Pedestrian versus car at an intersection—It’s he said, she said, unless you have the video footage. However, you may not get the tape that easily. Be prepared to put in the work to investigate.

In this episode of Colorado Trial Lawyer Connection, Keith Fuicelli is joined by attorneys Dan D’Angelo and Tyrone Glover who recently won an almost $3 million verdict in Denver District Court for their client who was hit in a crosswalk by a car and suffered a mild traumatic brain injury. 

Tune in as Dan and Tyrone talk about how they approached investigating the case, the importance of the vestibular component of a TBI case, and how to conduct voir dire to make sure you have the most receptive jury to hear your case.

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☑️ Dan D’Angelo | LinkedIn 

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☑️ Tyrone Glover | LinkedIn 

☑️ Tyrone Glover Law, LLC Website

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Episode Snapshot

• Getting to know Dan D’Angelo and Tyrone Glover
• Investigate early in the case or risk losing evidence
• Things that can be missed by doctors in a TBI case
• Using bad facts to your advantage in jury selection

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

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

Alright, welcome back everyone. I am Keith Fuicelli and we are here for another Colorado trial lawyer connection and I could not be more excited to have my good friend Dan D'Angelo and Tyrone Glover on to talk about an absolutely fantastic result they had involving a client with a traumatic brain injury. But before we dive in and talk about that case and what worked and what didn't, I'd like to get to know you both a little bit more. And Tyrone, I don't believe that I've had the pleasure of meeting you. So tell us a little bit about yourself and how it is you became a trial lawyer.

Yeah, so I was a public defender in the Denver trial office, so kind of cut my teeth doing criminal cases at the volume public defenders do. Tried everything from misdemeanors to homicides, high level felonies. And then when I got out in private practice I was doing criminal defense, but I always really had this itch to scratch and get in there and go on the offensive and seek out justice as opposed to always playing defense. So I started with some civil rights cases, but then I connected with Dan around PI because I really started to see just the injustices that folks were suffering on the end of these insurance companies that we all sort of think that we can trust and at the end of the day are always going to do right by us. But the same injustices I was seeing both with the police and with our criminal justice system, I was seeing at the hands of these corporations. And so that sort of gave me this itch to get into PI and Dan very graciously, I remember still sitting in his office years ago and he's given me all of these books and all of these resources and telling me about C T L A and we just started working up cases together. And it seems like the initial cases that all came through the door were these mild to moderate traumatic brain injury cases. So here we are.

Did you find, I'm curious, I think I know the answer, but I'm curious if my instinct is correct. Was the transition from public defender civil rights work to personal injury, was that easier or harder of a transition than you would've thought? So

Some things were harder and some things were easier. So the lead up to trial I think as a public defender is very familiar. You sort of jump in at pretrial when you're in criminal, but in civil and especially in pi, with the gathering of medical records and talking to your about the treatment they're doing and their different treatment options, that's something that we really don't do in criminal. And so sort of the building up of the case, the making sure you're instituting best practices in the lead up and then having a really artful way of getting through discovery is something that as a criminal practitioner I had to learn. But once we get through all of that and we're locked and loaded and we're getting ready for trial and we're talking about cross and voir dires and different sort of themes and theories felt right at home, but sort of getting there is the part that feels a little foreign.

And for anyone who's listening that's sort of interested in getting into the world of being a plaintiff's trial lawyer, would you highly recommend the route of the Public Defender's office first? I can tell you I'm a former prosecutor and I think if someone came to me, I would say public Defender's office all day long versus the prosecutor's office. And I'm just curious what your thoughts are on that.

I think, and it's interesting because the skillset of trying cases is one that I maybe only use a couple times a year, but it's one that I'm just so glad that I have it that I've done dozens of trials and high stakes trials. So just knowing that I've done that and I have it in my pocket and I know if we go into the deep water I'm prepared, that's just so invaluable. The thing that I liked about the Public Defender's Office is you don't get to choose your battles. They come to you, a file lands on your desk. If your client wants to exercise that constitutional right to go to trial, you're stuck with the facts. I've inherited cases where there's not been a defense for years and no one could figure out what the defense was going to be other than they didn't prove it.

And you just have to figure out how to lawyer. Whereas I think if you can always dismiss a case, if you can always figure out how to deal a case, sometimes you don't have to go through the mental gymnastics you do as a public defender when you're really getting the worst cases that I think we deal with as lawyers. I always use the phrase, my worst fact in my civil case is still 10 times better than my best fact in my public defender cases. So that's what you're dealing with and learning to still prevail under those circumstances. I dunno, I think it just makes you a good lawyer.

And one last question before we hear from Dan. Was there anything about working at the Public Defender's office and working those cases up for trial that taught you about the investigation needed to get your best case, whatever that case may look like at trial?

