When you practice personal injury law, you have clients on pain medication all the time. But how often as lawyers do we ask: Is my client addicted? Do we have a problem? 

In this episode of Colorado Trial Lawyer Connection, Keith Fuicelli is joined by attorneys Alana Anzalone and Jerry Bowman. Alana and Jerry share their success story in a challenging motorcycle versus car collision case involving their client, Harrison Rick. They discuss how they tackled adverse facts, identified bias during voir dire, and bolstered their credibility through their opening statement. The episode highlights the importance of connecting with clients and addressing addiction issues in personal injury cases.

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Episode Snapshot

• Addressing bad facts in voir dire
• How the client’s subsequent crashes and addiction to Oxy impacted the case
• An addiction specialist provides testimony to mitigate problematic facts
• Uncovering bias in voir dire
• How to enhance your credibility through your opening statement
• Why attorneys need to get to know the client they are fighting for

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

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

Well, welcome back everyone. My name is Keith Fuicelli and I am thrilled on this episode of the Colorado Trial Lawyer Connection to have my good friends Alana Anzalone and Jerry Bowman talk about an amazing verdict that they recently received on a trial that they did. So welcome to you both.

Thank you.

Thank you.

So tell us a little bit about the facts of this amazing case that you all had such a great result on.

Sure. It was a motorcycle versus a car collision back in June of 2019. Our client was Harrison Rick. He was on a dati motorcycle. He was traveling in the left lane of a two lane road and our argument at trial, or at least our position, was that the defendant, Chris Smith, turned from the right lane crossing over the left lane and when he did that, Harrison crashed into the driver's side quarter panel of his vehicle. He gets launched 20 feet in the air lands helmet comes off and he's sustained some pretty significant injuries.

Okay, so lemme make sure I have it factually. Your client's in the left lane car is in the right lane, they're going the same direction.

It's a one way road. Yes, they're traveling in the same direction.

Okay. And then the car in the right lane turns left directly in front of the motorcycle?

That's right.

Did the driver of the car say that they never saw the motorcycle or what did that driver testify about?

So actually liability was disputed. Chris Smith claimed that he had entered the left lane and that Harrison essentially sideswiped him when he went up on the left side of him. That's not what the evidence demonstrated, but yes, liability was disputed in the case.

When you say that's not what the evidence demonstrated, was there video or how did you go about sort of, you have a he said version of events of what happened. How did you figure out what really happened?

Sure. There was actually a lot that we used. We had several witnesses. One that was exiting the Safeway parking lot, which the defendant was turning into. She had a front row perspective as to what happened. She testified at trial that Mr. Smith turned from the right lane in front of Harrison. We had another witness that was directly behind Mr. Smith traveling behind him on the right lane. He also testified that he saw the turn signal on the silver sedan, but that he didn't get into the left lane before executing the turn. We had the police officer who took some measurements. We had some photographs of the damage to the vehicles, which demonstrated it wasn't simply just a side swipe accident, but more so an actual impact. The collision itself, we had Harrison testifying that he was traveling in the left lane as well. So the evidence certainly supported our position. We just had Mr. Smith claiming that he turned from the left lane. We also had his daughter who was in the car at that time, but during the deposition he testified that he doesn't even remember where he changed lanes. He doesn't remember if he checked his mirrors. He never saw, Harrison doesn't know his speed. So we had some facts that were favorable for us.

So he testified the defendant testified in his deposition that he didn't know if he was in the left or right lane. Did I hear that?

So during his deposition he testified he didn't know when he entered the left lane. He maintained the position that he was in the left lane the entire time.

Okay. And was there any evidence that he didn't know this area well, that any explanation as to why he would've gone from the right lane and then made this sudden turn into the Safeway parking lot?

Yeah, so he flew into town a couple days earlier with his daughter to check out School of Mines and they were staying in Estes Park, I believe, and attending a concert at Red Rocks. And so this was not his first time to Red Rocks, but he hadn't been in the area for a long time. So that part helped us as well.

So you've got denied liability and do you think that that helped the whole trial that they were taking this position that seemed to be contradicted by eyewitnesses?

Not exactly. We had some issues as well which kind of supported contributory negligence if, well definitely some comparative negligence, some specific issues that kind of came up immediately after the crash with the EMTs in the actual emergency room where Harrison indicated his speed was 50 miles an hour, and again, he's on a dati motorcycle. The speed limit in the area was 30 miles per hour and it had been raining all morning. And so that was an issue, a hurdle that we had to overcome. Another one was he told the first responders that he had consumed alcohol for lunch. Several beers told that er the same thing. He also said that he had taken a marijuana edible earlier in the day, so he had some negative facts against him.

To say those are negative facts is putting it extremely mildly. I mean, if I'm hearing this correctly, so your guy is on a crotch rocket, right? I'm not that familiar with the guy. This is a very, very fast motorcycle. He testified that he's going 50 and a 30 and that he had had booze and marijuana.

