Every case has facts that weaken a client’s position. But by showing their hand to the jury early on, a lawyer can build trust and credibility as part of a winning strategy. 

In this episode of Colorado Trial Lawyer Connection, Ed Lomena joins Keith Fuicelli to discuss a recent verdict on a rear-end collision case involving a likable client whose case had significant problems related to treatment and property damage. Ed explains how he was able to work around these issues and turn a $5,000 insurance offer into a $980,000 verdict in the conservative venue of Colorado Springs. 

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☑️ McDivitt Law Firm 

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☑️ Keith Fuicelli | LinkedIn

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Episode Snapshot

• Why preparing a client for the courtroom pays dividends at trial
• Trying–and winning–a case with almost no property damage and treatment gaps
• The simple approach that helped turn a $5,000 insurance offer into a $980,000 verdict
• Getting to know a client and the “trial by human” approach
• Icebreakers and the Socratic method in jury selection
• Overcoming bad facts with good strategy
• Ways to poke holes in an expert’s calculations for a low speed collision
• How a single witness can change the tone of a case

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

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

Well, hello everyone. Welcome back to the Colorado Trial Lawyer Connection, and I could not be more pleased to have Ed Lomena. Hopefully I got that last name correct.

Close enough,

Close enough. Well, my last name is Fuicelli, so I tend to have pretty thick skin when it comes to mispronouncing last names.

Absolutely.

But I am so thrilled to have Ed on to speak about what is truly an amazing result and what I would encourage everyone to do, and we'll have to figure out how to get the property damage photos on the site. But this is an amazing verdict where there was literally no damage basically to the plaintiff's car, and zero damage to the defendant's car in a very, very, very conservative venue of Colorado Springs here in Colorado. So welcome to the show, ed.

Thank you, man. I appreciate it. I'm glad to be here.

So before we kind of jump in this case, tell us a little bit about yourself. What led you to become the plaintiff's trial lawyer that you are?

Well, it's actually interesting. I didn't originally want to be a lawyer, so I didn't have a childhood dream of being a lawyer. I had an incident in college. My mother passed away and I was referred to, sorry. No, it's okay. I was referred to a lawyer by a family friend and it was a really bad experience. Now that I know more about the law, I realize they held onto my case for two years. It was kind of a medical malpractice case. They held onto my case for right before the statute ran and then dropped it. And I'm a young college kid at the time, and I didn't really push it or understand what happened, I just thought there was nothing there. But I did think it was a bad experience and I did think, I don't know what I want to do with myself. I'm in college, I don't know what I want to do. I said, maybe I could help someone like me. And so that was the idea originally of why I wanted to become a lawyer. There were some obstacles in the way and things like that, but that was the original idea.

So it reminds me sort of the Matt Morgan, the John Morgan story of what propelled him to become an attorney where it was, I think his brother had this catastrophic incident and was not well represented. And you are the managing litigation attorney at McDivitt Law, which is a pretty big law firm, lots of cases, lots of value or lots of volume. And I'm wondering how your experience, if I'm hearing you correctly, feeling like you weren't done right by the attorneys involved in your case, how that impacts how you handle cases at McDivitt.

So it does because I am very conscious of the fact that when people come to us, they come to us because they're in need. Something happened in their life. It's not just a car accident. Their life is affected just like mine was. So I obviously always take the time to get to know them and figure out what makes them tick. Oftentimes you'll meet someone, you'll even meet a client or you'll handle a case and you may not even like that client very much, but as you get involved with the case and you find out more about them and you find out more about the person, and especially when you're getting ready for trial and you're really getting to know them, something always usually clicks. And I can usually relate to something that I deal with them. Now we are a large firm that has a lot of volume, but our litigation team doesn't handle as many cases.

They still handle more than I would say most litigation teams. But when we get ready for a trial, we're starting months in advance and it's all hands on deck. So every attorney is helping out with the prep of the trial. So it's really a team effort and we do a really good job of joining together to help everybody up because we do know we have so many cases, it takes more than just the person trying the case to get the case ready. So we have attorneys that will come in and help practice crossing our client. We have attorneys that will come in and we do focus groups, and they'll come in and they'll act as the defense attorney in the focus group and they'll do an opening statement for the defense. So there's someone fighting back when we're doing the focus group. So it's a team effort here.

It sounds like one of the benefits of working at a larger firm is you've got the resources to really try these cases the way that they should be tried. Am I hearing you correct on that?

That is correct. And I told you earlier, we have a mock courtroom where we are able to practice in and we bring our clients into the mock courtroom before the trial, and that's where we practice their testimony. So they have the opportunity to sit in a courtroom and we'll even bring in focus group people and we have them testify in front of them and we get critiques of what they need to work on and what their strengths are, what their weaknesses on, so we can kind of cater to the exam to those things.

Have you found that putting your client in the witness stand, if you will, and actually preparing them for trial, that really has a profound effect on how at ease they are when they actually walk into the courtroom? How well does it work is what I'm mean?

It does work because you'll even see could the original preps were maybe not in the courtroom and they're doing really well, and then you bring them into that courtroom the first time you prep with them. It's almost like starting over because they're so nervous when they're sitting in that seat, they start to forget things that they were saying throughout the whole process. So it is actually, and that's probably what would happen in the courtroom if you brought them in cold into a courtroom, people get nervous, there's a jury there, they're going to forget things. But when they actually practice in the courtroom, you can actually see them getting better in the courtroom. And then what we've seen is even the clients that we're the most worried about, they get in the courtroom or they get in the real courtroom and they do really well. Obviously they're not perfect and they don't say everything we want them to say, but no client ever is, no plaintiff ever is, but they do really well. And so some of the clients I was most worried about, they end up doing really well because they were in that environment.

