change has been one of the biggest things for me in fighting that burnout and just getting past it. And it's not something that just you click or you're not burned out all of a sudden it takes a lot of rest and reflection and just recalculating your life. But this is a huge piece for me, and it's mostly because it's inspiring because I think people can flip into the, oh, well, we got to go through every bad thing that's happened to you mindset in testimony, and then they struggle to pick up what you're putting down in terms of advice for how to handle cross.

They come across as morose and depressed and uninteresting in their own testimony and they're not fun to work with. And the lawyers asking those questions constantly. I mean, where do you think that comes from? They're not fun to work with getting beaten down, thinking about only that, and are we really the people they want to be working with, they're really feeling inspired by and happy about and trusting of when we're just talking about all this suck in their lives. On the other hand, the other alternative, this new, at least to me way of doing saying this is we'll talk about the struggles here and there, but the important thing is talking about your victories and why they're victories, why it was hard getting to the victory, and I've had just chills and goosebumps hearing the answers to questions. Are you proud of how your husband handled this? And just seeing a wife tear up and say, yeah, you bet I am,

And

That's what makes me want to come back to work, Keith, that's just so inspiring and I think it's really helped me just in a personal way, honestly. So I love it.

I'll just echo, there's nothing harder in this business than the my life has completely ruined unfortunate clients that we have at times. It just can be so difficult. Then you'll have a client that has faced adversity we can never imagine and has a smile on their face, and those are the clients that just warm your heart with love and joy and get us up in the morning. So I want to thank you for being vulnerable about the burnout, something that we all deal with and to sort of put on this happy face all the time. This job is not very, very hard at times and very emotionally draining. So thanks for being vulnerable. Tim, was there something you wanted to add?

Well, I'll just say what you just said was really important, which is being able to represent the people that really embody the overcoming. Despite everything, they're a joy to work with. Who else? They're a joy for juries.

Yeah,

They're a joy for the juries and the juries love those people and those are the people that they want to fight for. And we were lucky enough that our client, in this case, he embodied that. I mean, he was somebody that the defense wanted to use against them. The fact that he didn't miss work, that life got better. He started his own drywall company and it was like you asked him, why'd you start your drywall company? I was working for my brother-in-Law, and I felt like I was missing too much work and it wasn't fair to him to have me. So I thought it would be easier if I just started my own company and I could come and go as I wanted, and if I let anybody down, it would only be myself.

It's so true. When I think back too to different results, including defense verdicts and really great verdicts, the really great verdicts are the clients that you love and the adverse verdicts are clients that maybe you don't have that same level of love. And it is crazy how the jurors pick it up every single time. I listened to all these podcasts time and time again, and they always start these great results. I love my client. My client was amazing. So it seems like the number one block is always your client and building from that. So my question to y'all a little bit has to do with witness sequencing. So Sean, I don't know if this is a question for you or Tim, did you have a theory on which witnesses you called and how you told the client's story over trial? And before you answer that, how many days long was the trial?

So it's funny, I'm a little neurotic about this. Tim would probably say, so I do think a lot about witness sequencing. The trial was five days, first morning was jury selection. Then we started with openings and the kind of prelim instructions, and then we went into testimony the first day we closed first thing Friday morning, I believe it was right, Tim. And it's funny, I get really into witness sequencing and then it never happens the way I want it to happen. So I'll spend hours on a witness schedule for trial and just think, oh, I got to put this one first and this needs to be our second witness and this person needs to go after this person and I'll put this beautiful story together, this play. Then it ends up looking a lot like Pulp Fiction or whatever latest in the film with zero plot whatsoever, and you're supposed to just figure it out in a one week trial.

Jurors can figure it out. Usually once I turn in my trial schedule to our paralegals who are better at scheduling than we are, and then just say, it's your discretion. You need to move witnesses around to get people scheduled, move them around. If we want to fit someone in, we'll fit someone in. We called the defendant and then we ran out of time with him and we actually asked the court and the court agreed to let us split his testimony and pick it up later. We will at times ask people's family members to just show up for trial, not knowing when they're going to get called, just so we can fill in and be respectful of the jury's time. Those things all take precedence over my stories, although I love to put together my story, I think it helps me kind of strategize the case even if it doesn't ever end up to happening the way I want it to.

Yeah, that's very useful. Talk to us a little bit about who's the defense doctor on this case or doctors.

So that was George Karish Willie,

Dr. Shack.

Yeah, Dr. Shaq as he goes by. So he is a popular physical medicine doctor here, I'll say popular with the defense. He testifies about 90% of the time for defendants insurance companies, things like that. Does a lot of work, comp work. He is very knowledgeable about CRPS, which is a condition that we won't tangent into that, but very debilitating neurological condition, just not this case. This case was about a lot of things, including one of the biggest things for the jury, whether the MRI changed.