Well, he didn't testify to that. He made these claims to the first responders and to the emergency personnel, but his testimony was a little bit different from that. What we did was we actually couched it in terms of a miscommunication. We had indicated that Harrison said 15 when they overheard 50, but that didn't really explain away why that was represented in the emergency room records as well. We attempted to demonstrate that he was not only in shock but also was under a significant amount of fentanyl at the time, which maybe contributed to some of the statements that he made. But in addition to that, we made arguments about that stretch of road specifically and he was about one mile from his brother's home. Harrison didn't live in Colorado, he was only in town for a few days. He had been here before, but he had brought his motorcycle on a semi-truck because he was a long hauler. And basically we made the argument that he was familiar with this position that his position on the motorcycle itself, which was testified to by another witness, was that he was, his legs were kind of hovering over the ground a little bit and that was almost in a way to protect himself if something happened like he fell. And so we argued that he wasn't going 50 miles an hour. We are not sure whether the jury believed that or not because we didn't have the opportunity to speak with him.

Okay. Alana, did you all do any focus groups? I mean this sounds, I remember I actually was speaking with Jerry about this case before you all tried it and I was just thinking to myself, this is a very difficult, very difficult factual case and we haven't even started to talk about the injury side of this yet. But Alana, did you all do any focus groups or what was the strategy going into trial on dealing with such a difficult liability case?

Well, so Jerry did do focus groups. I unfortunately couldn't participate in those, but I think when you think about the actual act of the defendant, there is no way that the way he's saying the crash happened could have happened. I mean, I crossed him in our case in chief, and if you take his word for it, you have to then assume that our client is going around him on a very, very tiny shoulder, which is very numb or on the sidewalk. It just cannot happen the way that he is saying that it did. We stuck to that pretty strongly. And then I think with regards to the statements, client was really good on stand and I think that with respect to speed, I've been on that road before. I don't think even on a Ducati he could be going 50. And so hopefully the people in our community in Jefferson County have driven that road and recognized that as well. But then with respect to the drinking, I actually talked about it in voir dire. I asked people if they've had drinks at lunch on a Sunday because this was a Sunday. Virtually everybody raised their hands and I asked them, have you ever driven your car from lunch?

Have you ever driven your car after having a beer at lunch?

Sure.

Everybody raised their hands. There was also no evidence to support that he was unable or unfit to drive his motorcycle. We were really focusing on the fact that there is no evidence. So he may have said it, take it with a grain of salt, don't blame him for it. There's no reason to believe that he could have done anything different to avoid this crash. The defendant moved, turned in front of him and that was it.

Now, what were the facts about the marijuana consumption? Was that, did he admit that he had consumed marijuana earlier in the day? What was the evidence on that?

Well, in the record that says it, but he maintained in his deposition and his trial that he didn't, and the reason he said that, and also why he said that he had a drink was that he wanted the medical providers to have a full picture of potentially what was in his system. And it could have been the night before. I mean, he's eaten marijuana edibles in his life and probably shortly before that he maintained, it wasn't that day, but he knew he was going into a major surgery. He knew they were going to be giving him medications and he really just wanted, his explanation for that is that he wanted them to have a full picture of what's been in his

System.

So to sort of back up, and I should have asked this question at the beginning, I'm sorry, you mentioned it was in Jefferson County? Yeah. So what city did this collision occur in?

Golden.

Okay, so you're in Golden Jefferson County. And who was your judge? Judge

Riesman.

And what were your overall thoughts about Judge Vriesman? I've seen some pretty good things on the listserv about Judge Vriesman.

Well, I will say at the end of the trial defense counsel, Colin Campbell came up to me and he said, I want to tell you that you handled yourself with poise because it was clear that you were being picked on by Judge Freezeman. He was making you do stuff that other people didn't. I mean, the stuff he sustained and overruled on each side was so drastically different. Wow. Point where I actually chatted Jerry Colin was asking a line of questioning that I said, this is absolutely not appropriate. We should object. It will be overruled. And he looked at me, he didn't see my chat, he looked at me, he goes, should I object? And I said, yeah, you should. Lo and behold, overruled. Wow. It was very one-sided. He makes his own rules. At one point our expert was testifying and he had 11 points for the basis of his opinion.

It was our addiction specialist points for why he diagnosed our client the way he did, and it's pretty grueling 11 points. I said, can you please say the basis for your opinion? He goes, well, do you want me to just read my report? And I know that's unconventional and typically not admissible, but I said, sure, no objection from defense. He starts going through six points already through six. I said, okay, turn the page. Judge Breman woke up and said, I'm sorry, what are we doing here? He can't just read from a report. I said, well, your Honor, there's been no objection. He's already read five points. And he was just very obstructionist. He made a sidebar. He pretty much stopped every flow of testimony of witnesses that we had.