Absolutely. I mean, it's imperative because when a case lands on your desk, it's already been investigated and it's been investigated by some of the best investigative units. And especially if you're dealing with federal cases, you're dealing with the A T F, the F B I, the D E A, and then you're dealing with the various police departments they've been investigating. And if it's a serious case, sometimes for months or even years, they've got a headstart on you and you've got to figure out how to, within speedy trial of six months, essentially get caught up and find those angles or those areas that they haven't investigated the stuff that they've missed. Otherwise, I think at the end of the day, you don't have a shot because a good prosecutor is going to bring a case that's essentially teed up for a guilty verdict and they're going to use that leverage. And so you having to go back and really do detailed investigation and find out the stuff that they've missed is imperative for getting justice for your client. Oh,

That's great. And I've had the great fortune of knowing Dan DeAngelo for many, many years. And I guess I don't know the answer to this, but what led you into the world of plaintiff's trial work?

Great question. It's kind of a long road, and it would probably start back to when I was in undergrad in upstate New York, working for a small kind of boutique law firm. I worked with this great trial lawyer named Ray Water in Ithaca, New York where I went to undergrad and he kind of showed me the ropes. We did some criminal defense work, but a lot of the trial work that he did was also personal injury, some pretty traumatic severe injuries. And part of my job, which I was given the task of doing was kind of being this kind of jack of all trades. I thought I was a young kid, I knew computers and all this stuff. And initially that was kind of my thing, but I was really given the reins by Ray to be an investigator. I would go out and I would investigate cases.

I would go out and I would meet with the clients witnesses, I'd interview them. I would ask them anything that I thought was relevant and learned that way. I would go to intersections and I would be tape measuring out intersections and stuff for somebody who got a D U I and we're trying to figure out whether did the police do proper stop in the case. And I would go listen to hours and hours and hours of local municipal tapes because we had a client who was repeatedly getting shut down at public forums and she was like this person who would advocate strongly for her beliefs, but when it came time to the clock, they were always cutting this person off. So I had to record all that stuff and create charts and all this stuff. I would do investigations involving car crashes where we had this case where this was like when Fast and Furious was just coming out and some young kids were souping up their cars and going out and joy riding, and they led to a very serious injury and crash.

And so I learned about tread patterns on your car and how tires and how you shouldn't have different tires put on the car. So I kind of learned in this environment before I went to law school about personal injury and working up the case and trying to find the facts that help your case or maybe ultimately hurt your case. So that was really my first go at pi. And then I went off to law school and after I got out of law school, I clerked for a judge in Denver District Court, and then I did defense work. I did medical malpractice wasn't my thing. And I went and worked for some other law firm for a few years and then realized I went to law school, I wanted to work for myself, and I had some other friends who were for PI lawyers like yourself, and just started teaching myself PI work what was coming in the door.

And I just loved it because it kind of just harkened back to what I was doing in undergrad, helping people who are injured and getting them through this process. Because as much as what we do is such a legal courtroom oriented evidence and all this stuff, at the end of the day we have clients who are really seriously injured and they've never been through this before. They've never dealt with an insurance company before. They've never dealt with these serious injuries, understanding what they are, why aren't they getting better, what should they do, who should they see? Because a lot of times I see in my practice people are struggling. Their primary care physicians, they're busy, they're overworked, they're billing in 15 minute increments, they're not thinking about their case. So I just really enjoy that aspect of being kind of this quarterback who can help the client who's not been through this before and try to get them steered in the right direction so that ultimately they get better. And then hopefully that recovery from their injuries, that helps us. In our case, nobody wants a seriously permanently injured client. We all want 'em to get better. And I think that's ultimately what drives me is just a pure, simple helping people who are in a tough spot.

Great. And I wanted to talk a little bit about how you investigated cases, your history in looking into cases and how you came to have the case that we're here to talk about. So if you would give the listeners a little story about the case with the amazing result in to cut to the chase, we're talking about an almost $3 million verdict in Denver District Court on a mild traumatic brain injury. How'd the case come to you, you decide to take it? And was there any part of your investigation that proved to be critical?

Yeah, the case actually came to be through Tyrone. As Tyrone was saying at the beginning of the podcast, we started working on cases together. I did pi, we knew each other and had coffee a few times and just talked about cases and things and pi. And I remember the day it was yesterday, I'm sitting in my office in downtown Denver and I get a phone call from Tyrone. He says, Hey, I got this client who was hitting a crosswalk by a car and would you like to work on it with me? And so I do whatever lawyer does well, tell me a little bit about the case and what's going on. And so he told me and I'm like, wow, that intersection is four blocks from my office. Now whether the intersection is four blocks from my office or not, if it was 40 miles from my office, I would've gotten in the car and gone to the intersection.

