"If you've got bad facts, you gotta be the first one to talk about them," says Colin McIver of Tenge Law Firm, explaining how he handled his client's month-long gap in treatment. The approach helped him secure a $2.8 million verdict for a man who slipped on thick ice hidden beneath snow on an HOA-controlled sidewalk. Joining host Keith Fuicelli in this episode of Colorado Trial Lawyer Connection, Colin reveals how discovery uncovered evidence of prior complaints even after the HOA destroyed records and how a half-day focus group changed his trial strategy. Tune in for practical lessons on testing and trying tough premises liability cases.

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Episode Snapshot

• Colin swore he'd never follow his trial attorney parents into the profession, but he changed his mind after helping his dad with a case.
• Instead of addressing bad facts in a separate section, Colin weaves them into the story of what happened in chronological order.
• Should the corporate representative deposition come first or last? Colin makes that call case by case, sometimes using it to find out what else he needs and other times saving it until he has all the information.
• Even after the HOA destroyed its records of prior homeowner complaints, Colin found another way to prove notice.
• The key to liability was framing the dangerous condition as allowing the ice to persist for 17 days after the last big snowstorm — not the snow Colin’s client chose to walk on.
• A half-day Zoom focus group showed that suspicions of a vendetta against the HOA disappeared once jurors heard about the severity of the client's injury, leading Colin to reorder his case.
• Borrowing a cross-examination technique from Keith Mitnik, Colin cornered a defense IME doctor who testifies for the defense almost exclusively.
• Trying a case before Judge Figa? Colin shares the courtroom move that jurors personally thanked him 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.

Welcome back everyone.

It's Keith Fuicelli here for another episode of the Colorado Trial Lawyer

Connection Podcast, and I feel like it's been a minute,

so I'm excited to be back in the saddle, if you will.

Super excited to have Colin McIver on to talk about an absolutely

phenomenal premises liability case verdict that he obtained

in Arapahoe County. And I'm sort of excited because we're in new studio,

if you will,

a new location here and dealt with a little bit of hiccups on that front,

but excited to be here. Excited to have Colin on the show. And with that,

welcome Colin.

Thank you, Keith. Excited to be here. Thanks for having me.

All right.

One thing that I like to do before we kind of jump into the facts of this case

is tell us a little bit about yourself and how it is you came to be a

plaintiff's trial lawyer.

Yeah, a bit of an interesting background.

So both my parents were trial attorneys. I'm a bit stubborn,

so I decided I'm never going to do that. I'm going to do my own thing.

You can see how that ended up.

So I eventually decided to go to law school once I helped my dad with a case.

I was a little bit older when I went, later 20s,

and I helped my dad with the case and realized this is a really good way to help

people who have no idea how this legal process works and to make a good living

doing it. Went to law school at CU Boulder.

My first semester I did mock trial and that was it. I was hooked.

All right. I love that. So I'm also Buff Law School,

so always love to have Buffalo on the show.

So if both your parents were trial lawyers, is that here in Colorado?

No, that was in Texas. So I'm originally from middle of nowhere, Texas.

Ended up coming here for law school after Minnesota for undergrad.

Okay. And then, so you said late 20s, go to law school.

Tell us a little bit about your journey out of law school and what led you where

you are now.

Yeah, out of law school, I knew I wanted to litigate.

I wasn't particularly interested in criminal. I'd considered it,

but I knew that personal injury was an area where if you're going to be in the

civil side and you're going to try to litigate, it's a good place to be.

So I went to Zinda Law Firm because they're both Texas and Colorado.

I'm now licensed in both, so I like the idea of that.

I then switched over to Zaner Harden Law for three and a half years or so

working with Mark and Kurt over there.

And then I eventually ended up at Tenge Law because I wanted to move to the

first chair position and really start getting more cases as a first chair.

Yeah, it's a great firm. So how long have you been at Tenge Law Firm?

Just over two years now.

And so there you're able to run first chair and really take the

lead on litigating cases. Is that what I'm hearing?

Exactly. Yeah.

So I get to first chair and basically handle cases from sign up to trial,

get to work on some bigger cases, things like that. Yeah.

Well, this seems like a pretty big case. And I think with that introduction,

let's talk a little bit about this case and the amazing result that you

obtained.

So start out and just give us the little rundown of the facts of this case.

So my client, he's in his 50s, walking in his neighborhood, walking his dog.

He's walking on the sidewalk in an area where there's an ADA accessible ramp.

So American with Disability Act,

it has to be made to certain specifications to be safe for everybody to use.

But this ramp had a problem, which is it sits lower than the area around it.

And so each winter when it gets warmer in the day and some of that snow melts,

the water's pooling in this lower area and then at night it's freezing and it's

forming incredibly thick layers of ice and then snow will come and actually lay

on top of it. So it looks like it's just a level sidewalk with snow,

but really it's incredibly thick ice. So he sees the snow,

he goes to walk on it. He actually walks about 10 yards or so without problem,

but he gets to the area where this ramp and all this ice is. He slips and does

the splits and tries to catch himself, actually does the splits again,

incredibly painful sounding, doesn't actually fall to the ground,

manages to catch himself,

then walks a little ways over to a dog bag and trash can nearby,

stands there for a while trying to take stock of what's happened.

Definitely felt a pop when all this happened as well.

Eventually walks home because he's only a few blocks away,

but suffers some pretty significant injuries.

First treatment is about a month later and then that's kind of the start of a

very long course of treatment.