Talk to us about that. What do you mean?

Yeah, so our client had a gap in treatment. At one point he was told, you're going to need surgery in the future. I get you don't want it now, come back when you're ready. And so he went almost two years without any treatment or a year and a half. That was a significant issue. The defense said everything before Dr. Shakar will said everything before the gap was reasonable, necessary and related to the case. And everything after the gap was just, he would've been there anyway because of his preexisting conditions. The gap is really what helped them hammer it home. And I'll say our colleague on the defense, Chris Whitty, is great at telling a coherent story, putting a coherent argument together from a lot of different, maybe they seem unrelated to us at first, but he pulls a bunch of different facts together and throws 'em together as this is really the truth here.

That was kind of what they argued. And so what became important was whether the MRI scans from before the gap looked the same as the ones after because if we could show that, we could say nothing changed in the gap. It's the same condition that was there before. He's just gotten to the point where he can't stand it anymore. Sure. So with Dr. Knight, we put up the MRI films that I had gone through the films and picked out the images and screenshotted the ones that were clear in showing we wanted to give the jury context. So we showed healthy levels and the levels that were not so healthy and we picked out the screenshots, use those as an exhibit, had her explain them, had them side by side at times, took off the dates and kind of played the fun game of doctor, you're an expert in this. You've seen thousands of MRIs, this patient, can you tell us which MRI is? Which one from before the gap and which one's after? And she studies them for a minute and really looks and says cringes and looks at the jury. I'm sorry. I really can't tell. That's a show. Don't tell for us. Right.

And let me jump in real quick. I have a disclosure question. How much detail in your expert did you provide as to the specific slides, or did you just say that she was going to testify that the MRIs were the same? Give the listener some idea of what you need to be disclosing to get this wonderful testimony out in trial.

So we always have to keep in mind rule one of the rules of civil procedure, which is that we don't try every case. We don't get to try every case, but we still have to disclose to the degree the defense needs to predict our testimony. So here's what I do usually because I'm not going to be able to go through on every single case and pick out my trial exhibits in advance. So we disclose that. First of all, here are all her treatment notes, here are the images that she reviewed. As you can see from her treatment notes, she has personally reviewed these MRIs. If it's not clear, then we'll clarify that in our disclosure certificate and then we disclose the MRI films all of them as these may be used in trial and then we narrow it down. And so if they want to ask her which are the most critical films during deposition, that's the prerogative. And they can do that if it really is key. I do think it's best practice to be as specific as we can be, but I'll just confess in this case, I wasn't super, I think we had the disclosures we needed to, but it was mostly because Dr. Knight was really good about documenting what she reviewed in her own dictation. I thought we probably could have done a better job. I think we learned some things in terms of how specific we could have been with our disclosures on this one.

So Tim, back to Dr. Shack, am I correct that you cross-examined him at trial?

Nope. You're wrong on that. That was all Sean doing, and it was painful at times and it was really fun at other times.

Sean, I agree. Was it a concession based cross or what was your theory or your plan going into crossing

Dr. Shack? I don't know, man. I think if anything, it was everything under the sun, which is a mistake. But no, in all seriousness, the things that worked well and what didn't, it came out that Dr. Karish Willie didn't review his own MRI films. So he was relying purely on what other doctors said about their own review that killed him. And the jury agreed with that. Right. He

Wasn't honest about that either.

Yeah. How did you find that out? That he didn't actually review the films?

He eventually confessed it, which was great for us, but he wasn't honest about it in his report. And so I think that that was really to our advantage. And I think anytime that you can pull out the dishonesty from a report and exploit that, that's really good. And I thought Sean did an excellent job with really forcing him to tell the truth because in his report he said the MRIs are different or something showed X, Y, Z, and then it comes out. They can't even read MRIs.

I have had this come up in other cases where you get the expert file and the actual films aren't in the file. And so they're saying, I reviewed the MRIs, and is that what happened here or how did you catch him in this statement?