I've had interactions probate with him, which I'm sure anyone that's appeared in front of him for probate sort of knows that temperament. That's why when I had seen some of the comments about him, I was pleasantly surprised that it seemed like maybe you could get a fair trial. And now I'm back to where I originally was on my thoughts and we'll see what happens in Jefferson County. Do you think that the judge picking on you, how do you think the jurors perceived that? Did that hurt you or in a way, could it have helped you ultimately?

It's always hard to say. I looked at them certain times where my emotions were getting the best of me and one of 'em even nodded at me and made eye contact with me in those moments. Ultimately we won. So I don't know if it matters. I think jurors can get frustrated by it. I think it was very obvious that he was doing it, but at the end of the day, I don't know, and we didn't get a chance to talk to the jurors. He took an hour of their time after trial to talk to them and then they left.

Wow. Did he share with you any of the feedback that the jurors provided him?

No. Both Jerry and I were out of town, so we didn't even receive the verdict, but Jerry's associate, Jess was there. And so when Colin Campbell was also out of town, his associate was there and neither of them got any feedback from the trial call.

And Jerry, while we're on the subject of Colin Campbell, I have not tried a case against Colin, but he seems very nice. He strikes me as the type of defense lawyer I would be very afraid to try a case against because he's so nice. What was your interactions like with Colin Campbell?

I agree with that. Colin was incredibly nice. I think he presented himself well in front of the jury. I think the arguments he made were very thorough and complete. I think that he made really good game time decisions too. As we were navigating through the trial. We worked really well with him to the point where we had several of his witnesses testify during our case in chief. And really when we got to his case in chief, I don't think he had much more to present. I think he put on one witness and that was the end of it. But he was organized. His arguments were well constructed. I thought his objections were sound as well. Unfortunately, as Alana alluded to, a lot of those objections were in his favor. But yeah, he was great to work with and even when we had issues, he was amendable. And so yeah, I mean, would look forward to working with him again.

Great. So I wanted to talk a little bit about this fascinating part of your case about the addiction. Alana, you mentioned an addiction specialist. So tell us a little bit about your client's injuries and how addiction played into that. I dunno, Jerry, if you want to take this.

Sure. Harrison, he wasn't really into drugs prior to this crash. I mean, can you use the occasional marijuana and consumed alcohol? We had people testify to that, but he wasn't taking any kind of prescription medications or anything harder than at the scene. He was administered hundred micrograms of fentanyl. And then when he was transported to the emergency room, he was given 300 more micrograms of it. He was given I think a hundred micrograms or milligrams of ketamine, some oxy. And so basically his consciousness was altered throughout that time period. When he gets out, he's in incredible pain. I mean, he fractured his left ankle. He had hip fracture, he had to get surgery, spent five days in the emergency room and throughout that time period he was administered different types of drugs. Then when he left, he presented to Panorama and he sought some further medications because of the pain symptoms.

Now, for the first two months, he was essentially staying on his brother's couch in gold. He had a semi-truck there. He was living in Florida at the time. He basically couldn't work at all, couldn't walk. It took him a few more months before he could actually walk again. And during that time period he was consuming some of this oxycodone that he was getting. Now in November of that year, 2019, he basically had gone into the doctor at Panorama and noted that he wanted to discontinue the medications that he was stopping taking it. And he did try. He tried briefly, but then he went down to the springs, Nancy Springs actually, and he did some aquatic therapy, physical therapy about a month, at which point his mom, Linda flew into town and then drove him back down to Florida because he was in no position to fly or drive. When he gets down to Florida, he seeks some further medication and we have the prescription logs that show this. But then in December of that year, so about six months after the crash, there's no medications that we see him consuming, but instead the information is that he started taking these pain meds on the streets. Wow. And he's doing a lot, a hundred milligrams of oxy per day, sometimes even more than that.

Wait, so lemme stop you. He's buying pain meds on the streets. Yes. Wow.

Quite often too. I mean it was hard for Alana and I because we got to know him really well and he was such a good, great kid. He developed this addiction and it was something that he couldn't really combat. This went on for a few years to the point where he gets into like 2021 and he does a brief stint in rehab in Tennessee. Wasn't it 23? The next one was 23, so that was Red Rocks in 2023, February. So this trial happened in two months ago in August. And basically three months before that, he had entered himself into rehab at Red Rock's facility in Golden for about 30 days. And this was the first period of time where he actually was clean for a little bit. Now the problem was Harrison has this issue where in April, 2022, he stops taking the oxy and almost a week later he goes in the emergency room.

He starts reporting fainting symptoms and dizziness and headaches and fatigue. And he tells the ER doctors that he had stopped consuming Oxy about a week earlier. And basically he understood it to be that he was going through withdrawal. A few days later, he gets into his car, he drives four hours up to Orlando to help his mom move something drives all the way back down to Naples and he's about a minute from his house when all of a sudden he's driving and things start to go dark and he just passes out. When he came to, he's talking to police officers and he sees his truck in the background. He had crashed into a utility pole and it came down Wow. He basically had to get his jaw wired shut, which he had it shut for five weeks. And that was a pretty significant issue. When he goes and his, when he gets the surgery, they reintroduce the drugs into his system.