So that month gap upfront,

because I know a little bit about the case from reading the review,

end up with some pretty serious injuries.

Was that month gap an issue at all or no?

Of course.

One of the things they kept saying is if he's this hurt and he's got this much

in damages and injuries, well gosh,

he should have been in the emergency room and an ambulance and all these things.

So yeah,

it's something we had to deal with right up front of this is a gentleman that he

doesn't want to go to an ambulance and have an ER bill right away.

He's hoping he gets better, especially in the first few weeks.

I want to know how you address that month gap in your opening and did you

know from focus groups or it seems like maybe common sense plaintiff trial work

101, you got a month gap, you know you need to deal with it.

And I know from speaking with you that you first chaired this case,

meaning voir dire opening closings.

Did you address that month gap in opening and if so, how'd you do it?

Of course.

One of the lessons that I've certainly learned is if you've got bad facts,

you gotta be the first one to talk about them. And the way I like to do that,

I'm a big fan of Jim Perdue and storytelling. And so we tell it as a story.

So we're walking through what happened.

We walk through what he's going through that day, how painful it is.

We walk through the decision.

He decides not to get an ambulance and go to the ER.

He doesn't want to have those bills because they're incredibly expensive,

just as this is a guy that tries to tough things out and he does actually make

an appointment pretty recently after the incident.

It's just he doesn't get in until later because he wants to see an orthopedist

that his family had used in the past.

And so that's what he wants to see. And we tell that as a part of the story -

walking through what he's going through,

the decision-making - just so it fits a very clear narrative.

Yeah, I love that.

Did you do that sort of in the natural chronology of what occurred?

In other words,

talk about whatever bad facts you had leading up to it about knowledge and other

things,

talk about what happened and then naturally flow into this piece of your client?

Yeah, it's all part of the story.

So there's not like I don't jump to a section where I talk about,

these are all the bad facts for us I'm going to go through now.

I think it's more effective when you do it in that chronological order in a way

that makes sense. So now the jury's hearing it,

but they're hearing it in context because that's where the defense wins is -

they take things out of context and they hold them up.

And I talked about that happening in opening as well and watching out for that.

And so it was all part of that natural story of taking it chronologically

through what happened.

Love it, love it, love it.

So let's completely violating what we just said about natural progression of

what occurred.

Now I want to go back a little bit to the beginning and first I have a couple

questions about some of the facts.

So did this happen in a common area of HOA controlled community?

So that was part of the fight.

It happened on a sidewalk next to a park owned by the Homeowner's Association.

During depositions, they actually said that they controlled it.

I believe they even said that they owned it.

What happened at trial was they tried to turn around and say, oh no, no,

the city owns it. We're actually not responsible for it.

So that was a big part of the fight that we had.

Okay.

The reason I'm going a little bit deep on this is we do have a case in front of

the Colorado Supreme Court right now on this very issue,

which is an HOA controlled community and the standard that governs for

the common areas and whatnot.

Was it covered in their controlling documents who sort of owned and

controlled this space?

Seems odd that there would be an actual dispute as whether the city owned it or

the HOA owned it. And I guess in the end,

did the HOA agree to maintain it?

So that was a big part of their argument was that based on the controlling

documents, they had authority to maintain it,

but not a responsibility to maintain it.

So kind of an interesting clause in that contract.

Our argument of course is doesn't matter whether you own it, you controlled it,

you assume the duty of it, it's your responsibility.

And so was any issue as to invitee licensee status of

your client on the common area, I'm assuming invitee,

based upon payment dues to the HOA, and is that how that went?

Absolutely right. He paid his dues for, I think it was 27 years at that point.

They didn't fight us at all on that piece.

So your client's an invitee and then you have this odd argument that they didn't

have an obligation to maintain that area.

Was that something that the court ruled on as a matter of law before trial,

I'm assuming?

Yeah. So the court ruled on landowner status for all three defendants,

but it was actually after the closing of evidence.

So before we sent jury instructions back with the jury and found that they were

all landowners.

Okay. And as landowners that had control of the property,

they had the duty to maintain it so you were able to avoid this legal

landmine, if you will, because I always worry about things like this.

Is the jury going to get all confused on this? That issue,

the jury had all that they were focused on was whether or not the homeowner's

association took reasonable care to take care of a dangerous condition they knew

or should have known about. Is that how it all played out?

Exactly right. We had the judge make the determination.

We had pled negligence in the alternative just in case,

but by the time it got to the jury, the landowner was already established.

So all they had to decide were those key issues.

All right.

Talk to our listeners a little bit about discovery plan that you had and how

you were able to get information to use to prove your case in closing.

Yeah, so we certainly did written discovery. It's a big part of every case.

Sometimes it's effective, sometimes it's not, as I'm sure you're well aware of.

But then we followed that up with a 30(b)(6) and that's a decision I make in

every case is: Are we going to send written discovery before depositions, after?

How are we going to do it? In this case,

I wanted it before because I wanted to be able to ask them about things that I

had requested. And so of course in cases like this,

the absolute key issue, did they have notice?

So we had to figure that piece out. So we sent written discovery,

we requested all communications, emails,

pretty much everything under the sun that could be relevant to make sure we had

anything dealing with prior notice. Once we had those responses,

we set up depositions.

We took the 30(b)(6) of the corporate representative for the HOA as well as the

deposition of the prior president of the HOA who was still a board member at the

time. So we did both of those. And then of course at those depositions,

we're going through those same things. What documents do you have?

