Two cars collided head-on – but their client wasn’t wearing his seatbelt. The client suffered a brain injury – but didn’t require significant medical treatment.

Yet Michael Born and Peter McCaffrey of Born & McCaffrey Injury Law secured $380,000 from a jury. With host Keith Fuicelli, Michael and Peter reveal the plot twists in this unique case, starting at the hospital, when police initially considered that their client was at fault. The story changed when crash data revealed the defendant’s excessive speed. Michael and Peter discuss how they balanced the role that speed played against their client’s lack of a seatbelt. They also share how they delicately cross-examined the defendant so that the jury would not feel sympathy for him.

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Episode Snapshot

• Advice from Peter and Michael to young trial lawyers working for big verdicts
• The advantages of practicing with a partner versus going alone
• A story with plot twists begins with the client appearing at fault
• How the crash data prompted police to reassess their client
• What the investigator testified to help them win the case
• Why the defense didn’t call their expert

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. I am your host, Keith Fuicelli of the Colorado Trial Lawyer Connection podcast. Excited as always to have a new episode where we're going to be speaking with Michael Bourne and Peter McCaffrey about a great result they obtained not too long ago, I would say within the last month in Adams County, which can be conservative, but this was a wonderful result. So thank you Michael and Peter for joining us.

Hey, thanks for having us. We're excited to be here. Good to see

You, Keith. All right. Yeah, you as well. You as well. So before we jump into this case and the facts of the case, I always like to learn a little something about the guests. Michael, did you always know you wanted to be a lawyer?

I won't say always. You always talk to folks and some of them tell you from a little kid, I knew I wanted to be a trial lawyer. That wasn't exactly me, although I would say probably by the end of undergraduate I had a feeling that's the route I wanted to go and something that I would enjoy doing.

You mentioned, where did you do your undergraduate?

So I'm originally from Alabama. I know it doesn't really sound like it. I did undergraduate at Emory University, so I was surrounded by a bunch of future doctors for undergraduate, and then I did law school at Vanderbilt before I came out here.

So what brought you to Colorado?

Well, I'd taken the tennis bar, but it was one of those moments in life where you kind of decide what your future's going to look like, even though you have no idea, kind of through crashes of the wind and decided to leave the south behind and see what my future would look like out here in Colorado. And I had known people and I'd been out here before. I wasn't completely blind moving out here, but it was definitely time to start putting down roots and building a career. And I decided, well, I don't want to change in five years. If I'm going to do it, let's do it at the beginning. Right. So that's how I made it out here. Yeah.

And how long now have you been practicing?

Let's see, so I started, my first PI job out here was 2007. I started working for a attorney named Daryl Elliott, if you remember him. I do. He had that office over at 16th in Pennsylvania. Yeah, my first law job, well, injury law job.

Sure, sure. So been practicing a number of years. And am I right that you and Peter recently, I guess not too long ago, started your own firm? Is that right?

Yeah, I think we've been out for about 16 months or so. We incorporated back in March of 2023. And as you know, it's the whole new world, like the law stuff. Okay, fine. I've been doing that for 16, 17 years and we had to learn a lot to open the business on the business side, but it's been great. It's so happy we decided to do it.

Congratulations to both of you, especially starting out with this kind of verdict is a great result and I'm sure just an indicator of amazing things in the future. So congratulations to you both.

Thanks so much.

Peter, what about you? Have you always known that you wanted to be a trial lawyer?

I'm not sure I ever crystallized my desire, but I do remember in applying to law school, writing a letter about my passion for consumers and consumers who get screwed over by bigger companies and corporations. I never really thought about how that would come into practice, but looking back on it now, seeing myself as a personal injury lawyer going after or working with insurance companies, it certainly is something that I think was always in the back of my mind and it came together.

Are you a Colorado native or when did you come to Colorado?

I am not. I'm from upstate New York. After college I went over and lived in Madrid for a few years in Spain. Nice. So I wrote that letter to the law school applications from Madrid and then came back from Madrid, went to law school in San Diego, worked for a while in California as a lawyer doing lemon law, which is where you go after vehicle manufacturers to try to for defective vehicles essentially. And then got a great opportunity over here in Colorado with Bill Marlin over at Cap Marlin and Bill's worked at various iterations of his firm. And then a few years ago he, well, going on 10 years now, he and I went over to Frank Azar together and was working there. And so Mike and I started our own practice.

Great. Well, I can imagine that the amount of experience you obtained, both of you working at these various firms before starting your own firm, invaluable is sort of my assumption. Is that right?

Absolutely. The amount of experience that we've had over the past, I had over the past 10 years, we've seen maybe almost every single situation that you can see. I'm sure there's other situations that we haven't yet, but we've covered a lot of situations. We've covered a lot of difficult cases, difficult clients, so it has been invaluable.

Let me ask you this question. It's kind of along those lines. If someone is listening, let's say they're listener, they're in law school or they've recently graduated and they know that someday they want to go try big cases, get these great big verdicts that they hear all about, do you have advice about how advantageous it can be working at a higher volume firm or any advice you would give those young lawyers to help direct them on their path? Either one of you, Michael or Peter.

I'll take this one. Michael. The advice is do the dirty work, get the job that you can get, and then once you're in there, do every aspect of that job that you can possibly do. Take the difficult phone call, do the difficult hearing, do the thing that you're scared of, and never shy away from any of the work that they throw at you. Gathering that experience at whatever firm, whether it's a small firm, whether it's a big firm gathering that experience. And then you find yourselves in those situations that you've done numerous times and now you don't have the fear. Now you don't have the nervousness as much and now you feel like you are qualified to do the job that you're doing.