So now he has Oxy back into the system and he starts using again. Wow. Fast forward five months. The same exact incident happens in November of 2022. And so he has this issue where he starts to faint and get dizzy and he passes out, gets into another car accident. So this happens multiple times and he starts to recognize obviously he has an issue and he's not able to kick the habit. And so in March of 2023, the year of the trial, he enters himself into rehab 30 days. And when we got to trial, he was approximately 90 days clean, which

Was great. Wow. All this evidence comes in during the trial, all the subsequent crashes, the addiction to Oxy. And my first question is, before your crash, did he have a history of any kind of addiction or any issues with pain meds before the crash?

No, and in fact, he had a surgery back in 2013 and he was given a prescription for Oxy and he took one of them, never refilled it, threw it away, didn't use it ever.

Wow. So this is just a true, I mean, I'm sort of assuming the jurors recognized this isn't a pain pill person that happened to get into a crash. This is someone that got addicted to Oxy through no fault of their own. Is that sort of how the facts came out? Yes. Wow. And so ultimately, how did the subsequent addiction to Oxy, how did that play into your damages in the case? How did that impact how he was presenting at trial?

Yeah, we kind of separated the medical bills. We started with the medical bills stemming from the crash directly, all the physical issues, some of the cognitive issues. But then the subsequent accidents, we did introduce those as medical bills and we claim that they were causally related to the crash, which increased the overall medical bills to something the tune of like $390,000. We don't know if the jury accepted the position that we had, if they agreed that the subsequent care, the ER visit and the job being wired wire, the subsequent accidents were actually included as part of the economic damage. We don't know that, but we made that argument and we think they helped.

Do you not know because you claimed future medicals? Because I guess my question is what was the economic award in the case?

Right. This is

The problem that we couldn't talk to them. There was 136,000 of hip and ankle medical bills,

Clean orthopedic. Colin stipulated to it. It was in there. Imagine they accept it. Our economic award was 500,000, something like that. Five 60, something like that. There was a wage loss claim that was, in my opinion, soft. It wasn't my favorite. So there was no future economics that we had boarded or they didn't have any evidence of it. But what I was going to say is Jerry brought this idea of these supplemental economics up to me when we were first roundtabling the case before we filed. And I was like, that's crazy. I don't even understand. There's no way this will fly. This guy's addicted to meds. And he goes and drives his car and gets himself in this predicament. And the more and more we developed it, the more I was like, yeah, this is real. We need to fight this, which is really creative, I think, and really risky. So I loved that part of it. I don't know the answer to it, but even if they didn't, I would do that every time. Again, I would never put that aside out of fear that that sounds uncredible or fear that they're going to think we're asking for too much.

You know what I love about what you just said is that as I heard you explain that situation and why Jerry came to you with his desire to claim those economics, and he spoke to me about the case and I had the same initial reaction that you did about those is that it's the truth. And you guys knew that was the truth in your heart and that's why you went forward with it. What a fantastic result that at least one way or the other, the jurors seem to have given you a lot of economic damages in the case. It's really unfortunate you weren't able to chat with the jurors just to hear what their response was, but it sure seems like it worked. Question is, did they assign your client any comparative falter? Was it zero

30%.

Okay. And then Alana, you had mentioned that you called the defendant in your case in chief. When did you call him in your case and what was your thought process on when and what you were hoping to accomplish with the defendant? Yeah,

So he was called strategically after the police officer and the one independent witness because we knew he was going to not agree with that. So basically the whole goal was you've sat here and listened to the evidence and you disagree with people who have no skin in the game, who saw this directly in front of their eyes. So the one witness, I can't remember her name right now, Sarah Alexander Sarah. Okay. Literally, I mean the accident happened in her 12 o'clock line of sight. Wow. She closes her eyes and sees it and she's just sitting there waiting to get into traffic. So you can't get a more credible explanation of what happened. So putting him on right after that I think was helpful. I think they took into account speed.

Jerry, what was your objective view of how the defendant presented? Do you think the jurors like him disliked him?

Honestly, I think they probably liked him a little bit. I didn't have an issue with him. I thought he presented well too, but his constant denials after hearing from multiple witnesses, especially after hearing Sarah testify because she was incredible, she provided detailed analysis of what she saw. And after hearing from those witnesses who, as Alana said, had no skin in the game, they probably looked at him with a little bit of reservation about his credibility. And that's what we are trying to accomplish is making sure that they saw through some of his points and we had a lot of deposition testimony that we felt was favorable for us. And so Alana did a great job at cross-examining him, bringing out those inconsistent statements and highlighting the differences between what his testimony was and what others had said already.

Wow, that's fascinating. So they give your client 30% comparative. Did the defendant accept any responsibility on the stand or was it zero?

Zero.

Wow. Now what was the rest of the award? So we heard 500,000 plus in economics. Was there an impairment award?