Has this been reported? How does it get reported? How is that saved?

Where do you file it? Who maintains that?

So just nailing down everything we can to figure out what documents are out

there that we could use to show notice.

So I want to pause on that a little bit because that feels like something that

maybe sometimes we overlook more than we should.

The idea of really establishing how the information comes

in, how it's saved,

and additional potential depositions that you might need to take down the

road. I'm just thinking about Mark Kosieradzki's book on 30(b)(6).

It feels like the whole entire book is premised upon doing this first deposition

to figure out how to get all the information you need for the ultimate 30(b)(6)

deposition. And I guess,

is that something that you did here by taking the individual

depositions of people like the board president,

you get this information,

so then you feel like you're able to notice a 30(b)(6)

deposition that would encompass all of the documents in their locations now

that you have an idea of how that information comes in.

Talk us through a little bit your thought process in that regard.

Yeah, the goal certainly is to figure out what's out there and how do we get it.

And it seems to be an issue in PLA cases especially.

So part of the process here,

I believe we actually took the 30(b)(6) before the other prior president

because it was through the 30(b)(6) we found out, okay,

we need to go to depose the prior president.

So part of the 30(b)(6) is figuring out what's out there, how can we get it?

Sometimes I'll take a little bit of a different approach of using the 30(b)(6)

as a tool to figure out what else I need.

Other times there's times where I'll take 30(b)(6) last because I want all the

information upfront and then I hit them with it at the 30(b)(6).

So it's a conscious decision that's made during the case,

which approach do we think is going to be more effective here?

So what did you find out throughout your discovery about how prior complaints

come in in our state?

And I guess I'm hoping that you can speak to our listeners in a big picture

general sense of when you are say an HOA

or a property management company,

someone that has management control over common areas,

how should they be saving complaints when they come in and what did you

find in your case?

So generally speaking,

if they believe there's a reasonable likelihood of litigation,

they're supposed to be saving all these documents that could be relevant.

Here what we figured out was,

and it's actually part of the contract with the property management group,

they're supposed to be saving them for about three years and then they're

supposed to be saving them basically indefinitely if they find out there's a

potential claim or a potential lawsuit down the road. And in our case,

they knew right away because the incident was reported within a month.

That was reported to,

I believe even the attorneys for the HOA and the property manager,

if I'm remembering correctly, was copied on those emails.

So they knew right away.

And what happened in our case is we found out they're supposed to be saving

these complaints they receive along with other documents they received from

homeowners, at least three years. They found out there was an incident,

so they knew they were supposed to be saving it indefinitely.

What happened is they ended up destroying all the prior homeowner complaints.

The reason they gave was they had a server containing all these documents,

not just those, but other ones related to the HOA.

The person who maintained that passed away.

They tried to recover documents from it,

but were not able to get the homeowner's complaints, the prior ones,

and so they just destroyed the server.

So that was kind of an interesting issue in our case.

The good news for us is there was an email between the property manager

and the HOA discussing ice and snow at this location saying,

"We're receiving complaints," plural, so we were able to get up and show.

They were receiving them. We'll never know how many or how bad,

but we know they're getting.

When in proximity to your client's fall,

do you remember how close it was that they were told that we are getting

complaints of snow and ice in this area as it related to the timing of your

client's fall?

So that particular email was about a year before,

so it was the previous winter when there was that email exchange about prior

homeowner complaints.

Okay. And talk to our listeners a little bit about,

because I know you and I spoke about it sort of off air,

about the particular design here and why it was that this area was sort of

prone to the accumulation of ice.

There were a couple factors that were a real issue.

One is the sidewalk sits lower than the area around it.

So snow melts during the day when it gets warm, as it always does in Colorado,

freezes at night,

and then it's happening over and over and over again over days and weeks.

So it's forming really thick ice in this area.

It's also on the northern side of some trees, like a tree line basically,

so that it's shaded as well.

So we're seeing snow and ice that's lasting days and weeks,

and even the snow and ice folks, the removal folks admitted, yeah,

this is the kind of situation where you could have that for days and weeks.

So is it an engineering problem, maintenance problem,

or kind of combination of the both? I guess I'm wondering,

is there a solution to it?

It seems like sometimes if you have a poor enough design,

whether you got to talk about cutting down trees or whatever it is,

but almost as you were telling that story, if I'm the ice removal company,

you show up and it's like, how are we supposed to get rid of this ice?

They probably just throw down some ice melt, which doesn't really do anything.

Talk to us a little bit about all of those general concepts, if you will.

It was a combination of both. The city came in and put in this ramp,

certainly exacerbated the problem there.

The problem that we kind of framed it as was this is removable.

So even the ice folks said, yes, we could have done this.

We could have removed this. We could have taken care of this.

So those were some key admissions for us of yes, this is a manageable issue.

It just takes more work. It's a little more expensive, but it can be done.

So what was the contract between the HOA or the property management company and

the snow removal company in terms of how often they were supposed to come out,

triggering events?

I guess my question is why wasn't the snow removal company out there removing

this ice?

Yeah, so their entire defense was we met the terms of our contract and they were

successful. The jury found no liability for them.

And what they said was we have a two-inch trigger depth,

so there has to be a storm event, number one.

And then the accumulation has to be two inches or more on the sidewalk when we

measure of snow and/or ice.

Then we come out and we remove it and we monitor it for 24 hours.

Then after that,

we only are required to come back out when there's another snow event and that

two-inch trigger depth is met.