So before we jump into this case, just curious, you mentioned that you had to overcome some struggles to become an attorney. You want to tell us a little bit about that?

Well, yeah. The original struggle was just coming from where I come from. I didn't know any attorneys. I didn't know that you could do that, that you could be an attorney. And when I decided I wanted to be an attorney, I didn't realize I was middle of college and couldn't. When I graduated from college, I tried to get into law school and I actually tried for three years in a row and I couldn't get in. So I actually gave up. I wasn't going to go to law school, and I worked as a paralegal for those three years. And one day I'm working in this young and I worked in big law firms, so big law. And one day a younger associate comes up to me and he asked me to do a project for him, and I did the project, and then he asked me to do another project and I did. And then he asked me, he said, Hey, have you ever thought of going to law school? I think you would do well. And I told him and I said, man, I tried. I can't get in. So I gave up on that dream, so I'm doing the next best thing. And he asked me if I was willing to give it another try, he would help me. He said he was.

Wow.

Yeah. He was on the admissions committee of a law school and he said he knew what they were looking for. And at the time, diversity was a big thing in law school and life experience was a big thing. And he said, let me help you and let's give this another shot. And I agreed and he helped me write my essay and he helped me point out the things that were important. And he wrote me an incredible letter of recommendation and I got in. And

So

I had given up on the idea of becoming a lawyer three years earlier, and then I got in. So I owe him a lot.

Talk about perseverance. That is an amazing story. Three years, denied, denied, denied. Fourth times the charm.

Yeah, and I was done. I wasn't going to do it again. And I'm glad he came into my life because I think I'd live a completely different life right now if I had not met that attorney.

Wow, amazing. Well, let's jump into the case we're here to talk about. So tell us a little bit about the case and what you were dealing with. Okay,

So this is a case where I jumped in to try. It wasn't my case originally, but the thing I liked about the case was the client, one of the nicest people I've ever met in my life. I will tell you the client I've liked the most since I've been lawyer. So she was just a great woman and I was really happy to jump in on this trial and help her. So it was a rear end collision. She's trying to get on the highway and she gets rear-ended and the collision happened that I think 3.8 miles an hour or something like that. So there was very little property damage on her car, very little property damage on the defendant's car. Problem is she's 60 some odd years old, so she's got some significant degeneration in her spine, which makes her more susceptible to an injury. So the defendant's insurance company didn't really want to deal with it because she had a surgical recommendation. So she goes to get treatment and she's focusing on her neck and she doesn't complain about her back or elbow. Those were the other injuries. And she goes to get treatment and they want her to do pt and she doesn't do pt, but she gets injections and then she gets recommended for a surgery and she doesn't do the surgery. So she, wait,

Let me just jump in real quick. Which surgery at

That? It was a cervical fusion. Cervical fusion, and she doesn't want to do it. And the reason she doesn't want to do it is because as a nurse, she had taken care of patients who were paralyzed and one of the side effects of any type of neck fusion back is paralysis. So she was terrified of paralysis and she was scared that she would be paralyzed, so she didn't want to do it. She did all the injections that they wanted her to do. They did radio radiofrequency ablations and steroid injections, and none of that worked. They also recommended APRP injection for her elbow. She's a nurse and she didn't like the idea of the PRP injection not being FDA approved, so she didn't want to do that.

Interesting. I was going to ask why. It seems to me, forgive my ignorance, but PRP seems relatively, but maybe I'm blissfully ignorant about it. I don't know.

So it is, but it is very painful. Most doctors that do it will tell you it's one of the most painful things they do, and it works on some people and it doesn't work on other people. And because that's the information that she was given, and then she looked it up and she saw that it was not FDA approved, she was scared to do it, so she didn't do that either. Makes sense. So obviously a big part of this case is the property damage, right? The property damage that was none. And the next part was the fact that she didn't comply with what the doctors were telling her to do. But I think to better answer your question, yes, since this was a first party case, the defendant's insurance company because of the surgical recommendation, just gave up their policy. It was a hundred thousand dollars policy, a hundred thousand dollars policy. They just gave it up the UN policy, which was state form, we made a demand and they said, pound sand, here's $5,000, go away.

Okay, fully compensated,

Fully compensated. Here's thousand dollars, go away. And we knew that wasn't right. Now,

Obviously we were scared of the property damage, so we would've settled within our policy limits. We probably would've settled if they would've offered anything reasonable. We weren't looking for the amount that we got in the verdict because we knew the property damage was a problem and we knew the treatment issues were a problem. So we knew the case had problems, but when they offer you $5,000, the only other option is to try it. And with her as our client, we thought, you know what? We got a shot here. Even though the property damage is low, we just have to make sure that we're able to show the jury how great of a person this lady is. So that was the idea.

And to sort of cut to the chase in case people are listening and they're not aware, tell the listeners what the verdict was in this case and then we'll talk about how you got it.

So the verdict was $980,000, $5,000 offer and $980,000, and I believe it was $250,000 for pain and suffering, two 80 for the treatment passed in potentially future for the surgery. And then I believe it was four 50 for permanent impairment.

So again, probably going out of order. Were there any specific strategies that you utilized to try to get that money in the impairment bucket? Or given that you were dealing with a two 50 policy, was it not sort of a huge concern to make sure that the money was in the impairment bucket versus the pain and suffering bucket?