I think they put it in pain and suffering. They put 300. Yeah, I don't

Think that was impairment, which is

Frustrating, which was interesting because we made the argument that this addiction issue left him permanently impaired. And our addiction expert, Dr. Scott Humphreys, did an amazing job with his opinions, his report, his testimony at explaining that Harrison has a 90% relapse rate and that most likely he's going to require this type of care, this type of care, and this type of care. And I think that that was powerful.

So was your addiction specialist local in Colorado or did you have to go out of state for that

Local,

So you have an addiction specialist that comes in and am I correct? Sort of says yes, your client became addicted to Oxy as a result of these surgeries and that's a lifelong condition with a high relapse rate, or what's sort of the nutshell testimony that the addiction specialist gave to the jury,

Alana?

Yeah, pretty much in a nutshell. So we had him really explain addiction and the difference between addiction and actual dependency. And we had him explain the physiological impact of addiction and how that affects your brain, how it affects your body, what happens when you're withdrawing, the real importance of titrating down and leaning off. And we needed him to talk about withdrawals as well because those two crashes were because of him. Subsequent crashes were because of him withdrawing. We wanted to take away this guy's withdrawing, he feels like crap and he gets in a car and drives for four hours. When I focus that with friends, I mean they're not going to like, he's driving around number one on oxys and number two at other times withdrawing. And so we had him talk about the mental acuity in a withdrawal and the dehydration and the physical impact of a withdrawal. So specifically the jaw breaking surgery crash. He was withdrawn for eight days. And so you have a sunshine day turn around and you're like, I feel great. I think I'm through it. And Harrison was there. So he felt great. He was in a responsible position to drive.

Sure.

So we had the specialist kind of talk about that. And then he also did give him a diagnosis of it was just addiction to opioids or addiction to pain medication, and that is an access, that's an ICD nine or ICD nine, I

Forget DSM five or whatever. So did I hear you say that you had the, because you foresight to know that the jurors are likely to have a problem with your client driving withdrawals, that you utilized your addiction specialist to diffuse that potential landmine that you foresaw coming down the road.

Yeah.

Wow. Brilliant. So talk to me a little bit about voir dire and Wanda. Am I correct that you did the voir dire? Yeah. First of all, how much time did you get?

25. 20.

25. Give you an extra five minutes. Great. Yeah. So I'm fascinated by voir dire. Do you have sort of a Nick Raleigh brutal honesty guy? Are you a mitnick pie person? What's your sort of philosophy on big picture, what you like to accomplish in voir dire, and then specifically what you did in this case?

So I love voir dire. Originally Jerry was like, I'm going to do voir dire. You can do opening. And as I was getting more and more and I was like, can you please do vore, please, I need to do this. This was

One week before trial.

Perfect, perfect.

So I absolutely love voir dire. I loved it from the first trial I ever did it. And I have to give props to Jim Gilbert. I don't know if you know who he is.

Of course.

So I did a trial by myself when I first moved to Colorado almost 10 years now, and it was a slip and fall at King Soopers with a drunk plaintiff. And he spent an entire day with me. How do I do voir dire and what do I need to do? And I would say that that session shaped my entire ability to do voir dire. I love it. Before we got on it, I said, I would love to be just like a voir dire consultant in, what do you ask? How do you approach it? But as far as Raleigh or Mitnick, I use both. I am very much, I do very to the T. Brutal honesty. I get out, first thing I always say to them is that I get 20 minutes and I kind of make a joke of the judge and then make them promise to talk to me and then have 'em raise their hand, do all that.

Then I do the brutal honesty. I ask them what brutal honesty means to them, and then I do the pie contest. So I explain all that really quickly in about a minute, two minutes. And then what I do on voir dire is I think of the really top bad things. So in our case, was addiction. The real deal? Drinking at lunch was another one. Motorcycles, Ducatis. I allow myself as much time as I really need on those because those are our biggest warts. And so when it came to addiction and pain meds, really, like who's familiar with the opioid crisis, I asked people if they've ever lost anybody or know anybody with addiction. And a lot of information came out with that. Sure. So yeah, I mean I think that I'm pretty good at getting people to talk to me. And so I really enjoy that and I try to make it as vulnerable as you possibly can.

It makes so much sense exactly the way you did it. Did you have any challenges for cause or did that not come up because of it being such an issue? Specific voir dire.

Yeah. Don't read a book judge a book by its cover. One guy, he was probably 30, looked like you or I had a good career. He raised his hand that he, oh, I also asked who smokes marijuana? He did that. And when it came to opioids and if people can get addicted, he was so hard. You should be able to stop yourself from taking medication or you should know that opioids can make you addicted and was very strong on that. He could not be fair on that.

Wow.

Yeah.

How was Judge Friesman on that? Did he grant your challenge for, cause

He did actually. He was pretty fair in voir dire. There was that one, and then there was two other ones that were very similar on one woman. Her husband was an addict, which caused basically the downfall of her life and her marriage. And she talked about it and she couldn't be there.