I really try to put myself always in the environment of where this happened because it's easy for us to jump on the computer, just Google it and see what it looks like, but you're just not in the best position to observe everything. So I hang up the phone, I walk down the street four blocks from my office. I'm standing at the intersection, which it is in a very busy downtown Denver intersection, one and a half blocks from the Capitol. It's an area I'm very familiar with, and it's two one-way streets coming together. And I'm standing on the corner looking around and I see this building and it's got video cameras, and I see this gentleman walk around the corner and he's clearly a discussive security at Tire on. And I just strike up a conversation with him and I tell him who I am and ask him, Hey, I got a client who was seriously injured in this intersection and I see there's cameras shooting the intersection.

Can you show me the tape? And he was like, absolutely. He was so excited. He invited me immediately. I think he was so bored probably. He's like, come on in, I'll show you. I mean, he's showing me the inner workings, the back office, and he's sitting down at the desk and I'm like, this is awesome. This guy is super excited to help us. And we're sitting there and I'm like, okay, can't wait to see the tape. And he's like, oh, this video only shoots for 24 hours. We got to get it from offsite. So I said, okay, great. Who do I got to talk to? He gives me the name of the manager. I immediately contact the manager, tell 'em what's going on, and the manager says like, great, I'd love to help you out, but you have to send us a subpoena. Oh, okay.

So I'm like, shoot, we're for your litigation. We haven't even filed suit yet, but one of the circumstances in this case was is that our client was ticketed by this civil investigator who just showed up and took some what seemed to be a pretty poor investigation into the facts of what happened and took the driver's word that they were turning right on a green light when that wasn't the case. And tickets our client. So we had the traffic court case, and that's when I tell Tyrone like, Hey, I know who the property manager is, we need a subpoena. How do we do this? And he's like, great, we got the traffic court case. Let's just do it through that. Great. So we end up issuing the subpoena through the traffic court case and they lose. The property manager calls us up, and I gave this job to some associate at the building and they deleted the tape and we were just like, oh, no, I know doing this kind of work, what the defense is going to say, oh, it's your client's fault.

They're always going to come up with some excuse. And we really wanted to have the tape. We needed the tape. The video is worth a million words, throw almost 3 million words. So in this case, so we're going, oh man. So what do we do now? Well, Tyrone had a connection with this forensic computer firm that we then retained to go down and see because we know digital information. I don't think it's ever gone, right. It's just how hard is it to get it? So we ended up sending this forensic firm down to the building that housed this information, and luckily they were able to retrieve it. They were able to recover it. There was some issues with the beginning of the video given how I guess the data was maybe deleted or something. But we got the video ultimately in this case, and it turned the case completely 180 in our favor because I called up the adjuster from Chubb when I was introducing myself that we represented this client, and the first thing out of the adjuster's mouth was this snarky comment of, oh, you represent the lady who walked into the side of my insured's Range Rover, and you don't often get this kind of like, oh, is that how this is going to go?

You don't often get that little comeback opportunity. And I said, well, actually, I represent the woman who was hit by your insured's Range Rover. Their front bumper hit her and she didn't walk into the side of the vehicle and she was thrown into the adjacent sidewalk, and that's who I represent. So can I get your information so I can send you a letter of representation? And he's like, well, how do you know that she didn't walk into the side of his car? And I was like, well, the eye in the sky doesn't lie. And he's like, well, what do you mean? I said, well, we've got a video of the actual incident and you can just hear the air go out on of the room. The other side. He's like, oh, will you send that to me? Yeah, sure, no problem. Send it to you.

So the investigation part's great, right? It takes work. You do this stuff very early on in the case. And with that information, in my opinion, is probably the only reason, not the only reason, but the major reason why we were able to get the result that we got. Anytime you have, I think a disputed factual scenario of how this event happened, unless you have the tape, the jurors are going to be biased against the plaintiff. They are already. So we knew going in, we needed to build this case up as strong as we could to show that no, what this defendant said happened did not happen. And here's how we know, and you can watch the tape, ladies and gentlemen, because I read the cases where it's plaintiff or it's pedestrian versus car at an intersection, and I'm seeing jurors were like, let's just split it down the middle, 50 50. We weren't there. We didn't see it. And who knows what happened? And he said, she said, right, I knew that from the beginning it was going to be he said, she said, and without the tape, we were going to be in that spot of, they could just split it down the middle.

Let me ask you this, had you not gone to the intersection when you did, and if you had just sat back, waited for the police report and then gone through normal discovery, maybe a year later tried to get the tape, you think you would've gotten it? Or is it a direct result of you going when you did?

I think we would not have gotten it because you don't know what the policies and procedures are for these buildings that are running these tapes. Are they taping over them, leading them within 24 hours, 48 hours one month? And also, we didn't want to rely on the civil investigator who did this investigation because it was completely against our client. I mean, this guy, the civil investigator took said in the report that there was a witness, and that's why they ticketed our client. We found that witness and we talked to that witness, and this witness was coming out of a shop at the time it happened. Didn't even see it. The only thing they heard was screaming from our client, and then they walked up the block and appeared at the scene. They never witnessed it, but this civil investigator somehow interpreted it that this person coming out of the cupcake shop witnessed it and then took the defendant's word that they had a green light when the video clearly showed that they were taking a right on a red.