So no, there wasn't any concern because at the end of the day, we had to get three 50 to get the two 50 policy. So the idea was what do we have to do to get $350,000? So we knew if they gave us the medical bills in the future so that we're looking at two 70 right there. But we understood that. So the policy wasn't coming in or anything like that. The judge didn't let any of that stuff in. So what we said is let's just bang them hit, let's get 'em as hard as we could. So did put effort into how we were going to argue pain and suffering and how we were going to argue permanent impairment. So we didn't do anything overly complicated. What we did was we did a per diem pain and suffering and permanent impairment. And what we did was we told 'em what for the money, we asked for what that would cost in a day, and we did the whole if you were applying for a job thing.

And the reason we did that, the reason we did that, because I was considering doing the hedonic damage thing, the only thing is I don't know that that's ever been tested in Colorado Springs, and I didn't want to tell a Colorado Springs jury, the human body's worth 10 million or 50 million without having something specific to back that up, because they don't know that Colorado Springs juries are going to accept that because they don't like to give money. So I didn't know that they were going to accept that. And maybe that was just naive on my part, but I figured with this one I wanted because the whole idea of the case is let's keep this as simple as possible. She didn't have pain before she had pain after. Right. There's no explanation. There's no explanation for the pain after other than this collision. So since we decided how simple we're going to keep the case, we decided to keep the damages asked. Very simple. So we did something that everybody can relate to applying for a job.

Was there a defense objection to the applying for the job argument?

No, not at all.

Okay.

I think they were probably happy we did that instead of the he not, because I think they were probably like, wow, I'm glad they're not doing that. So I think they were happy that we did that evaluation, but it just kept with the simplicity of the way we were arguing.

Sure. Sure. Sort of a strange question, because I have the same thing coming up in a case of mine where you mentioned that this was your favorite client, and I'm wondering if in cases where you feel like your client is especially likable and especially authentic, if the strategy is you sort of keep 'em on the stand longer than you otherwise would, right. Normally the idea is you get your client on and off as quickly as you can, at least that's always been my theory, but I've got this case coming up and I'm wondering if it's similar to yours where I just feel like the true nature of the client is so beautiful. I kind of want to just keep 'em up on the stand and take my sweet time going through everything. So long question. How did you convey to the jury how amazing and beautiful your client was?

So Kristen Boylan did the direct of the client, but what she did was she did exactly what you said. She kept her on the stand and a lot of the direct examination was about her and her life. So she was a single mother. She raised four kids. She worked three jobs sometimes so that they could do with and they never had to do without. So she was a hard worker. She never takes a day off of work. She really caress about taking care of the military. It's something she takes pride in, and she loves her grandchildren. One of her grandchildren is named after her. One of her grandchildren is special needs, and she's the only one that her children will allow to babysit that kid. So we brought out all those things about her. So a lot of her direct was just about how great she was. Right.

Fantastic.

And we really had to portray that we really had to paint the picture of this woman. So we also called her son, the

Son

Who named his daughter after her. And he was, I mean, when he was done testifying, we were all crying. Everybody in the jury was crying because he was talking about how great of a mother she was. He talked about how hard she worked when they were so that he could go on a trip with his classmates so that he could play sports, so he could do all of these things. He said they didn't see her that much because she was always working, but they had a really good childhood because when they saw her, the time with her was great, but they also got to do, they never went without. And it was because she was such a hard worker. And then he talked about how him and his wife don't go out on date nights anymore because they don't have anybody else they would trust with their special needs daughter other than her.

And he was really, really, really a good witness. And then we called her friend for 50 years to just talk about their friendship and how great she was and the things they used to do before and the things they didn't do after. And one of the things that we were able to really portray was that her life had significantly changed. So you have this really great woman who was a hard worker, loved spending time with her grandchildren, and then after this collision, she would go to work, go home, lay down on her heating pad and watch tv. And that's what she would do every day. And her grandkids didn't come over anymore and they didn't do all these things. And it was just a matter of, well, is the jury going to believe this? And she was so likable and so honest on the stand that they believed it.

Wow. That is just, and I'm assuming that you spent a lot of time with your client to learn all this information, all of these arrows, if you will, for trial. Is that sort of the whole trial by human, spend a bunch of time with your client, really learn all this?

Well, we prepped her every day for a month.

Every day,

Every day, every day. We had some contact with her where we were asking her questions and what we did. And then that's my philosophy. I try to do that on every trial. And it's worked for me recently, is every day, the last month before trial, I'm going to talk to you, even if it's for 10 minutes, I get to ask you five questions in that 10 minutes, but I'm trying to ask you every day. Every day we're going to do something right. So we did that with her. And the thing about her was in the beginning, she was very closed off. She wasn't a complainer. She didn't want to complain about what was happening to her, and she didn't want talk about her life. And as time went on, we were able to break that down a little bit, break those walls down so that she could actually talk about what happened. And the thing was, she just wasn't a complainer. And I'm sure you've had those clients where they're like, they're great. I just can't portray their greatness to the rest of the world. So that was the challenge, being able to portray that. And then by the time we got to the trial, she was very comfortable talking about the issue she was having. And she actually did something that she never did in prep. She cried a couple times and it was genuine crying. It

Wasn't

Made up, it wasn't anything. It was genuine crying. And I think that touched us all. And obviously she cried when her son was talking about her when she's on the stand, but the jury was watching her and they were watching what she was doing, and we know that they told us after. But that was the hard part is getting her to be able to express who she was and tell the drew who she was. But once she was able to do that, it was great.

So you've got this wonderful client, great sort of before and after picture with difficult property damage. So did you have a theory or plan going into voir dire of what you were going to deal with knowing the hurdles your case faced?

Yes. And what I do in voir dire, and what I've been doing is I do a bad fact voir dire.