So yeah,

Alana does a really good job at following up with people too. It's not just that someone says, I'm not sure if I can be unbiased. It's like she gets the confirmation from them and Judge Vriesman really accepted those positions based off of Alana's technique and speaking to people. And so I think that that helped get, I think it was, what was it, about six people removed for Cause

Yeah, it was quite a bit, pretty much every trial because at uncomfortable, right, they're giving you enough for them, but it's like, I'm going to ask you more because I know this judge is going to try to rehab you and I'm going to do everything that he can't redo. And I know that that's taking up time, but it's super valuable.

As you were talking, I was curious, it sounds like you didn't have time to address any of the sort of bias against personal injury lawsuits or anything like that. Number one, am I correct that you didn't have time to do that and then in your case, given the specific issues that you had to address, was it, you know what, it's more important to hit these issue specific things with addiction, et cetera, than it is general feelings about personal injury lawsuits?

I think I usually do have it at the bottom of my list, that and big money. But I think if you're asking some of these people the questions in a way where it's like, okay, well we're going to be asking for you to award because of an addiction, you can kind of gather, do they like lawsuits in general? And then I could follow up and be like, okay, well you wouldn't award for this. What about if it was an orthopedic injury or something like that. So I try to tie it on a little bit to get enough information of their bias. But I think, so don't get me wrong, I do usually ask those questions. I think they're important, but I think you can get an idea of their biases through other more important things that could really break your case.

I wanted to ask you about opening. So Jerry, did you do the opening in the case?

I did.

What's your philosophy, if you've got one on how you approached opening, how'd you prepare?

I always prepare a PowerPoint presentation. I feel like it helps your understand things. And in this case, it took a while to get Collin to stipulate to some of the exhibits to the point where we actually sent out nine two affidavits for some banking records because we were trying to introduce them to help substantiate the lost wages. But what he did stipulate to, I include most of those. There's times when I will include snippets from a deposition. It's just with 20 minutes, you don't really have a lot of time. And so basically I provide an outline of what happened similar to what we started off with today. I tell them about what they're going to see and hear and the evidence that's going to be presented. And I kind of take more of a David Ball approach from that where I go through that outline and kind of highlight some of the difficulties, the issues that we have, the things we had to consider before coming to trial, and then kind of give a response to all of those. And so they already knew about these issues going into it because Alana brought them up during voir dire. And that was the point was that I'm not giving them something that they didn't already know. I'm giving them that information. So it enhances our credibility. And then I'm showing them why that issue is not really an issue for Harrison. And I think in this opening, did I say a number at the end, Alana, what I was going to be asking for?

I don't remember.

I feel like I might've said millions. I don't think I put an actual number and I kind of go back and forth on that. But in this case, I don't think I said an actual number. That's primarily because we didn't know what we were going to be asking for yet because we didn't know exactly what evidence would be heard and really how the jury would respond to not only the addiction issue, but there was some pretty significant lost wage issues too. As Alana said earlier,

I'm curious because I know David Ball talks about, well, we had to look into some certain things before we brought this lawsuit, and that always felt inauthentic for my voice. Do you have a way that you, maybe I can steal the way that you do it that would feel more genuine. It just feels so chintzy if I try to do it that way. How do you bring up these were we had to look at this and this is what we found before we came to you all?

I don't say it exactly like David Ball does, but I do bring it up in that way and I say something, I don't remember exactly how I said it. I was kind of on the spot when I was doing it. But basically there are some negative facts here. We want to give you those negative facts. We want to tell you why when you're looking at the evidence, they shouldn't actually lead you to whatever I say there. But I don't use those exact phrases that David Ball uses. I just use something different.

Yeah, it's fascinating. So once you get into trial, I'm hearing there are some pretty serious orthopedic injuries. Did the defense have, I'm sure they had a rule 35 doc to come in to say your client was fine, no permanent injuries. What were you guys dealing with from the defense side as far as experts are concerned?

Yes, they did. I cannot remember his name. Do you remember his name?

No,

That's good. He's so good. You can't remember his name. That's perfect.

He reminds me of the actor of the Hulk. What's his first name? Lou

Lou Freni. Lou Frig, yeah.

He's just like this big orthopedic talks like this. And honestly, he was a bit of a joke and maybe he's a good surgeon, but our client had a fracture that was so visible on this after all of his pins and plates and everything was in there that he has a chip on his ace tabula, which when you have an acid tabula and the ball and the socket, it's supposed to go smoothly. So you have this chip in this part, it's not going to go smooth. It's just going to crunch on that cartilage and break it away and break it away. And that leads to early arthritis. I mean, it's really a simple concept and he just would not agree that that is going to more likely lead to early arthritis than him or I is what he said. And I was like, this bananas, seriously, you're really going to just say that this guy doesn't have as serious like risk of arthritis or potential surgery or total hip replacement. And he fought that a lot. It was actually very frustrating to cross him. And basically the point of his I M E, really the report was not very robust at all. It was very three points was mostly that he couldn't impaired so he could do his job because Colin wasn't arguing the injury, he wasn't arguing. What happened was unreasonable. He was really hired to say that he could do his job.