Wow. Fascinating, fascinating. Just to get to the case and the injuries. So either Tyrone or Dan, can you give us a little overview of the injuries to what your client suffered and what the defense had to say about those injuries heading into trial?

Yeah, maybe. How about Dan, you talk about the, I guess medically what's going on, and I can talk about how it's sort of manifesting for her over the years. And one of the things about this case is it went to trial roughly four years after the crash. So especially with a traumatic brain injury case, we got to see the ebb and the flow, the deterioration, the hard times, the escalation of symptoms every time we came close to the anniversary. So the picture we were able to paint for a jury by the time it went to trial, I just think was so thorough and really captured the struggles of our client because she had been struggling for years by the time we got to tell her story. But I think, yeah, Dan, if you want to take the intricacies of what was happening, and I can talk about how it's manifesting,

That sounds

Great. Yeah, and this is what's fun working with Tyre. I mean, Tyrone is just an amazing lawyer, but he really knows the trial stuff. And for me, I dive deep into the medicine I've done, Keith, you and I did a brain injury case together way back in the day, and so I've learned from other lawyers, but also the doctors, I try to just be a sponge and pick up as much as I can about brain. I don't focus in T B I, but that's what I like to do and that's what I find most interesting. So when we get these cases about brain injury, there are certain things that I look for that I'm not a medical doctor, I don't claim to be one. I tell my clients, look, I'm not a medical doctor. You need to be having these frank open conversations with your doctors and being that squeaky wheel of things aren't right.

What's going on with me? How do I get better? Those kinds of things because those doctors aren't thinking, what is the information that we need in this case for the litigation? They're thinking again, whatever they're doing during their day and how they run their practices. I don't try to guess, but I know doctors are very busy and I don't think doctors generally are big fans of being involved in PI cases. So you've got that to deal with too. So I know in A T B I case, generally the things I'm looking for that go missed by the doctors and vision and the vestibular system are very complicated areas that I'm still learning about. But I think the vestibular system component of A T B I case is huge. It sets you apart as a lawyer. If you are familiar with T B I, people generally understand, hit my head, T B I, what's on the MRIs, as we know, mild traumatic brain injury, generally there's no techno findings on imaging.

It's just not there. But there are other things that all, when you put this puzzle together of all these different things that are going on with people when they have suffered a mild traumatic brain injury starts to build upon each other and support the brain injury and how severe it's, we're trying to convey to a jury what is the impact on the individual cognitively, and it also manifests physically and emotionally with them. And so we have to tell this story and how do we do that? And so our client was having and is still having, she has chronic dizziness. And I know given my history with T B I cases, well dizziness is generally a component of a brain injury case. I'm always looking for the dizziness and I'm always looking for vision issues that generally goes missed by the client. They don't realize what's going on, and sometimes the practitioners are not looking for it.

And so having known that and been through that and in other cases really helped us with our client be like, look, we're not doctors, but we've been through this before our job. I want to help you get better. Of course. But I know in terms of your case, your treaters are the ones who are going to be coming in telling the jury what your injury is, how they figured it out, and is this permanent or not. And so getting the client to understand how important it is to be persistent, don't give up, right? It can get very frustrating for these people to go through this and could totally understand why a lot of them get frustrated and they just want to throw up their hands because they're not better. And it takes a lot of effort from the lawyers. We're also like counselors telling the client, look, it's not just you. This is not a pun. It's not all just in your head, right? There's something serious going on with you. Let

Me jump in and ask you a question. I know that you had the vestibular doctors testifying at trial. What did the defense have to say about the vestibular component of your case? And can you also speak that is objective evidence and the V N G response? I know that's something that came up in your trial. As I was reading the summary of what happened here, I was thinking, well, what did the defense neurologist say about the vestibular issues?

Yeah. Well, the defense neurologist basically just piggybacked on the neuropsychologist and the other doctors. Their neurologist was Dr. Eric Berg, and he's an old school doc. He's been around for a long time. Old dude came walking into the trial, very gingerly defense counsel had to move the podium out of the way for him, get in the trial, this's this big thing, and he comes walking in and had his whole notebook with him and plops down on the stand and he's got that in front of him and he looks the part. But at the end of the day, all their experts never saw her, never saw her examined her, nothing. It was all just, well, mild traumatic brain injury should have got better, and if it didn't get better, it's because there's other motivations. There's an emotional component that's not really what's going on. It's not really an organic brain injury.