But

Before I do that, because I work for a large advertising firm, we advertise mostly in Colorado Springs. I know going in, some of the jurors may have seen me on a commercial they may have, and I don't typically tell them the firm I work for, but they figure it out. So the first thing I do when I start jury selection is I do the basic thank them for being their thing. I always try to open up with a joke or something, but it has to be a natural joke. It's not something that I plan, it's just something that I just say, this time I was injured, so I'm walking up on crutches. So that was how I started out. I talked about that. But the first thing I typically do is I ask them how many people believe there are too many lawsuits? And that starts the conversation. And because we only have 20 minutes, I have to do this fast, but I go through and pretty much everybody in the jury pool raises their hand. And remember this jury pool came up at three o'clock, so they weren't very happy. They were not happy to be there. I broke the ice with them a little bit, and then I just asked them, how many people think there are too many lawsuits? And basically everybody raised their hand and it was all for the same reason. People are greedy. Too many

People want money. Nobody wants to take responsibility for their own things. And you kind of go through that and you say, Hey, I understand that, but does anybody here believe there is no lawsuit ever that's justified? No one's ever going to say that, right? So you go through them and you get them all to admit that there are some lawsuits that are justified. And then I'll usually ask them about advertising attorneys just because I work in an advertising firm, and you'd be surprised how many people don't like the commercials or find them annoying or find advertising attorneys to be slick. In this trial, we heard the word ambulance chaser. I haven't heard that one in a while, but someone brought up, I think their ambulance chasers. So with that, you have an idea. Right now, I have to watch out for these people, but what I do is I will tell them, I'll say something like, Hey, you guys don't know me.

I don't know you. This is the first time we met. And I say, can we make a pact? And usually, usually they're like, all right, I'm curious. Okay, well, this is the pact. Okay. I promise you that me and Ms. Borderline will be truthful, respectful, and we'll make sure that we're professional in this trial and we'll be very respectful of your time and everything if we can do that. Do you promise to put any bad feelings you have about lawsuits and lawyers aside and judge us solely on how we put on this case or how we behave? In this case, they all say yes.

They

All say yes, but now we have a connection because we made a deal. But now I have to be, and now because I only have 20 minutes, I can't rehab all these people that think there are too many lawsuits or don't like or don't like lawyers. So because I know that I only have that short period of time, now I've made a deal with them that, hey, they're going to put that aside and they're going to judge us just based on this case. And if they won't make the pact, they got to go. Right.

That's what I was thinking about as you're explaining that is it sounds brilliant, but it almost sounds like you have to only give up on cause challenges in a way. You're sort of no, or am I wrong about that? No,

No, no, you don't. Because there are some people that when you go through the questions, even though they've made a promise to you that they're, they're going to judge you based on this case, they cannot. And those are the people that are going to stand out to you. So you're not giving out on your cost challeng, you're still going to make your cause challenges. But what happens is then I tell them, I say, in being what I just said about being truthful, I'm going to tell you that you're not going to see any property damage at all in this case. And then that starts a conversation. Well, you see them start getting uncomfortable in their chair. And the people that you think, the people that really, even though they made that pact with you, still have biases. Once you tell them that they're going to speak up,

They're going to tell you. They're going to tell you that they, that's a problem for them. And then I usually get into, so once I get past that, I'll get into, I got into, in this case, degeneration. Most people will know what degeneration is. And we talk about that and see if people have any, because there are some people that they have pain in their neck and back just from degeneration. They can't get past that. Someone cannot have pain. So you have to get through that. And there was one guy on the jury who had degeneration, got into a car accident and had a lawsuit, but hated lawsuits and hated attorneys. So figure that guy out.

So talk to me a little bit more about that because, and this is me being selfish, this is my case coming up with, oh, middle-aged woman with degeneration that was basically asymptomatic, become symptomatic. So walk us through a little bit about how you talk about degeneration and voir. I'm fascinated.

So the first thing I'll do is I'll ask, who knows what it is? You'd be surprised how many people don't know what it is. And if they don't know what it is, I'll tell 'em what it is. But usually you'll get one or two people who know what it is and they'll explain it. And then I talk about the fact that you can have degeneration without having any symptoms. So I'll ask em question about that. I was like, for those of you who had degeneration, did you always know you had it? Well, no. When did the symptoms come about? Well, the symptoms came about at this time, anything caused those symptoms to come about. So the one guy said, well, I got into a car accident,

Right? And then he explained, even though he didn't end up on the jury, he hated lawyers and lawsuits, and he was the most vocal about how much he hated lawyers and lawsuits. He was actually very good when he was talking about how he didn't have any pain in his neck or back, and then he gets into this collision, then he needed a surgery, which is exactly what happened in our case. So he was able to explain that. So then I go from there and I start talking about being more susceptible to injury. Does it make sense to everybody here that if you have degeneration in your spine, you're more susceptible to injury? And most people will pick that up and they'll agree, and then you talk to 'em a little bit more about it and you ask them, you say, well, I'm telling you here, my client had severe degeneration in her neck and back, and she had it before this collision. Now knowing what you know about degeneration now, is there anybody here who has a problem with that? Or is there anybody here who thinks differently about the case? And you'll get some people who might 'em, right? But I think they understand at that point. And then from there, and then from there, I went into the fact that she didn't do the treatment the doctors recommended.

So talk to us about that. First of all, what's the bad fact? And then how did you approach it?