Yeah, I actually wanted to cross examine him and play the same game. We played with Dr. Knight, kind of a knife, can you tell us which I'm going to remove the dates from these, can you tell us which is which? And he wouldn't even agree to look at 'em immediately there. He didn't like where I was going apparently, or was afraid of it. And he said, oh, well, I don't ever review these in my practice. We don't review these. We trust the radiologist. We trust the reading physicians. And then that becomes kind of an off the cuff chapter about how, first of all, you got different reviews or different reads, three different reads and interpretations of the same MRI film from the first ones. Dr. Knight read it thoroughly. You had a work comp spine surgeon who missed some key findings and said, there's nothing here. And then you got the work comp radiologist, not just a work comp radiologist, but the radiologist through the work comp system who read it very similarly to Dr. Knight. And so we got to talk to Dr. Shak about the difference between subjective reports of what MRIs say and objective evidence of what they show and how the jury probably had a better view of objectively what they showed than he was giving them subjectively. And that was just such a fun mirror to all of his litany of, well, that's just subjective what your client's saying. That's not objective.

Do you have a transcript of his trial testimony? I would think that our listeners would be very interested in that admission from him.

Yeah, if we don't have it, we are getting it. We've ordered it. So I don't know if we have it yet or not, but yeah,

It's shocking to me because I feel like every single doctor in my career that I have worked with, physiatrist surgeon, everyone says, oh, I don't trust a radiologist. I have to review the films myself. I have to review the films myself. So to actually have a defense physiatrist say, I just trust what the radiologist said is quite frankly shocking.

Well, it comes down to what's good medicine and what's not. So he's not an interventional spine doctor. He does not do procedures. He treats people for spine conditions, but mainly by treating, I mean, refers out to people who are the experts in it. And the experts are the ones who need to look at the MRI to make sure there's nothing else in there that's going to be dangerous on a procedure to make sure they personally plan out their procedures. They're the ones who need to review the MRIs. So it's kind of a good way of saying why he really isn't the right expert. He's a generalist. He's not an expert in this specific area. He's a generalist.

That is so useful for any of our listeners that are coming up against him in trial

And we're happy to

Share. Let's jump to closing, but I'm excited. Please add me to the list.

Can I jump in just really quickly on one thing, because I think it's a really important piece of this, and obviously Sean has tried more cases than me and certainly maybe more than some of our listeners. But what was really, really important to me is about halfway through Dr. Shakar sch Willy's direct examination, Sean leans over to me and says, I don't think he knows how to read MRIs.

Oh, forgot about that.

I was like, yeah, I agree with you. So it was that trusting your gut piece of it, right? If something's not sitting with you, right, you got to embrace that and test it, right? And you don't go all in on it maybe, but you test the waters a little bit and you ask one question about this and it's like, oh no, that's sort of confirming what I was thinking. And you sort of build on it. And before you know it, you've got him admitting, I don't read mri. I don't even know how to, I'm not qualified. Well, doctor, you just spent half an hour telling this jury that these MRIs, they look different, but you can't even read 'em.

Just love it. So let's talk just very briefly because we're coming towards the end here of our hour about closing argument and what the ask was, because obviously this is just a phenomenal result. I'm assuming, and I could be wrong, that you guys asked for this specific amount in economics and impairment, non economics, and they gave you what you asked for. What were your strategies going into closing to receive this phenomenal result?

Well, thank you for that saying. It's a phenomenal result. We're certainly proud of it. I did closing, so I'll talk about that a little bit. But I'll echo what I said before because it rings true here, which is trust your gut. So I had a closing prepared I'd worked probably for months on. I had prepared it for the original trial. I had then refined it for way too long in the months leading up to trial, I'd have a new thought, I'd have some spare time. I'd go in. I had a nice big PowerPoint. It's a really impressive PowerPoint. And I say that not to be smug, but to make the point that I didn't use my PowerPoint in closing. When

Did you make that decision not to use it?

Before I gave my closing. So I was literally up till two in the morning, Thursday night, fine tuning my closing. I was back up at probably five in the morning to be like, okay, I want to do this and this and this and this. And then I get to the courtroom and there's preliminary things happening. I think we probably did closings at, was it 10 o'clock? I don't remember exactly what it was, but I had plenty of time to sit and obsess and worry about it. And right when the court's like, okay, we're going to call the jury in. I sit down. And throughout trial, the defense had had up a poster board that was a four foot by two foot foam poster board, whatever, big size, sitting in front of defense counsel for the entire trial. I don't even think they ever admitted it as an exhibit.

They just put it there. And it was the order of the vehicles. And it said Tacoma Johnson, and I don't remember all the names, but there was Tacoma Johnson, Malibu Chavez Astro, plaintiff, suburban Jones. And then it said the defendant's vehicle and had the defendant's full name. And I just looked at that and it pissed me off. And so I started my closing by asking the jury's permission to not show 'em my PowerPoint. So I literally just stood up and I said, Hey, thank you all for being here and really paying attention. You've asked great questions throughout this and we really appreciate and really, truly sincerely meaning it thanking the jury for their time. And I said to the jury, I've got another PowerPoint I can show you. And I was up till two in the morning working on it, and I got up at five to work on it some more.