It's something else that's manifested because she can't let go of this traumatic event. And geez, if she just had the proper treatment and got over this traumatic event, she'd be all better. One of the things in our case that we were able to find out about her symptoms is that because she had this chronic dizziness, and I've been through this kind of V N G thing before and knowing what that is and what it tests for and all that stuff's great because some objective information, the eyes are what the V N G is testing, and you can't fake that stuff because jurors, I think they're thinking every brain injury client is in there. I mean, unless you're drooling and have slurred speech and those kinds of things that people are familiar with from strokes, right? Oh, the brain injured plaintiff is just making it seem worse than it is. So we were like, aha, these kinds of tests that help support the brain injury, these objective tests, V N G, she had several tests that our physical therapists that she was referred to is a great vestibular physical therapist, weren't just some typical physical therapist who just works on orthopedic knee injuries and things like that. This PT she was seeing was very highly trained in injuries. And so we took time to have conversations with the treating physical therapist because our clients saw this physical therapist almost 80 times something like that over a,

And they testified at trial, the physical therapist on the vestibular piece,

This physical therapist did not end up testifying at trial. They moved away. We had a lot of different experts in the case, and I'll tell you why we didn't have this physical therapist testify at trial, and we had kind of one doctor come in because we had so many different treaters, we had a lot of treaters and we had a lot of treatment over, as Tyrone was saying, this case was four years almost to the day when we were in trial. And so our client had been treating over this long expansive period of time and we're always told right as trial lawyers, simplify, simplify, simplify. And so we took some advice actually from the judge, judge Buchanan, who didn't end up being the judge who was at trial. We had a great new judge who was appointed to the bench. Judge Luxon was the judge who ended up sitting for the trial because Judge Buchanan had retired. But at the beginning of our case in our case management conference, the judge was like, look, I see a lot of treatment. I see a lot of treaters, I see a lot of experts. I've seen a lot of these cases. You may want to consider getting a medical summary expert.

That's what you guys did. Didn't you use Dr. Reinhardt for that?

Right. We used David Reinhardt, who's a physical medicine rehab doctor. I like having the physical medicine rehab doctor kind of being this jack of all trades. They know a lot of stuff about the human body. They got a lot of experience with that. So they can talk about a lot of different things if you need them to. So I didn't come up with this on my own. I stole this from some other lawyer who did it this way too. And you could probably use different doctors for this, but we felt a physical medicine rehab doctor was best to come in and kind of do that, especially in a brain injury case with vestibular issues.

Great. I wanted to talk to Tyrone. I understand that you did voir dire. So I'm curious on a case like this, do you have any thoughts about what you were looking for hoping to accomplish in voir dire and what your sort of overall trial strategy was going into this case?

I feel like we had so many good facts in this case, good facts that were bad circumstances for our client. This crash completely changed the trajectory of her life for the worst, and we got to see over years how this vestibular injury manifested day in and day out. I come from, before I went to law school, I was a professional m m A fighter, and so I'm sort of familiar with T B I injuries and sports, and I think we all are when we think of boxers or football players, and that's what we think of commonly with T B I. And it was even difficult for me initially to conceptualize how an injury to your vestibular and one that we objectively proved would manifest and really change this woman's life forever. But we had four years of just seeing her deteriorate, seeing her struggle, constantly being nauseous, unable to cross streets, having to pay people just to walk her across the streets to get to work.

And this is this kind of badass woman that I think they even notably pointed out was very high up in her career and really had the world as her oyster ahead of her. And this completely changed it. And so the temptation to go in and lead with all of your good facts was really strong. But I took a note out of my training at the public defender's office all the way back to bootcamp and said, no, we need to make sure that all of the jurors who cannot accept or immediately turned off by your bad facts are no longer on your jury. Whether that's getting them off for cause because they can't follow some instruction given ultimately at the end of the case or getting them off via a peremptory. So really it was the exercise of sitting down and determining what are our worst facts, right?

Asking for a really big dollar amount. The fact that we are the plaintiffs in a personal injury suit. Sometimes folks come and they think they're going to be sitting on a criminal case or something in their mind that maybe matters more, but just fleshing out all of those biases. She's not sitting there in a wheelchair, she hasn't lost any limbs. This is going to be something that I think when you looked at some, even her deposition, which was just months ago, there were noticeable even physical changes from her injuries, but it wasn't the type of case where someone's going to be coming in, missing an arm or missing a leg, making sure that they would be open to and be able to award large damages under those circumstances. So it's what we call in the PDs office, running to the bummer, figuring out what are our worst facts leading with those, not trying to put rose colored glasses on and figuring out who is not going to be able to hear our case fairly and objectively. And then hopefully the folks who are left are the people who are open to all of our themes and theories, the injustices and injuries that our clients suffered, and that's our audience. And oftentimes I find you forget who your audience is about halfway through the trial, but then when a verdict comes down and you talk to 'em afterwards, you remember like, oh man, that's right. We did the work in voir dire to make sure we had the most receptive people to hear our case, and thank goodness for that.

Yeah, it was interesting as you're saying that I heard recently someone say under promise and overperform sort of back in the day, I always wanted the case to just get continually better as we went. So even to some degree in opening trying to undersell the case, and then as you're working through the case, it turns out like, oh man, it's really better than better and better. And I wonder if that's sort of what you're talking about with respect to voir dire or is that really targeted only towards voir dire and running to the really bad facts in voir dire?