So the bad fact is obviously she was recommended to do PT and she didn't do it. She was recommended to have APRP injection and she didn't do it. And she was recommended to have surgery and she didn't do it. So the first thing I asked was, has anybody here ever been to the doctor? And the doctor told them to do something and they just didn't agree with it and they didn't do it. And most people have had that experience. And I said, is there anybody here who thinks if you didn't do it, it's because you didn't need it? And you get some people that they'll go either way. And then I get into, well, has anybody here ever seen a doctor? And the doctor told 'em, do something. They were just scared to do it. And that's when everybody who's ever been recommended for a surgery or who's ever been recommended for a treatment, they don't recognize they can relate to that. They were scared.

I recently ruptured my Achilles and I had to go get a surgery for it. And I know it's not back surgery or neck surgery or life-threatening surgery, but it's still scary, right? For sure. So everybody can relate to a doctor recommending something and them being scared, right? Because I knew that's what she was going to testify to. So I was able to bring that out of them. And then from there, because those were my three major facts, my bad facts. So then I got into, because now I had made the pact with them, so me and them have a deal. We're invested in each other. I gave them the bad facts. So I showed 'em, I'm honest, right? I'm going to present an honest case. I'm telling you all of the bad things about my case. And then that's when I asked them about money, right?

Big money, you're putting it out there. Start with, we're going to be asking for hundreds of thousands of dollars trying to get that out or tell us more.

I usually tell 'em, we're going to ask for money here, and I explain why we're going to ask for money. And then I say, anybody have a problem offering a million dollars if the evidence warrants it, even if I'm not going to ask for a million dollars, because now they're thinking big numbers. So if I ask for less than a million, I'm

Being makes you look reasonable.

I'm very reasonable. So one of the other things I try to do is always be the most reasonable guy in the courtroom. So I'll start at a million, I'll jump to 5 million, I'll jump to 10 million. Now people start getting a little weary at $10 million. Well, I would need to see a lot to give you $10 million, right?

Sure.

But in their mind, they're thinking, Hey, he might actually ask for $10 million. So when I don't ask for that, so when I do ask for what I ask for, it's not shocking to them because I told them, Hey, I might ask you for 10 million at the end of this trial.

Sure. Right? Sure.

And then once I'm done with that, if I have time, and most of the time I don't,

I'll

Get into burden of proof. And I have this paper trick I do, either I do it in voir dire if I have time, or then I do it in closing where I do a visual with two reams of paper. They didn't let me do it in this one in voir dire, just because the judge wasn't the judge of the case. He was substituting in that day, and he was a criminal judge. He had done many civil cases. So he just thought it was odd what I was doing. So he didn't let it in. But we did it in closing. And I think it was helpful to explain to the jury what the burden of proof is. And that's usually how I do my voir dire. I do the bad fact voir dire. And the reason I do that is because 20 minutes is way too fast. And we couldn't get more than 20 minutes. And at one point when I was going, I turned to the judge, I said, Josh, how much time do I have left? He said, eight seconds.

Oh my gosh.

And I said, you're kidding. And he said, no, counsel, you have eight seconds. You better wrap this up so as to wrap it up and thank them and sit down. But I'd gotten out most of what I wanted, right? Really, I wanted to get out. I wanted to get them to trust me. So that's why I make the pact. And I wanted to get out the bad facts, and I wanted to know that even though there were bad facts, they were still being open-minded, and that they were still willing to give money. And the crazy thing was no one told me that they were not willing to give money. They were all willing, everybody that I talked to was willing to at least hear the case before they decided how much money they would give.

So talk to us a little bit about your panel. Obviously this is a Colorado Springs case. So what are you seeing as far as jury panels in the springs?

So this one was a difficult voir dire because there were a lot of bad feelings about lawyers and lawsuits. And they came up at three o'clock and they admitted when the defense was doing voir dire, none of them wanted to be there, and they were not happy to be there. So this was a little bit difficult, but once I got 'em talking, they took it really serious. So our strategy was we wanted a younger jury

Because although we figured older people would understand degeneration and stuff like that, I found that it's very difficult to get the older Colorado Springs jurors to crack as far as money. They're very conservative, still is giving money. So we wanted a younger jury and we got that. There was one juror who would, I would say would be considered senior citizen, and she was the hardest one to commence. So I was right about that. But we wanted a younger jury. We were looking for diversity. I'm big on diverse juries. I wrote an article in trial talks about the importance of diversity in jury. So I'm big on diverse juries. So I was looking for diversity. If we had, and there was a little more diversity in this panel than I've seen previously, and I was looking for people that I thought were educated. The reason being is I think it takes, I knew Minga was going to come up and put up these fancy calculations and these big numbers, and I wanted jurors who could ultimately kind of understand that, because if you don't understand that, it sounds great.

And you just look at the fact that he's saying the forces in the car are similar to sneezing if you don't understand the numbers, which most of us don't, but if you don't understand the numbers. So I wanted a somewhat more educated jury, and we got a lot of what we wanted. Now, there was one juror, and it was strategic. I'd never seen a judge do jury selection this way. And this was different than Judge Bentley said he was going to do it. So we had in our mind, jury selection was going to be this way, and it wasn't that way. It was the most odd way of doing jury selection that I've ever been a part of. Even the defense attorney was like, I've never done jury selection that way. I didn't understand it. So he's just moving people around into different seats and changing numbers, and it was just really confusing.

And then he would bring people in from the outside and make that person juror number two. And it was just weird. So there were a couple of people that we had spoken to that were outside of the panel, because at first he was only allowing us to challenge people in the panel. So we couldn't challenge anybody else, and we could only, there were people that were coming in that we didn't like. So we know that person's coming in. So then you have to knock 'em off right away. So the next person come in. Now, there was one juror. There were two jurors in the panel that we knew were going to come in, and we had to make a choice between which one we thought was worse. So the first one that comes in, we ended up using, we almost didn't use a preempt. We almost gave up one of our peremptory challenges just so that we could arrange the jury that we wanted, but we decided not to do that. So we knocked off the one and then the other one came in. But when she got called into the panel, she looked really angry and we were scared about that. We were like, oh man, that strategic mistake.