But I'm sitting here and I'm thinking, I just want to have a conversation with you all. Is that okay? And they shook their heads and said, yeah, that's fine. And I said, thanks. And I said, I don't think I'm going to take a whole lot of your time up because when I sat down here, I realized the defense can tell you everything you need to know about this case. And I pointed to that board and I said to the defense, the driver of the astro who's sitting here and asking for your help today, he's nothing more than just the plaintiff. They can't even care enough about him to call him by his name. And this entire time they've had this board and he's just called the plaintiff, and that says everything you need to know about how much they care about what they did to this man.

And that was sort of my intro into talking about it now. It helped because it really played into, they're not going to admit anything. There's glass on the hood of his truck that could only have come from our client's van, and they won't even admit that they hit him. And what does that tell you about what you can believe about all the other excuses that they're giving you? And so I polarized the case in closing a lot, relied on our good evidence, did a fair amount of telling the story of the trial of what we saw, what we heard during the trial, putting it in context of the overall story of the case. Our futures were 800,000 to 1.2. And we got that in through Sanjay Boser from AED, who priced out the future medical treatments. And I basically asked, when it came to the medical, I said, it's 800,000 to 1.2 million.

If anybody should take the risk of which of those numbers is right, the risk should be borne by the person who did the hurting and not by the person who got hurt. So we're going to ask for 1.2 million. We had two defendants. And so while the ego in me wanted to ask for a whole lot more for non-economic damages, I realized that didn't really, because we could never recover it. And so I said it's $1.2 million for anyone listening outside of Colorado. Colorado has caps on non-economic damages of $642,180. I think that's the cap that applied here, but it applies per defendant. And so 1.2 is roughly what we're looking at when it comes to noneconomic damages that we could recover since our economic damages were one two on the high end, I simply asked for $1.2 million in noneconomic damages. I said that if it's going to take $1.2 million to pay the doctors to take time out of their days, time out of their lives, time away from their family, then it seems only fair that the value of a lifetime of pain, suffering, inconvenience, and all that is equal to at least the same amount of $1.2 million.

And then I talked about physical impairment about I tried to do the man with a bag theory. I imagine the man with a bag story.

The black suitcase man. The black suitcase.

That's right. And I started it and it was objected and the judge sustained the objection. And so I wasn't able to fully go through that analogy that I love, but I was still able to get the gist of it out, which is what would he take for an equal trade? What we're here to do is balance those scales of justice, and I talked about impairment as the legislature is separately pulled out impairment because it's the most important thing. I borrowed language from the Colorado Supreme Court and described physical impairment as the right to sound body and mind throughout somebody's own life, throughout their entire life. And Joe no longer has that right? That right has been taken from him, that freedom has been taken from him. That's sort of how I framed that. I said, I can't tell you what that's worth. I think it's worth at least as much as the non-economic damages, because if it wasn't, the legislature would've carved, wouldn't have pulled it out as being the most important category of damages for you to consider. I used themes of this is a verdict for all time. We get it right today, or we don't get it right at all. Making them really realize the consequences and the importance of their work. We basically asked for 3.6 and they gave us 2.1. I can't be too disappointed.

Wow. It's just an absolute phenomenal result and it is just so inspiring. Sean, any final thoughts about this? Amazing results you all were able to accomplish?

Thanks, Keith. I really appreciate it. I just want to say that I don't think I've ever gotten what I've asked for. Not yet. Yeah, right. I think I'm probably just maybe a little out there in terms of how I value these things, and that's okay. That's why we have juries. It's their choice. It's not mine. But yeah, we're always trying to improve and I think just really appreciate you for putting on this podcast and helping us do that. And it's been cool to see you put this together over the last year and I'm just happy to be back. So thanks for having

Me. Well thank you for those kind words, and we can't wait to have you on for the third time when you come back to talk to about, it'll be an eight figure nine figure verdict next time. So thank you Sean, Tim, for taking time out of your very busy schedules. It has been inspiring, it has been educational, and I cannot wait to get back in to trial and implement some of these amazing things that you guys did. So thank you both. And until next time, I'm Keith Fuselli. Thank you all for listening to the Colorado Trial Lawyer Connection Podcast. Thank you for joining us. We hope you've gained valuable insights and inspiration from today's courtroom warriors. And thank you for being in the arena. Make sure to subscribe and join us next time as we continue to dissect real cases and learn from Colorado's top trial lawyers. Our mission is to empower our legal community, helping us to become better trial lawyers to effectively represent our clients. Keep your connection to Colorado's best trial lawyers alive@www.thectlc.com.