So their argument was it wasn't met here because there was no storm recently,

so we weren't required to be back out there at that time dealing with this

issue.

And there was a clause in there that the HOA can email them at any time to come

back out and address things. So their other argument was we received no email,

so we're not responsible for it.

Just because I'm curious,

I've seen this in a couple of these snow removal contracts,

the two-inch or three-inch triggering event, where is that measured from?

Is it on location or is that at DIA?

Who decides officially if there has been enough snow to trigger a

triggering event?

This differs in every case. In this one,

basically their policy was they come out to the property,

they'll measure at a couple of locations with a tape measure,

so they'll measure from the sidewalk how much snow there is or ice,

and that if it's two inches anywhere on any of those measurements,

they've got to clear the whole property. If it's not, they don't have to.

So that's interesting. So the snow removal company is doing that,

and are they keeping internal records of these exams or inspections?

Not that we could find. So that was an issue in the case of did they even do it?

And argument was of course not. If they'd been doing it,

they would see that there's seven inches of ice and an inch of snow on top of it

because there's no document showing it was ever done.

It feels almost like interests are not aligned to have the snow removal company

actually come out and do a measurement because you'd almost think that they'd be

inclined to find there is a triggering event so that they can get paid to remove

the snow.

So it's interesting that it's the snow removal company and not the HOA that is

like, "Hey, there's more than two inches out here.

Come on out and clear it." Maybe I'm wrong about that,

but that strikes me as odd. No?

So there's almost like there's an incentive for them to say it's two inches or

more. Most of.

The time it's obvious.

Even if it's not.

Yeah. I mean, you would think. Also, then you have a snow removal company,

they're spending time and money going out and inspecting and not doing any work.

So I mean, they're not getting paid for that.

Maybe they get some small monthly fee or something, but I don't know,

it just strikes me as odd. I haven't encountered that before.

And so one of the things I love about doing this podcast is I learn new things

every time, and this is certainly a new one for me. It's fascinating.

Well,

one of the things they said was if they had come and done it and it wasn't two

inches, they don't get paid.

So they kind of tried to make it seem like we wouldn't do it if there's less

than two inches because we might do the work and not get paid for it,

but it's kind of an interesting issue. Yeah.

And then you have this idea of triggering event,

but then that doesn't alleviate the hazard because if the hazard is from

snow melt and freeze and thaw, freeze, thaw, freeze cycle,

that's not going to fix that problem.

Was that sort of a central issue in the case?

And talk to our listeners a little bit about how to frame that

piece of a dangerous condition existing.

I guess what I'm saying in artfully is you can have a snow event and you can

have a snow removal company come out and completely comply with their contract

and remove all snow and ice from the pavement.

But we have a case right now where they pile all the snow in the corner,

that snow melts, flows downhill, freezes,

and someone slips and falls on that ice and has a terrible injury.

So when you're analyzing these types of premises liability cases,

how important is it to frame what the dangerous condition is? In other

words,

was the dangerous condition the snow or was the dangerous condition the

design?

Talk to us a little bit about how you went about establishing and framing what

exactly the dangerous condition was here.

For us, it was framing it as the ice that was accumulating.

Certainly the layout of the sidewalk was an issue,

but the city's the one that installed it and the HOA is aware that it's an issue

and not doing enough to take care of it while the company that does take care of

it says, "Yeah, we can do that.

You just have to tell us," that was their position.

So the key here was framing it as snow and ice, especially the ice,

because my client saw the snow. He says, "I saw it. I chose to walk on it.

I slowed down. I tried to be safe." So for us, it was about, it's not the snow,

it's the ice that he slipped on underneath it.

So our focus was the dangerous condition is the six and seven inches of ice

being allowed to last for days and weeks at a time because the last snow event

before my client slipped, I believe it was about four days,

and it wasn't a huge one. The last large snow event was 17 days before.

So it's that they're allowing it to persist for this long is the dangerous

condition, not just that it's not there for a day or two,

but 17 days since the last big snowstorm.

And I think you and I spoke before,

but you were able to uncover actual emails from

residents to the HOA because I know we talked before about the email saying

we've received multiple complaints.

Were you ever able to track down any of the actual complaints?

The only complaint we had was the one my client filed because we had a copy of

that one.

We were never able to recover any of the other actual original complaints.

We were just able to get the email where they basically said we're receiving

complaints about basically the snow and ice in that exact same spot.

And then of course,

we discovered in the 30(b)(6) there were emails they hadn't given us where the

president of the HOA at the time of trial,

he was a board member at the time of the incident,

had actually gone to the location where this happened and was taking photos of a

bunch of snow and ice two years before talking about how it wasn't getting done

by the ice removal folks. That was a fun discovery we found during the 30.

And as you're talking,

I'm curious if you really tried to articulate to the jury

the liability of the snow removal company or

how did you handle their involvement in the case? I mean, you sued them.

How do you handle that? I'm just putting myself in your situation like, oh,

this is kind of tricky. So how did you guys walk that tightrope?

Well, we knew the claim against the ice removal folks was the toughest one,

mainly because they're limited to what's in the contract.

And so our argument then was because there's no documentation,

they can't show that they actually went out and did measurements after some of

the storms.

So what we did have was we had an invoice showing that after the big snowstorm,

they'd come out and removed snow 17 days prior to the incident.

There was no de-icer put down on that day, so that was one of our arguments.