She ended up being one of our best jurors, but strategic mistake, we lost sleep over her. And even when we talked to her at the end, she's like, why did you pick me? I was so mad that day. And we said it wasn't by choice. It just kind of ended out that way. But she ended up being one of our biggest supporters. So it was just a very odd jury selection. But we got what we wanted. We had a transgendered transitioning male to female who was in the military, juror who was an engineer, and

She ended up being the foreman. And she was also very crucial to us getting the verdict that we got because she was able to explain to the jury how Dr. Yao's calculations were fudged.

So talk to us a little bit about your theory and your philosophy and your plan on dealing with Dr. Yao.

So Kristen Cross, Dr. Yao. So we realized the jury really liked him, so we didn't want to really attack him aggressively and go after him. We had a different approach for their doctor. We were really going to go after him. He was the target. So we knew with a 3.5 mile collision, the Delta V that he came up with, it was going to be really hard to really discredit him because this is what a biomechanic lives for. These small collisions that they could say could not have caused any injury,

Bread and butter.

So what we did, we just focused on the fact that the calculations aren't exact. They could be flawed. And we pointed out certain assumptions. He made certain inconsistencies with what he testified to, what was in his articles. And we basically left it at, if any of the assumptions that we talked about that we've questioned here, if those are completely inaccurate, your opinion is basically useless. And he wouldn't admit, his opinion was basically useless, but he did give us that his opinion could be altered or changed. So he wasn't necessarily the target. We knew that he was going to be a hard cross. I have a trial next week where I'm going to really go after him, but because it's a different circumstance. But this one, we didn't really go after him. We knew the jury liked him. We just had to show that his calculations weren't exact.

It's not an exact science. There are some numbers he's making assumptions on, and if the assumptions are wrong, his whole calculation is wrong. And that's all the engineer on our jury needed because he was able to then show them like, Hey, if this assumption is wrong, if this and that, and the things he wasn't taking into account, he wasn't taking into account the height of the headrest, which is a major factor in being injured. He doesn't take that into account. So he didn't measure the headrest. He didn't take into account the actual size of Ms. Kester. He admitted that the vehicles that he used were not the same vehicles. So there could be some variances or changes in his calculation based on being the same vehicle and things like that. So just poking holes like the defense does to our plaintiff's case. Just poking holes, poking holes into his argument. And like I said, that's all the engineer needed to be able to discredit him with the jury

That with a likable plaintiff.

With a likable plaintiff. And that's the whole thing. And I will tell you, even though they liked what he said, they thought the sitting down in the chair sneezing was ridiculous. They told us that when we talked to them.

So they thought that was going too far.

Great. That's good to know. I'm about to deal with the Jule hammer neck pillow strike. So same thing as a pillow fight. I'm sure our listeners have heard.

Yeah, they thought that was going too far. We didn't attack Delta vs. In how he came up with the Delta V number because him, particularly his math is he never does his math in his reports. So when you calculate a Delta V, there's some numbers in there that he doesn't talk about that he just makes up because there's no way for him to get the number. So we're going to do that in this upcoming trial. We're going to actually talk about some science, and I'm not going to challenge him. I know he's going to beat me on the science, but there's some numbers he's going to have to explain to the jury, which we didn't do in this case because we didn't have the ammunition.

Yeah. I'm curious your thoughts, because I have a case coming up with Jule Hammernik where the Delta V is based upon his calculation of crush on both the vehicles, but there were no measurements done. It was just a visual calculation. And I look at it, I'm like, well, wait a minute. So if it was a half an inch deeper, then how does that affect the Delta V? And of course, none of those calculations are run, and I'm kind of feeling like that's a chapter of cross that has the potential to land some punches. What are your thoughts on that?

It does, because, so one of the things that these biomechanics do that because we don't know the science as well as them, is they reconstruct the accidents the wrong way. And the way part of them reconstructing the accidents the wrong way is actually using pictures to show the damage. Because the pictures don't always reflect the actual damage. They're not looking underneath the vehicle, they're not looking for other things, how it's, so one of the things, if you look at how a biomechanic is supposed to do a reconstruction, for them to be more accurate, they need to actually test the vehicle and actually know the exact damage. Then a lot of them use this NASS database. I don't know if he did. So the purpose of the NAS database is to get vehicles and show and basically get these pictures that show, Hey, this happened in this crash and this happened and this crash.

But again, that wasn't what that was made for. And second, it's not the actual vehicles. So the vehicles that were involved in the collision, one of the reasons they never test them is one, most of the time they're repaired. But even if they could, they don't want to test the actual vehicles because wow, that's going to actually give you actual numbers, not estimations or assumptions based on similar accidents that were not the same, that weren't the same people. So again, it's another estimation and assumption that they're getting from the NAS database. And then when they come up with these numbers or these Delta Vs, they're using what they got from the NAS database, the pictures and all this stuff, and none of it is accurate. So it's all estimations and assumptions. And if those estimations and assumptions are wrong, then their Delta V calculation is wrong.

Right?

So that's part of how a good way to attack them. Obviously, there's more that goes into that, and we could talk about this for hours, but those are things that is a good area of cross. Explain to them why they, did they use the NAS database? They do it so they could pull up pictures to scare you or pull up pictures to say there's no way look at it. But if you look at some of the crashes that come out of those, some of the crashes that have the highest delta V have the least damage, and some of the crashes that have the lowest delta V have the most damage. So it's an inaccurate science.