I mean, it's both, right? So voir dire, you want to run to the really, really bad facts, don't try to paint them in the way that I would almost say like an inexperienced opposing counsel would. If they're going to oversell their defense, then essentially give the jury what their defense is going to be the way that they're going to paint your bad facts. And if the jurors are like, yeah, no, I don't think that's overreaching or, no, absolutely, I think that people can be sitting there and have invisible injuries and it's worth just as much compensation as something that we can see physically manifesting before our eyes. You get all of those people and that's your audience to start, and then you don't oversell an opening. And that's something that I've learned from being on the defense side in criminal cases, if a prosecutor would get up there and shoot for the moon and oversell this case, the first thing that I would do in closing at the end would be, remember when they promised you all of this evidence?

Women remember when they told you that people were going to come in and say all these things that did not happen? Let's talk about what actually happened at trial. Let's talk about, and I would even sit in the witness box what this witness came in and actually said. So yeah, don't oversell an opening sort of, you don't want to downplay as much as you do or run to the bummer like you do in closing. You just want to more sort of preview, get those jurors writing down an outline for the case. And then when you're presenting your evidence, they're there going in and filling in all of the relevant evidence under that outline. Give them a nice template to understand the case on your own terms because it's really, it all goes back to storytelling. And one of the first things I put up on my board when I'm getting ready for trial is that storytelling arc, right? Setting the stage for the location, your cast of characters.

This was the cool part. Having not done the amount of trial work that Tyrone has done, I really got to see the amazing work that goes into this kind of how do you tell the story and framing it and putting it together, which Tyrone's just kind of a master at. So that was a lot of fun with the, and I remember sitting there, we're drawn up on the whiteboards, our story arc, and where does this witness fit in to? We want to make sure we had witnesses for each part of our story arc.

Sure,

Yeah. And so that was a lot of trial prep, what we were doing, weeding out the do we need this witness or not, how many lay witnesses do we need? I think, well, we only had three late witnesses, Tyrone.

Yeah, I was going to ask you as we were talking about late witnesses, because Tyrone had mentioned that this had gone on for four years and you guys saw the client struggling. So I'd love to hear your thoughts on how you went about choosing the witnesses, finding to tell the story of what your client was actually experiencing over all those years.

I think that we had this case right before a three day weekend, and then when I looked at just how many witnesses we needed, the must call folks, I sort of felt like the jury, we need a verdict by the end of the week. We don't want our jury feeling like they're going to go home, they need to be thinking about this case. They need to reconvene on that Tuesday. So I really felt like after we started off, we didn't over promise and there was a nice ascent of our evidence and we were proving up the injury that we really only needed to call one witness for each proposition we were trying to prove. And if we started to pile on cumulative witnesses, we're already the party that's bringing folks here by virtue of filing the case, if we started to waste their time by calling a bunch of witnesses that stood for all the same propositions, I think they were going to get pretty upset with us. And I think we felt pretty confident after certain witnesses testified and after we were three days or so into trial that the jury was going to be ready for the case. So that even meant just tightening up our crosses, getting our lay witnesses on and off, and just making it really clear once we close our evidence that we were trying to get this case to the jury so that they could deliberate.

So how did you go about deciding which lay witnesses and did each one of you talked before we kind of cut out about this story arc? So would you explain to me a little bit what is the story arc and how do the lay witnesses play into the story arc?

And you can google it online, but it looks sort of almost like a little bit of a bell curve. And at the bottom of the curve, the sort of flat area is essentially your witnesses, your locations, all of the foundational things you need to tell the story, you want to introduce those very early on so you orient your audience to just what you're talking about. And then there's the rising action. And Keith, we were sort of talking about how you don't want to necessarily come right out of the gate and give them everything in opening. That's because you want this sort of rising action to build up to what is the climax, which is sort of the injury and the results and sort of outgrowth of that injury. And then the falling action is how all of that is manifesting. And I think those lay witnesses fall on can arguably kind of fall on both sides.

We had two that fell on both sides, the ones that could sort of talk about our client before and our client after one that could really talk about our client professionally. She was sort junior to our client and can just talk about how much of a badass she was before the accident, almost sort of in awe of our client. And then sort of talk about where she was after we had someone that knew her more personally and could sort of talk about those changes. And then we had someone that didn't really know her, but whose reputation preceded our client and someone that just knew her strictly professionally and had a lot of, I think sort of credit in the bank to just be able to talk about how it professionally has manifested and this person he was expecting to work with and then ultimately seeing how she deteriorated over the years. And then thinking about those buckets, we felt as though anyone else that we called for that proposition would've been cumulative. And the people that we had were really solid. So we tried to keep one witness per one thing. We needed to argue in closing and just ran a real tight ship and fit it all into the narrative appropriately.