And then there were some snow events after that where they're supposed to be out

there measuring,

but there's no documents to show it and they didn't have any witness to say,

yeah, we went out and did it. It was all,

we believe we did it or we think it was done,

but there's no proof of it. So we argued if they'd gone out and measured,

they would've seen this ice building in this location,

so they didn't go and measure. And then one of their counters was, well,

we don't measure every inch of the property,

so we came up with a theme for them of you have to measure where it matters.

You'd had complaints about this area, you need to measure this area.

So that was kind of the theme we took with them.

Was there any debate?

Did you have to get weather expert to talk about how much snow had accumulated

as to whether or not there had been a triggering event between the 17 days

before and your fall,

or was that something you sort of just conceded that there was not?

So I though about getting a weather expert. I decided not to.

The reality is there's no way to show there was any snow within four days of the

incident, and we know that the ice is incredibly thick at that time.

And so we have our client to talk about it being there and when it was done.

We've got invoices and some documents disclosed from the snow removal

folks showing when the snow was and how much.

So we just kind of ran with those documents and I felt those were more than

enough.

Yeah. Love it. So talk to us a little bit,

what was the final verdict and did they assert any comparative fault against

your client here?

I do want to dig into the comparative fault piece once we hear the juicy details

on the verdict.

Yeah. So the final verdict, it was about 2.8 million. I think it was just shy.

The comparative on our client was 20%.

We knew it was going to be between 20 and 30 from our focus group,

so I was pretty happy that we got the low end of it.

It was 40% against the HOA and 40% against the property management group.

So when all was said and done,

it was roughly about 2.3 million net to the client. And then with interest,

we anticipate it'll be just over three million for the final judgment.

Wow.

So did you sort of own comparative of your client and

suggest that the jurors make it a small amount or did you leave room for the

possibility the jurors might find your client was not comparatively at fault?

So I decided not to admit any. I felt we had a pretty good explanation.

I think the jury would only punish us if it just didn't make sense at all.

I think we had a story here that just makes sense. He saw the snow,

he was able to walk 10 yards on it before he gets to the bad spot,

no problem because he's going slow and being careful.

And it's only because this ice is there that's basically black ice.

So no matter how careful he is and he steps on it, he's going to slip.

So I felt we had a strong enough argument of we shouldn't be putting the blame

on him, but on the folks that are driving by the spot every day seeing it,

all they got to do is send an email to get it taken care of and they're not

doing it. So we went with just saying we don't believe he's responsible.

And so in my mind, I'm a little bit confused on,

you mentioned before that there was snow on top of this black ice,

but it hadn't snowed in several days.

Was it just such a cold period that whatever snow did fall three or four

days before was still present?

Correct. Yeah.

So it was a combination of the temperatures as well as it being a shaded area

where the sun's not hitting. So that was our position.

They of course tried to say that no, it should have been visible,

but we also had some really good prior photographs of this area with old snow is

what our client called it, not fresh snow.

So it looked kind of like old snow on top of it.

Fascinating.

So let's kind of change gears a little bit and talk about the

trial presentation strategy.

And I know that you were sort of first chair on this case and in speaking with

us, I think you did the majority of the trial work on this case.

And so I'm curious if you have any thoughts about how important it is to

have whoever does voir dire also do opening,

or do you think it's okay to split voir dire and opening,

just focusing on that piece of the trial presentation?

Because I'll find I go back and forth on that.

Is it better to have the person who does voir dire and establish

rapport with the jury, then come in and do opening or does it really not matter?

Curious your thoughts on that.

Yeah, I've done both. I don't think it makes a huge difference.

I kind of like doing voir dire and open just because I like doing them.

Same and same.

I don't think it makes a huge difference as long as they're there watching them

because the main thing is I want to incorporate things that happen in voir dire

in my open.

So making sure the lawyer who's going to be doing the open is hearing the voir

dire. I mean,

that's the most important thing and incorporating some of those things into the

open. But other than that, I think both can be very effective.

I like the idea of doing both,

but I also like the idea of they're hearing from two people, not just one guy.

It is interesting, like I said, I've been debating this as well.

And I think sometimes if you have a male and female trial attorney,

it's good to have both getting in front of the jury just because people

associate better with One than the other, just even different personalities.

It's probably one of those things that we as trial lawyers just think way more

matters than it actually probably does,

but it certainly worked out well for you here.

Talk to us a little bit about focus groups.

So you've mentioned a couple times that you ran focus groups here.

What did you do? How did you do it? And what'd you learn?

So we ran a half-day focus group on this one. We just did a small one.

My main focus in this one was to figure out what are the key

facts that the jury really is going to hang on.

And so we presented it from a very neutral standpoint. At some point,

they actually thought I was the defense lawyer.

And so we presented the very basic facts.

We didn't talk about damages until later.

It was just focusing on liability facts and what matters.

And what we figured out, of course, is the notice was everything.

In the beginning, about two thirds of that panel was against us,

hearing that it's a slip on snow and ice in winter in Colorado.

So we started out from a negative place,

and that's actually where I wanted it because I wanted to see what's going to

change people's minds.

And so as we walk through it and we start talking about notice,

all of a sudden more people are feeling like, okay,

did do something wrong here. The property management didn't do what they were

supposed to do.

And that kept changing as we gave them more and more facts and layering them in,

which I found really effective. And an interesting thing happened,

which was - so my client had reported this actual incident,

like this snow and ice about two years before in this area.

He'd made a complaint. It actually cut both ways, so it helped and hurt us.