Well, and then I feel like you take it the next step, which is, okay, well, so whatever the delta V is, well, so what does that mean for this individual human in this individual crash? And when you have someone like yours that has preexisting conditions that make her more susceptible, I just love that strategy of pointing out that the delta V is not that certain. And then so what? Right.

And there's plenty of articles that say Delta V has nothing to do with injury. So the forces to the vehicle have nothing to do with the forces of the occupant. And a lot of these biomechanics, that's what they want. Do they want to tell you that the forces of the vehicle have to do are the same as the occupant, but we're talking about steel versus muscle and flesh, right? Steel versus, so there's some, you have these smaller collisions where they have a low delta V, but they've bent the steel bumper or the steel frame. Well, you're telling me in this collision was hard enough to bend steel. It wasn't hard enough to hurt flesh or muscle.

Yeah. Yeah. You and I were talking before about the tow bar issue, right? Am I right that your client in this case had a tow bar?

Not in this case. In my one going

Forward.

Yeah. So in this case, she didn't have a tow bar. No, but you're right about tow bars. Tow bars also messed the calculation up. So if they didn't take into account the tow bar, then their whole calculation is wrong. So there's a lot of stuff to attack

Them on. That's so fun. So I only have a little bit more time here. I wanted to talk a little bit about your judge. I understand you had maybe a hostile judge in this case, and is that true? And what'd you do about it? Yeah,

The judge would not sustain any of our objections and basically sustained all of the defense objections. It was at a certain point, it got to the point where I just got frustrated and we made a record. And once we made the record, the judge on that particular ruling gave an explanation for his ruling. But our record was based on all his rulings because we would go up to a bench conference and he would be talking it through, and we're like, all right, finally, he's going to give us one. And then he would find a reason. He says, yeah, all this, but you know what, I'm going to sustain the objection. We would walk back, I don't understand why you literally, your logic all pointed to the fact that we were right. And so once that happened, we made the record. The first objection of hours, or the first objection of theirs that he overruled was when I was crossing Dr. Heimer, and I wanted to use the deposition transcript I got from Mike Fasser where he testified for the plaintiff.

So let's talk about that both procedurally. So you have a deposition from another case that you're going to use to impeach Dr. L on the stand. So walk us through sort of how you got it and how you used it and how the court,

Alright, so I got it from the listserv and Mike Foer has posted it. And so I called Mike Foer and I asked him if I had permission to use it, and he was like, yeah, yeah, fine, do it. I don't know that I really need to do that, but I just want to be respectful to him and the client. Plus I like Mike, so I figured I would be respectful. So now I have this, and I'm looking at the transcript and I'm what he's saying in his IME report, which was brutal, by the way. It was unnecessarily brutal. His IME report, what he was saying in his IME report was the exact opposite he was saying in the deposition transcript for when it was his patient. So the way I started it out was, is I kind of went through and I was like, would you agree pain is an injury?

And he said, no. And I said, okay, well, would you agree that if someone develops pain and there's no objective finding that pain could be the result of an exacerbation of a preexisting condition? Nope, wouldn't give me anything. It's like, okay, well, do you remember in 2019 you testified in this case? And he kind of remembered the client. I was like, okay, do you remember testifying? Objection, your Honor. Improper impeachment by the defense. He calls us up to the stand because I knew that he wasn't giving us anything. I had the rule with all the case law and the summations of the case law typed out very nicely for him in a report. And I just handed it to him when I got to the stand and I said, here's the rule, judge, and here's the case law that supports my ability to impeach him with his prior sworn testimony.

So forgive my ignorance, but how do you, and this is, I should know this, but how do you authenticate the deposition from the other case?

So you don't necessarily authenticate it because you're not using as an exhibit, you're going to show to the jury, right? So I didn't have to authenticate it, but what you do to lay foundation is you establish that he doesn't remember the testimony, and then you establish that he doesn't remember the testimony. And then you just go through the steps that, and you tell 'em when the testimony was, it was sworn under oath, and you go through the basic steps.

So

The defense attorney says, she says, before she looks at my piece of paper, she says, well, your Honor, he says he doesn't remember it. So I think this line of questioning's improper. And I was like, well, actually, your objection actually helps my argument because what I need to do to lay foundation is establish that he doesn't remember it. And she goes, oh, I guess I have no objection.

So then we

Went back. So he had to overrule their objection. So we get back and I pull out the transcript, and literally he says, he gets asked the question in the transcript in this one, he had two sets of MRIs of the cervical spine that showed no difference. And he gets asked, doctor, there's no acute injury here. And his response is, well, it depends on if you consider pain an injury. And he says, well, what do you mean, doc? Well, if there's pain that doesn't really correlate with the imaging, or we can't find objective findings, I usually say that that's an exacerbation of a preexisting condition. So then I'm like, well, doctor, let's talk about that when you're hired by the defense. Right? That's not what you say. You say it's unrelated. Then he says, so I read that to him, and he's like, I didn't say that. And I was like, well, what do you mean you didn't say it? I was like, doctor, that's exactly what you said. Do you need me to read it again? And he says, yes, I want you to read it again. So I got to read it again. Right?

Gosh, it's like a dream come true.

And then he says her lumbar spine isn't related because she didn't report it eight hours later in the er. Right? Well, in this case, his client had a herniated disc that he didn't report pain for three months. And he actually testifies in the deposition that, no, you don't have to pain sometimes. Sometimes it takes a while for it to show up when it was his patient, when he is hired by the defense, if they don't report it eight hours later, it's not related. So again, he's getting, well, he had a structural problem. It's a completely different case. Well, doctor, if he had a structural problem, you would think he would feel pain sooner.