So how many days total was the trial?

Four. Yeah, it went Monday through Thursday and probably shouldn't talk about this, but whatever. Al and I both had plans to leave town that Friday and Judge Riesman is in a different county on Friday. And our plan were actually to leave Friday afternoon. And so we anticipated being able to do closings Friday and we get to about two o'clock or one o'clock and we're done with the close of evidence. We talked about jury instructions and Judge Breman tells us we're going to close for the day and we're going to come back on Monday, so he's going to have the jury Monday. That's a plan anyway, so the jury's going to come back on Monday. But Colin also had to be out of town. He was flying to Washington. And so basically we talked and we're like, why don't we talk to the judge and see if we can just do closings this afternoon? And so by the time we got through a jury instruction, there's probably about three 15 or so we had some issues during closings with an objection that took about 15 minutes or 20 minutes. And then by the time the jury actually got the case, it was about 4:00 PM So they took around for about 30 minutes and then four days later had a return.

Wow. What's fascinating to me about that? Is it kind of, because you had a wonderful result on this case, and I've sort of an old wives tale that you don't want jurors going home for the weekend thinking about all the reasons why they should rule against your client, but it seems like at least it worked out for you all. Of course, we have no way of knowing, but do you have any thoughts on that?

I do actually. I think that it's possible that some of these jurors went to the area, went to the intersection, they all live in that area, some of them live close by. It's also possible that they were looking on Netflix and they saw some of these documentaries or these new series out that really highlights the issues with Oxy use. Wow. Al and I were talking about that prior to the trial, and then I happened to watch one of 'em that I hadn't watched after the trial. I mean, it struck close to home. Yeah, I don't know. I think it may have helped a little bit, but yeah, probably not fully. I mean, it was probably not something where if the jury came back on Friday, I don't know what they would've awarded really hard to say.

Interesting. Alana, what do you think in this particular case, you think it helped you all?

It's so hard to say. I mean, we did ask for a lot more, but ask for more and get what's probably right. I don't think it hurt. Their reactions in their read looked like You can kind of tell where people, I think.

Tell me a little bit about closing. You mentioned this 15 minute objection in closing. What was that about?

Oh, I forgot about

That. Yes. One of the issues that we ran into during the trial was Colin, he filed a motion to prohibit one of our experts from testifying Chris Reyes. He was a vocational expert, basically that there was no doctor that was going to testify that he had a disability or an impairment. And so Reyes was going to be testifying that he was unable to perform certain tasks that he would've otherwise been able to do. And we fought that. We had to do a hearing the Friday before trial, and we actually called Reyes to testify remotely because he lives in Las Vegas. And ultimately the judge ruled that Reyes couldn't testify. At the same time we had this issue with Kaiser. He was our economist where Matt Kaiser got sick and unfortunately he wasn't going to be able to make it a trial, and he almost lost all experts relating to lost wages.

But he pulled himself through and pulled himself together. And he actually appeared remotely from his home testified. But his testimony, I've seen him testify before, it was a lot different and concerning. But anyway, I get to closing and I used some of the same slides that I used during opening. I picked some of the slides that you actually sent me too, Keith, and kind regurgitating some of those and we're making the arguments. And when I get to the point of arguing about damages, I'm arguing about impairment and Colin objects. So we have to do a sidebar for, I think it was probably 15, 20 minutes. We went back and forth, talked more, and by the time I got back I only had about seven minutes left and the jury had already forgot what I was talking about. And two of the slides that I had prepared were sides of the judge ruled I couldn't talk about anymore. So it was somewhat of a challenge. I think the jury still paid attention and people that were there at the trial said that I was able to keep my composure. And I think I did, but I think it did impact how we presented that information to the jury and their understanding potentially

Fascinating. One of the questions that love about this result and you all working together is it sure, seems like you guys had a lot of fun with this, a trial that you think falls into the fun category or not so much?

Working with Alana, I've had the pleasure of trying five cases with her. We've worked on dozens of cases. One of the strengths that we have as a foundation for our relationship is she handles her responsibilities and I handle mine and I can trust in what she's doing. And that allows us to kind of focus on our tasks at hand while kind of building the case up and continue to work towards the end result. And I will say during the trial, any trial that we've had, it's always been enjoyable. It's enjoyable to present evidence and help the jury understand what your client's going through. But what happened more recently has kind of changed that a little bit. Harrison ended up passing away from Oxy about a month ago, so that made it a little bit difficult to deal with.

So sorry to hear about what happened with your client and sadly, such a predictable, my wife's brother passed the same way. And it is such a true epidemic that it's not surprising that one of the jurors is like, I don't think it's a problem. And then as soon as you do any research into it and you look into it at all and you have any understanding of what's going on, it really is just terrible. Alana, talk to us a little bit about the importance of trying cases with someone you get along with because there's a lot of pressure, it's a lot of stress, and a lot of times we all have big personalities and big egos finding that right person that you really gel with and can try cases with. What's it like with Jerry and how does that affect you and how you come into a trial like this?