But one of the things that started happening was the potential jurors or

prospective jurors were like, "Well,

maybe he's kind of making this up and he's got a vendetta against the HOA,"

which we never brought up. That was a defense they raised.

I didn't bring it up in the focus group. They started talking about that.

But then I got to the damages and the injuries and how bad he's hurt and had to

have an L2-L3 fusion, has had five surgeries,

got more on the way. It disappeared immediately. They're like, "Oh,

this is a serious case." There was no more discussion about maybe

he's making this up, maybe this isn't real. It disappeared. And so from that,

I decided actually, I'm going to tell the story of what happened in my open,

but I'm going to hit the damages first.

And so our trial strategy was we called our treating doctors and then our

experts first and showed the jury how serious this was to just get

right ahead of this nonsense of he's got some vendetta and it's making this all

up. So yeah, it was incredibly effective focus group.

And so even just a half-day, if you've got a tough case, I recommend it.

It's not that expensive if you get it yourself, Craigslist,

Facebook Marketplace, just vet them a little bit, get 10 to 15 people,

not too expensive and is really helpful.

So that's fascinating and kudos to you because I'm hearing

you run this focus group and you had the wisdom, which I don't think I would,

but you had the wisdom to realize that this issue about this being a

setup or even the comparative fault piece of it

seemed to go away once the jurors understood the severity of your client's

injuries. So based on that,

you sort of change your presumed trial strategy to put damages

right up front, which wouldn't you agree it's contrary to the whole David Ball.

Trial.

Technique of you just focus on the defendants, defendants, defendants.

And here because of what you learned in a focus group,

you reverse engineered it. Is that what you did?

That's absolutely amazing by the way.

That's absolutely right. It's the exact opposite of what I normally do.

I put on the defendants in my case in chief. I want them up right away.

We're hitting the liability and why they're at fault.

But just based on how things changed so dramatically in the focus group when

they heard how bad the injuries were, I just said, "You know what?

We got to show this jury we're not faking injuries here.

This is a real case with real injuries and then we'll tell them why it's the

other person's fault, the other folks.".

Yeah.

And I want to talk a little bit more about it because we seem to be doing a lot

of big data focus groups lately and they're really useful.

The information you obtained is very, very, very valuable.

But what I'm sort of imagining in my mind is when you're running this focus

group,

this is what I would like for you to talk to the listeners about is how you

procedurally did the focus group.

Because I'm imagining you start out with sort of this neutral fact

and you're getting feedback and you give them more facts and you get feedback

and then eventually you give them damages and all of a sudden the jurors are

like, "Oh my gosh," and they're totally on your side.

And so if you were not doing an in-person, small,

objective, one fact at a time focus group,

then this epiphany that could have made the entire difference in your case

would've been lost. So what I would love to know a little bit more is exactly

how you go about doing these focus groups.

I know you mentioned you do a neutral statement, is it a neutral statement?

And then are you asking what more do you want to know and how are you recording

this data? So basically a very long rambling question,

give our listeners a 30 second,

the Reader's Digest version of how to run an effective in-person

focus group based on your experience.

So one caveat, we did it by Zoom. And so we did a Zoom one for this one,

but it was me running it.

And so the way we do it is we go through just the facts and we'll start with

the most basic description you can come up with of the case that's neutral.

And we say, "What are your thoughts? How do you feel about it?

What other information do you want to know?" And it's kind of the same questions

after each layer of facts, right? Are you leaning one way or another?

And then we layer in the next set.

So we start with it's a slip and fall on ice on...

I say fall because it's terminology. That was a huge issue at trial,

let me tell you. We start with it's a slip on ice in Colorado in the winter.

What are your thoughts? Then we say, okay, this was on a sidewalk in this area.

Here's the issue with the sidewalk. What do you think?

Then we go to the next one. This was the responsibilities of the parties.

These are the folks involved. What do you think? It's like, okay,

then we start getting into more, here's what the parties knew,

here's what each side knew. What do you think about that?

Does that change how you feel? And we layer them in one at a time,

not taking a position,

but just seeing what's important and what's changing minds because the damages

was a huge one,

but of course the notice was another because we were able to show... We say,

okay, you're going to hear there's some emails,

years of notice for the prior two years of this issue. How does that factor in?

And of course that changed minds too. Then what I do is once we have all that

in, we talk about the damages, you're going to hear the claim is this, right?

They're claiming this, this and this.

We stop there once we've got all the information out just to take temperatures.

And then what I do is I do an argument for both sides, a very short one,

like 10 minutes argument from both sides,

and then we talk to them again and then we just give them the case and say, Hey,

you're the jury. I want you to deliberate this as if you're the jury.

Talk about it amongst yourselves and I'm going to sit here,

I'll answer questions if I think they need to be answered,

but just talk amongst yourselves, do you believe these elements are met?

And then I let them do that part of it.

And then the last part is what would you award in damages? These are the damages

claimed. What would you award for each category?

Just out of curiosity,

how accurate was the jury award in the focus group versus what you actually

obtained?

Shockingly accurate. Actually when I heard from the focus group,

I was like, this seems a little high.

I'm worried that maybe we gave them the wrong information or we didn't do a good

enough job on the defense. I don't know.

But what we found was shockingly accurate.

So what we got was we knew we'd have a range most likely between 20 and 30% of

comparative. And then we knew that at least from the average or so,

from the numbers we were getting, we're looking between 1.5 and three million.

Three million was the highest number we got.

So the average is probably a little lower, like 2.5.