Now, did you ask him the question?

Yeah, I asked him that before. That was the first question I asked him If there was a

Structure,

You'd feel paid suitor. And he said, yes. So then I got him with the, and then the best part of it was he had commented on Dr. Castro, and he said he thought Dr. Castro was biased because he was the defense attorney in that case. And he said that Dr. Castro, when it's his patient, he'll say surgeries related when it's not his patient, he never says it right. So he thinks Dr. Castro's bias. So I went through,

Yes, I have, have that testimony that I've used with Dr. Castro.

Okay. What I did was is I said, well, doctor, you've testified eight times for the defense. And he says, I testified for the plaintiff's too, because at this point he's pissed off at me. He's very defensive. I testified for the plaintiff's too. I was like, I didn't say you did it, doctor. I was like, in fact, you've testified more for the plaintiff than you do the defense. I was like, so I'm saying on your testimony list, you've testified 12 times for the plaintiff, you'll agree that these were all your patients correct? He's like, yeah, and you'll agree that every time you've testified for the defense, you've said that the injuries are not related. And he said, well, I won't testify for the defense unless I think the injuries are not related. Okay, that's great. And you'll agree with me that every time you've testified for the plaintiffs, the injuries are always related. And he says, well, I don't know. Well, I have your 26 80 twos here. And he goes, well, yeah, I would agree with that. So aren't you doing the same thing Dr. Castro does? Aren't you bias? No answer.

No

Answer.

No answer. Wow. Just

Like it says everything. This was different. That was a different case with different injuries. He went back to that.

Did you get a chance to talk to the jury about what they thought about him afterwards?

Yeah, so it's funny, the defense attorney, the first thing she says is it feels like the tone of the case changed after Hamer's testimony. And they were like, yeah, they were from the first question I asked them, they said he was defensive and they didn't like that he was defensive and really standoffish. And so they didn't like that. And then they said they just thought he was completely unreliable everything. He was biased and everything he said was the opposite of what he said in the transcript. And they even said that that kind of changed the tone of the case for them.

They

Liked Yao, they did like him, but then they hated Nyer. And I think we kind of needed that to get back on track. And then from then on, I think everything for the trial went really well. Kristen recalled Dr. Crower, who was our spine surgeon, and if you don't know Dr. Crower, he's only testified twice, both for us. He's excellent. And he came back on rebuttal and Kristen was able to get him to really nail home. The surgery was done not because of the degeneration, but because of the degeneration and the pain symptoms.

By the way, the surgery was never done. The surgery was recommended. No, that's why recommended.

He recommended it. Sorry,

Recommended that. But I saw that in your explanation. I was hoping you could talk a little bit more about the difference between the surgery being needed because of the pain, not the degeneration. Talk us a little bit about that distinction.

So what Dr. K Crower will tell you and what other doctors will tell you, and what we argue is the degeneration by itself is not enough to do surgery. You need the other thing. There's two components to it, right? There's the pain. So degeneration without pain doesn't need surgery because why would you be operating? You're not fixing anything. So for a surgeon to do surgery, they need the degeneration, plus they need the pain symptoms. And the pain symptoms has to be those of not just normal pain, they have to be life-changing pain. So it makes you change the way you do things in your life. So what Dr. Crower would say is he treats the symptoms, he doesn't treat the MRIs. So what he says, you need both the components. He'll only do surgery if he has both those components. So at the end of the jury gets to ask questions.

So originally Dr. Crower testified on video, so they couldn't ask him any questions. We got him to testify live on rebuttal. So the jury asked him, they said, Hey Doc, if you had just met her and she had to degeneration, would you have done surgery and no pain? Would you have done surgery? And he said No. And they said, well, if she had, and then I think the next question was, okay, if you hadn't met her and you just saw her MRIs, would you do surgery? And he said, no, because I would need to know if she's in pain. And then the next question was, was the degeneration why you did surgery? And he said, no, I need two elements to it. I need degeneration and I need pain. If I don't have both those elements, I won't do surgery, I won't be helping them. In this case, I did the surgery because of the pain symptoms that she had. So I did the surgery because of the degeneration and the pain, not the degeneration. And that's the last thing the jury heard.

Wow. I am so inspired and complete. Honestly, I have learned so much. So thank you for taking the time to speak with us. This is one I will go back and listen to again and again. And I understand you're in trial on Monday, so probably by the time this is aired, there's going to be another trial under your belt and I think you are trying an enormous number of cases with fantastic results. So I just want to personally thank you for taking the time to share your wisdom with us and all that you do for Colorado Trial lawyers. So thank you. Thank you so much for coming on. It's been a pleasure.

Thank you. Thank you. I appreciate you inviting me on. It was a good time.

Alright. And if people want to get ahold of you, it's probably sort of like Coach Prime. You're not hard to find. I'm not

Hard to find McDivitt Law firm Edward Lo. Just look for me.

Alright, well thank you so much. This has been a true inspiration and again, thank you for taking the time. We'll see you soon.

Alright man. Thank you.

Thank you for joining us. We hope you've gained valuable insights and inspiration from today's courtroom warriors. And thank you for being in the arena. Make sure to subscribe and join us next time as we continue to dissect real cases and learn from Colorado's top trial lawyers. Our mission is to empower our legal community, helping us to become better trial lawyers to effectively represent our clients. Keep your connection to Colorado's best trial lawyers alive at www.thectlc.com.