Well, I don't think I've tried any other cases with anyone outside of my dad or Jerry. So in terms of being in trial with someone else, I don't know how that works. But what I do know is that just what Jerry said, we can trust each other. We know that the tasks we assign to ourselves are going to get done. I mean, Jerry and I shared office space. We've known each other for years. And I think just in general, the way that we work, our values and our jobs are very similar. So we align, we both get into, we do a eight 30 to five workday even though we own our own businesses and we don't have to do that, that's what we've always chosen. And we can sit in our office and grind those hours and then be outside of it and do our social lives.

So I think that in terms of time management tasks, values, like we align there. So it's just easy. I know that we can work well together. And trials certainly have been fun. I think when it comes to co-counseling, a do you do it from the start, do you do it just for trial? And those are all, I've done different things. And I think that unfortunately it's a trial and error. Something may not work and you're never going to try something or work with someone again. And that's just the sad reality of that. But yeah, like Jerry, I mean, we've had a lot of fun in our cases. I think our last trial may have been a little bit more lighthearted, even though the damages were really big and we got a great reward. There was a lot of things going on in that in trial negotiations and stuff like that, that was different.

But this one, like Jerry mentioned, I mean I am sitting right next to a client who has an a damage that is unlike any other client that I've represented in trial. We do orthopedic injuries, we do back injuries, we do brain injuries, but I've never sat next to someone who has an addiction and who happens to be sober at this very stressful time and we're asking him to be so vulnerable. I kept saying to him, are you okay? Is this triggering at all? You got to tell us to pull back or how are you? And he assured us that he was okay and he seemed okay. And who knows if this trial was stressful, an impact on why he went back to, I mean, it was only a couple weeks after that he passed away. And what I think is really interesting about this is how eye-opening it is that we have clients on pain medication all the time, and how much do we actually as lawyers think about, do we have a problem? Is my client addicted to medication? I'm not really looking at their prescription logs until I'm like, oh shit, I forgot to disclose those.

But it's a real thing. Almost everyone has prescribed medication after their traumatic incident, and this is the first time that it's actually been brought to our attention that that's a problem. And then the other part of that is how much do we know about our clients after our role is over? And if we had already dispersed the money, we may have never known that this happened. It's just kind of really eye-opening because the way I practice, and I've been really focusing on that more is, and you know this and you do it too, but just really getting to know who you are fighting for. And it's just like, how much more do we need to do for our clients? How much more do we need to know about them and care for them?

Well, it's obvious to anyone who's listening that that's what makes you both such great trial lawyers is that whole nick row human connection of caring. And I can see, and I know in talking to Jerry before about how this impacts what happened, it's just so devastating, and I am so sorry to both of you that this happened to your client after this hard fought battle to sort of have this devil in the room rear its head and take such a wonderful person. I'm sorry you all dealt with that, but congratulations on the verdict for, I don't know if that rings hollow at this point. It's kind of hard to sort of celebrate this great victory given what happened, but I personally want to congratulate you both on just an amazing result with very lots of headwinds against you factually from the bench. And even the jurisdiction can be pretty tough. So kudos, kudos to you both. If there's one thing that you both learned from this trial, what would that be? To put you on the spot, Jerry, what's the one thing you learned from this trial?

Kind of what Alana said, I'll echo this. Maybe take a more proactive role in not only communicating with clients that you've resolved their cases for, but actually making sure that everything's okay with them. It really was. It was profound to see how such a formidable adversary can impact someone's life in such a terrible way. I had to speak to Harrison's mother and it was heart wrenching. And so yeah, if anything, I would say continuing to develop those relationships even after the fact, even after we've resolved their cases, because you never know what they're going through after that.

Wow. Alana, what about you? What's one thing you take away from this case in this trial?

I'm going to go on a little lighter note is don't be afraid to be creative. I mean, a lot of other people would say, we're not doing this. Hip injury is good enough. I judged it, I questioned it, and I'm so glad that I didn't because that just, honestly, I think that makes a next level of creative thinkers and not afraid to take a risk and it builds confidence for sure.

Wow. Well, congratulations. I guess I do have one other question is you mentioned sort of negotiations. Were there any discussions about high low agreements or anything during trial or was this one of those cases where the decision to go was easy?

There were no high low offers in this case.

There was a good offer though.

500,000.

Okay. All right. Well that kudos to you and your clients for, I mean, those are tough facts. So kudos to you all on an absolutely amazing result, and I'm sure you guys are itching to get back in on the next one. So I want to thank you so much for coming on the program and sharing your knowledge, and I look forward to seeing you all soon and we will be back with another episode continuing to chat with Colorado trial lawyers so we can all get better at what we do. So thank you all for listening. Thanks everybody. Thanks Keith.

Thanks Keith.

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