That was our general expectation with a few grains of salt obviously since you

can't give them everything in a half day jury trial,

but I was actually really surprised that result was right where we were seeing.

I'm really intrigued by this idea of doing the Zoom in-person focus

groups because it just sounds procedurally so much easier than having to wrangle

people at your office.

Is that something you've done a lot of these sort of Zoom focus groups?

No, this is actually my first one doing a Zoom focus group.

I found it really effective. And like I said, the result was pretty spot on.

So I think it's more about just making sure you're presenting a neutral case and

listening to what people are saying and trying to connect with them and

understand their positions more so than being in person and talking to them.

There's a little bit that's lost certainly, but it's just so much easier.

It's easier to set up. It's much more effective in that regard for sure.

Sort of my experience,

because one of the things I love about doing this is that my brain just starts

to go in different ways to do it because I can see how valuable doing a

Zoom focus group can be.

So maybe you do that early on and then as you get a little closer to trial,

maybe then you bring actual jurors in and you do a real voir

dire because I have found that actually practicing voir dire in

front of real people, in front of focus group jurors can be really useful.

Now of course you have to be worried about if the focus group jurors are going

to know you're the plaintiff's lawyer or the defense lawyer or whatnot,

but I love the idea of running pretty inexpensive Zoom focus groups

early on and then bring people in person,

you're able to practice your voir dire and your opening maybe a couple weeks

before trial. Sounds like that would be a good way to go. And the cost,

talk to us a little bit about how you found your Zoom focus.

I know you mentioned Craigslist. Candidly,

I don't even know that Craigslist is still a thing.

How do you find people just post it on social media or what do you do to find

people?

Yeah, just things like kind of advertising like Facebook Marketplace,

Craigslist.

The main thing that I'll caution folks is you got to vet them a little.

Bit.What do you mean?

You got to make sure they're from the county you're in.

Okay, okay.

Yeah, there's folks out there that will do anything for money, right?

So you want to make sure it's somebody that's from the venue,

that's not some sort of scammer who's just trying to be in there to make some

money but doesn't care and isn't going to pay attention.

So just taking a couple extra steps, like checking to make sure, yeah,

this is the kind of person that is actually going to pay attention,

somebody from the venue because that's what I want, things like that.

How much are you paying them and do you make them sign some kind of NDA or

something just so that they won't discuss the results with anyone in case they,

heaven forbid, get called on your jury? Someday that's going to happen to us.

I know, right? It hasn't happened yet, but someday.

Someday.

Yeah.

Someday.

Definitely an NDA, certainly.

And I think for this one we did like 20 or 25 an hour, something like that.

I can't remember.

Yeah, that's fabulous. So all right, let's just talk then.

A last fun subject is kind of the breakdown of the verdict.

Did you have any concerns about non-economic damage caps and impairment?

And I have it written down here.

You probably know it like the back of your hand, but you've got 1.595 economic,

800 non-economic, 400 in impairment.

Absolutely amazing. So first thing, talk to us a little bit about the economic.

Heard you say your client had a lumbar fusion surgery.

What did you present as far as future medicals are concerned?

So we hired Dr. Matthew Hyzy. A lot of folks probably know who he is.

Did a life care plan for us. It was just shy of $900,000. A big part of that,

or at least part of it was a future fusion at an adjacent level.

So we had that full life care plan. And then for the priors,

a lot of it was the past surgeries, the prior fusion.

He'd had two hernia surgeries, a knee surgery, testicle surgery,

so a lot of surgeries involved.

I just want to touch a little bit on the future fusion,

the adjacent disease issue.

How old was your client when he fell and how much resistance did you get from

the defense? Who did they call to say that's nonsense?

Yeah, so he was in his 50s. I'm trying to remember exactly how old.

I can't remember off the top of my head. I want to say he was 55 at the time,

but I'm not a hundred percent sure. As far as who they called,

so they called Dr. Salerno,

who was basically a counter life care planner who didn't do an actual life care

plan. Her sole job was just to basically pick apart Hyzy and say,

"This is not a sufficient life care plan.".

I think most people, most of our listeners are probably familiar with Dr. Stull.

What do you feel comfortable sharing about how the jury perceived those

witnesses?

So as far as Salerno, I'll talk about her first because it's pretty quick.

They thought she was credible and effective,

but they did still award us almost all the futures.

So not really much to report there. Dr. Stull,

obviously a repeat customer. I've had him on cases before. Basically,

my strategy with him was twofold. Well, I should say three.

The first was just narrowing down to the actual issues.

He even admitted on direct that, yeah, he's got all these injuries. Yep,

he's needed all this treatment. It just wasn't caused by this incident.

The first step was just narrowing him down to his core opinions of the three

areas he said he's opining on. Yeah, he's got all the injuries,

they're just not related. But he did offer, number one,

he kind of made a mistake,

which is the back was a huge part of this case and he did an IME of my client

and never examined his back. So we got that admission.

And then of course the admissions that he's not a spine surgeon,

he's not a spine specialist, he doesn't do these surgeries.

So I think that helped us as well. And then for the back,

one of the issues we had in this case was it's referred pain in the hips.

So my client didn't report low back pain, he was reporting hip pain.

And so one of Stull's arguments was, well,

he doesn't report any hip or back pain for months and months and months later.

It's like six or eight months later where we first see it.

He'd actually missed from the PT intake within two months where he actually was

reporting hip pain in both sides of the hip.

So he missed some medical records as well. So we talked about that with him.