So. Great. So first question is how old was your client at the time of trial? And ties into the second question, which is how did you frame your damages model? What did you all ask for and how did you all come up with that number?

So our client literally turned 60 years old five days or four days or something before trial. So she is at the pinnacle of her career. This is part of what we had to deal with in the damages and in the case was our client has suffered this injury, it's very high level government employee in the leadership, executive leadership role and is still doing that job. And so this was something we had to deal with at trial is that she has this serious permanent injury to her brain, to her body. It affects her in these different ways and limits her, but she's still working. And so part of our theme in presenting the damages is this loss of, I really like to use loss of earning capacity. I mean I pleaded, I don't know about other lawyers and how they do it necessarily, but I've always in a brain injury case, it's loss of earning capacity and what that is.

And so we had an expert that we got because our client and given the role she was in, had this plan that after a certain period of time in the administration she was in, she was going to leave and go private and double her salary and double dip is what they call it, where as a government public employee, they're going to accept their public retirement benefits and then go work private in the industry that they've been regulating. And they are experts in the defense expert agreed with us on this. And the defense ended up not calling that expert at trial, but agreed that this was a loss for her that this plan of working in public service for 30 years earning less, but having the experience that she does have that she would then go on and have this really kind of second act to her professional career and put kind of a capstone on it.

And we had hired a vocational rehab expert to do the analysis to look at the market and see what could our client go out and earn had they not been injured and was able to obtain this second career path that she was clearly qualified for. And the defense agreed with, the defense expert agreed. They didn't say that at trial, but the defense expert agreed with it in their report. And part of the beauty of some of our lay witnesses is that one of those individuals or two of 'em actually did this and went on newer from before and the after, yeah, I've done this right, did the double dip you're talking about. Yeah. And it was a regulator of industry and then goes on and then works on the other side of the fence and that this is a common thing in the industry to happen. And so given our client's injuries and the limitations that they had, travel was a big part of it. Traveling the world in this industry was no longer possible for our client and that was a major loss. That was one of our big damages buckets was the loss of marine because she was still working and earning a salary. Now she was working out of I think some of the good graces of her wonderful boss and a very understanding strong support staff that she had below her.

So you guys are able to sort of board this future economic loss of earning capacity, claim past economics. So how much money are we talking about in terms of economic damages and what was the ultimate award on that? And I'd love to hear your thoughts on how you argued impairment, brain injury, piece of that.

So we had struggled for a long time. We didn't want to do this, alright, we're going to ask for the moon and we could come up with any scenario of calculations that would lead to a eight figure dollar figure kind of thing. And we knew that that was going to be an ask that was probably too big. Rather like you were talking about before, we want to undersell this and then have the jury say, alright, we're going to be going for something in the middle here. We're going to give you some ranges. Here's how we came up with these ranges. We're going to go with something in the middle, present it to you and hope that the jury then appreciates the work that we put into it, the presentation and then says, all right, but we're going to get more. And so in terms of the economic damages, we had a future life care plan that we had an expert come in and do an in-home assessment for our client and rely on some of the treating physicians and some other experts to say, what are the physical impairments?

How are those going to manifest for this client over the course of her life and what do they need for an in-home kind of care? So we had that damages bucket economically, which ended up being somewhere in the neighborhood of 600,000 or something like that from what I remember. And then we had the loss of earning capacity damages bucket that we had calculated out through our vocational rehab expert where we said, okay, look, can you go out into the industry, into the marketplace and see what is it that our client could earn so you have something to base your opinion on and give us some numbers. And so our client, our vocational expert, went out into the industry, did a market analysis, found resources that are reliable in the industry. Our client was a former lawyer so they could go out and look at these resources to see what, yeah, so for the economic damages we had the loss of earning capacity and we had our expert testify about how they came up with the salary that our client could earn had they gone off and gone on the other side of the fence and gone into the private sector.

And so then we had an economics expert come in and crunch those numbers and come up with the retirement benefits. They lost social security bunch of numbers and put it all in a package for the jury to hear and give a range. I think at the top end of our range, we were at like 4 million something and we did not feel so comfortable that the jury heard these numbers from our experts in how they calculated them and gave a rank, I think the bottom end of the range for earning capacity, what we valued that at. And the defense fought us really hard on this loss of earning capacity and tried to recategorize it as not an economic damage damage but something related to physical impairment. And they lost on that issue. That's strange at trial, but I'm not sure that it really mattered. But anyway, they had a philosophical difference at that.

So we had a range of, I think 1 million to 4 million for economics for a loss of earning capacity evaluation. And so ultimately the jury came back, they assigned some fault to our client because the testimony at trial, we also had this issue of did they cross on a flashing hand or just did they have the walk sign? And so both plaintiff and defense experts typically or pretty much agreed with this notion that she started crossing on a flashing hand. So the jurors did sign some comparative fault, but we got an economic award of one and a half million. Great. We got a award of 1 million for physical impairment and then for the non-economic damages, basically what we did, knowing that there's a cap out there, we didn't want to oversell again to the jurors and be like, non-economic damages award this huge, huge number based off of this person's 60.