But really what helped is a Mitnik strategy that I've appropriated is he had a

knee injury in this incident and he had pain from this incident,

but it should have got better in four to six weeks. And so what we do is we lock

in with him, okay, yeah, he's reporting the pain.

He's got an injury from this incident.

The pain's in the same area before the four to six weeks.

Pain's in the same area after this four to six weeks.

There's never any reported pain before.

We lock all that in with him and you walk him into the question of, "Okay,

so what you're telling this jury is my client went to bed one night at four to

six weeks with pain in his medial left knee.

And what you're telling this jury is he woke up the next morning, same pain,

same area, feels the exact same,

and now something else other than this incident caused this.

Is that what you're telling them?" And of course he tried to go off on tangents

and I just asked the exact same question again three times before he finally

just said yes. And then I immediately went into bias.

You work 99.9 for the defense, you're making six to $700,000 a year doing this.

That was effective. I highly recommend that strategy.

And I'll tell you something funny,

he's such a pro that he actually said after he answered yes to that question

about going to bed that night, and then I hit him with the bias, he said,

"I knew that question was coming after that answer.".

The Mitnik stuff is so great because it's so simple and yet so

effective. And I feel like we as trial lawyers,

we often overcomplicate things and the simplest

is often the most effective. So kudos to you.

Last sort of subject to cover just briefly is did you have a conscious plan

about trying to get the money in impairment versus non-economics or

based on the focus group's results that you were getting,

were you going to be okay with even if non-economics got capped out,

that's okay as long as you got some impairment?

What was your strategy behind your ask for non-economics and impairment?

Yeah, so for non-economics,

we asked for basically an amount that would hit the cap,

but not really go over it. And so we tried to focus more on impairment.

Didn't really work here, right? They gave us about 400, I think, for impairment.

The good news is we weren't stuck with the caps,

and of course they did award almost the entire amount we asked for in economics.

So we were cognizant of the cap,

but we also liked that number because it's very similar to...

Basically we asked for the same amount of past medical for the non-economics and

then that's right at that cap, so it really worked out for us.

Well, everything about this trial really worked out absolutely amazing. I think,

were you in front of Judge Figa on this?

Correct, yeah.

Okay.

I want to be careful just because I know this case might be pending appeal,

but anything about how Judge Figa runs the courtroom,

our listeners should know about or any technology issues or any little quirks

that people that are walking into try case there should know.

Probably the main thing that really helped me,

and the jurors actually told me this afterwards,

he lets you move around the well during open and close.

I was the only lawyer that did it and the jury talked to me afterwards and

thanked me for it because they felt like I was talking to them rather than

giving them some sort of presentation. So if you're going in his courtroom,

ask for permission to do it and do it. It works.

The other thing I'd say is he's very focused on fairness.

I think that's a great thing. So when you go in there, just be ready.

If you have arguments, make sure you're arguing why things are fair or not fair.

He's very concerned about that and I think that's a great thing.

It's so important to have a good trial team and having a good trial team doesn't

necessarily mean that work is split fifty fifty in terms of witnesses,

but talk to us a little bit about how much of a difference it made having

another attorney on this with you and a paralegal that could help keep all the

ships headed in the right direction.

One of the most helpful things is just having another attorney to talk to about

the issues, almost like a sounding board,

but then also getting sometimes differing opinions and those opinions might be

right. Sometimes that happens.

It certainly was helpful here having Paige in our corner. She was adamant like,

"We're going to get a good verdict on this case.

This is going to be a great result." And having somebody there to just kind of

help pick you up during those really stressful times makes all the difference in

the world. And then having a good litigation paralegal, I mean,

there is no substitute.

Having somebody who can pull documents when you need them,

you get an objection to something,

they're pulling the relevant stuff to get to you right away,

making sure things are disclosed on time, just running the case.

There's no substitute for it. It makes all the difference in the world.

All the difference in the world. Well, to you and your team, kudos,

amazing result,

and I cannot wait to have you on next time where we'll talk about the next

amazing verdict we didn't even get to cover,

but was it fun for your parents to get to hear about this one?

Absolutely. I was calling them every day after trial,

letting them know what was happening and giving them updates and yeah,

it was great. I loved it.

Oh my gosh.

I can just imagine how that must have made your parents feel just like it's like

having a kid that plays sports or something and getting to be there and then get

the result. That's absolutely amazing.

Slip and fall on ice cases in Colorado,

they are so challenging and yet can be so righteous.

I'm sure you can't wait to get right back in and get after it again.

So thank you so much for taking the time to come on the show.

Thank you, Keith.

It's been an awesome opportunity and it's been great speaking with you.

Hopefully, maybe something will help other folks.

Well, I feel like every time I do this,

I learn something new and everyone can be watching out for the Supreme Court

that's going to be issuing a pretty important ruling when it comes to common

areas in HOA communities.

The PLA is just a gift that keeps on giving to the defense industry because it's

so complicated and they can just...

There's no simple PLA case ever. And for all of our listeners,

thank you for tuning in.

If you got a trial coming up after you get a great result,

or even if it's not a great result, but listeners can learn from it,

please reach out. We'd love to have you on.

The whole purpose of this podcast is just to help the other people like Colin

here that are in the arena.

This job can be so challenging and so isolating at time,

so please help your fellow warriors who are in the arena. With that,

I'm Keith Fuicelli.

Thank you so much for listening and we'll see you again next time.

Thank you for joining us.

We hope you've gained valuable insights and inspiration from today's Courtroom

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