They're going to lift to 85, give a hundred dollars a day kind of a thing for non economics. And then you have this huge number and then we get knocked down. The other reason we didn't want to do that is because sometimes jurors get confused with this noneconomic damages versus the physical impairment. And sometimes they're like, well, we gave all this money for damages, so we're going to not give as much in physical impairment as lawyers, we know the physical impairment section is not capped, right? That's the bucket we want jurors toward the most in, right? So we were worried we go for some big non-economic number, they would give us less in physical impairment. So we went very conservative there and calculated out a number for the jurors that basically was right around the cap. And I think we got 474,000 or something for non-economic damages, which is nothing given what our injuries are. But knowing that there's a cap that would've knocked us down to 4 68, it's not a big change for us. And we wanted to make sure physical impairment was our big bucket that we want the jury to award the most in.

And who handled first close and second close, or did you split that up or did one person do that?

I did both.

And how did you, I've heard some people sometimes say with the non-economic damage number, we don't want a penny more than this. Was there a way you sort of telegraphed that's not what this case is about? This case is about the impairment bucket. I think all of us that are out trying these cases, we're constantly trying to figure out how do you get the jurors to put the money in the impairment bucket and not the noneconomic damage bucket. And it seems like you threaded the needle perfectly on this case.

The analysis on non economics was I think, less detailed. There was less time during my closing that I spent on it, and then I just took page out of primacy and recency. So the first thing I talked about was economics. The last thing I talked about was permanent impairment and non economics was somewhere in the middle, right? Primacy, the economics, that's important. Recency the last thing they're going to hear a very detailed enumerated calculation for how we get to permanent impairment. And then permanent impairment was the crux in the cornerstone of this case. So that's what I hit really hard and rebuttal as well. So I think sending a message to the jury without saying, I don't want to pin more, but just sending that message that permanent impairment is really, really important. And that's ultimately what this case is about. It's the loss of the ability and the freedom and the capacity to live her life as she saw fit and earned over a career of public service and having to live with a permanent injury that's going to be debilitating and affect the quality of her life in perpetuity. Those are the two big buckets. And just really emphasizing them, spending time and talking about one first and one last I think is how we highlighted it.

Wow, what an amazing result and what a feel good story when you think about the difference that you made in your client's life. So kudos. I was thinking to myself, did the defense suggest any numbers in closing? What did they think the jurors should award?

Nothing. Zero.

Because they were just going straight. Defense verdict.

Yeah, they said she was 50% at fault. She'll get nothing. And again, I think that that was a big swing, that was a big overreach. I mean that this idea that based on all the evidence we'd heard throughout the week, she should walk away with nothing based on these sort of pontifications from their experts who reviewed stacks of records and came up with what if scenarios they were comfortable with this jury awarding her nothing. When I think the evidence just supported something, I think maybe if they had not tried to hit that home run, I don't know if we'd be in a different position, but I don't know if it would've been how I would've played it if I was on their side of the fence.

And I think the last question is, did you spend any time in closing or how much time talking about Colorado's modified comparative fault, making sure that the jurors sort of understood 50% is zero?

Yes, absolutely. I spend a lot of time on that and really pointed out, maybe not a lot of time, but it was a pause. We had a great picture of her before the accident, sort of transpose with her four years later after she's deteriorated and just really emphasizing that after all is said and done, they're okay with her walking out of here with nothing. And that's what they're asking you to do. And that's if you go 50 50, that is what will happen. And just really pausing, letting that sink in. And I don't know, I think that it was powerful. It felt powerful. When we were during closing,

I think Tyrone did a really nice job too with the PowerPoint slides that were part of that as not talking down to the jurors but showing them this is how you fill out the verdict form and here's in red, here's the areas and what we want you to put in here. And there is that one section in the verdict form that shows the percentage of fault that you're assigning to each one, one of the parties. And I thought it was ironic that the defense the whole time is saying, plaintiff is overreaching. Plaintiff is overreaching. That's what their whole case was. Every time we were like, no, here's our range. We're in the middle. And then they're like, no, give 'em a big fat zero.

I think the psychology world, that's called projection. Right. Well, Tyrone, what I wanted to say is you mentioned pausing and I feel like the pregnant pause and trial is just the most weapon. And just letting it sit there almost to the point where it becomes uncomfortable can just picture you doing that with, they want her to walk out of here with nothing amazing results. And when I read this result, I was just so, so happy. And I want to sincerely thank you for taking time out of your very busy lives to chat with us about the case. So you have inspired me. I feel great about getting in front of Judge Luxon, which I had had some concerns about, but now I am very, very excited about. And overall, just congratulations to you both. So thank you both for coming on the show and we look forward to chatting with you again soon.

Thanks, Keith.

Thanks Keith. Pleasure to be on.

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