And I have a second little bit of advice also. So

Find a mentor that's willing to spend time with you. You study for the bar and you go to law school, but the local mentor that's been through the wars, and as long as they're willing to spend time with you and teach you, that's invaluable. And you can find that certainly at a large firm where I guess in theory you can get lost in the cracks too. So you got to be proactive to find someone when you're brand new at a large firm in a small firm, it's probably not that hard to find someone you should know that going in like, okay, they're hiring me here, this is who's going to show me the robes. Right?

Sure. It's great and inspirational. And how has it been, so you're coming up on a year and a half of having your own firm. I know you're talking or you mentioned before, some of the, I'm hearing administrative headaches of having to start a firm. Just give the listeners an idea of the highs and the lows of starting your own law firm after having worked at a secure large high volume practice. I'm guessing you both have something to say about this. Peter, why don't we start with you?

Certainly coming out, it's two different jobs, obviously. That's what everyone will tell you. You have the job of doing law, you have the job of starting your own firm. Luckily for me, and I think for Michael as well, I had a good mentor in Bill Marlin who had his own firm and he told me as I was working at a big firm with all the comfort and the security that you mentioned, the difference between that and what it would be like on my own. So I had some idea of what it was going to be. And it's the idea of obviously getting cases is a huge one for a personal injury lawyer. And at the beginning it can take time to build up the practice, but it's something where there's things that you never think of. I never thought of the insurance stuff or the registering with the Secretary of State. Luckily I have a good partner in Michael that covers my inadequacies or my deficiencies. So he did think of those things, but overall it's been incredibly exciting and the fulfillment that you feel once you get things rolling is unparalleled.

Michael, anything to add to that or also as you were mentioning that, Peter, I was thinking is there something to be said about choosing your law partner? Is it sort of choosing your spouse? How do you make sure you get yourself a good law partner?

Yeah, obviously you've got to, if you're teaming up with someone, you've got to find someone you want someone with. I think at least, yeah, overlapping skillset, but other skill sets as well. For example, Peter didn't mention, but at the old firm, he was running the Spanish department for a while. He speaks fluent Spanish. He mentioned kind of the boring stuff, the accounting and the rent insurance and that kind of thing. But we also had to learn how to do social media posts and Facebook videos and get the website up and going and aesthetics of that and photo shoots and all kinds of stuff. That wasn't really going through my mind, of course. I thought, okay, of course we need a website, but it never, what a pain in the would be to get one up and running, those kinds of things, right.

Sure.

So finding someone that's obviously you want someone that's, I mean the very basics obviously is an honest and trustworthy and quality lawyer, but beyond that, you're looking for more than just that, right? The personalities have got to mesh and it's great if you have someone that has abilities or interests separate than yours, and if you can split the work up that way, it's great.

And I guess the last question on this before we sort of jump into this case is do you have any thoughts, either one of you about advantages of having a partner versus people that go it alone? I can see sort of strengths and weaknesses, positives and negatives of both. Any thoughts on that topic to go it alone or partner with someone?

From my perspective, Keith, I've always been a guy that's played team sports. It's always been, and you hear from retired athletes all the time, what do you miss about playing sports? They miss the locker room. That seems to be the prevailing trend. They all miss the locker room and I miss that having people around you to share the success, to share the failures, hopefully there's not too many failures, but also just to bounce ideas off of, and that's where Mike and I, we worked together before and we both knew each other's styles and we would confide and we would talk to each other at our old job. And so we knew how it was and that repartee that way that we communicated with each other, that was an attraction for me to be able to say, Hey, what do you think about this case? What do you think about this thing? I personally am somebody that needs that. Not everyone does need that. There's other people that don't want that. They don't want the other person to say, Hey, here's what I think about the situation. They want to do that, and that's a hundred percent. I totally understand that, but I'm the type of person that wants to bounce things off somebody else, and Mike is a good person to do that with.

Alright, well let's jump into the case that we are here to talk about and one of the things I'm always fascinated in getting to talk with a bunch of different trial lawyers is how did you decide to assign roles in the trial? So is it somebody's first chair and assigns roles kind of takes the lead 50 50, so whoever wants to about that. I'd love to hear how you all went about assigning the trial rules. In this case,

We don't have a formal process. I will say we definitely through litigation or pre-lit cases, obviously we're partners in this endeavor and they're all our cases, but we have cases that we primarily handle. So for this one, up until we knew this one was going to trial, but as far as depositions, discovery, all that, I handled that up until we kind of sat down and six weeks before kind of decided how we're going to split the work up. But there was no formal agreement between just what do you want to do? One of the things we decided to do is split it up, try to make a rational split. So Peter covered the medical side of things, did the doctor's doctor was prepared to cross their doctor who they ended up not calling in the end, but we didn't know that until Tuesday night that there's going to be no cross of their doctor. Although it wasn't shocking to us just because the report was, we'll get into the injury, but what is the stock going to say? The guy wasn't hurt. I mean no. So we split it up that way. I did liability and he did the damages portion of him.

Alright. All right. And one thing that I did recently in one of these interviews that I thought I liked is, Michael, maybe we can start with you. What was the result? What was the verdict and then what were the settlement offers beforehand? And then tell us a little bit about the facts of the case and then we can talk about the specific trial pieces.

The end result was, and we're working backwards doing it this way, but this is the more exciting way to do it. The end result was, so the jury awarded all the economic damages we presented, which was 173 and change or so of medical bills. Jury awarded 75,000 for non-economic damages. We'll get to this in a bit, but it was undisputed, our client was not wearing a seatbelt in this wreck. And then punitive damages and we'll get to that too I'm sure, but the award for that was 175,000 in punitive damages and strangely they did a 70 30 split on liability. They assigned 30% to our client. Our client had the stop sign, the other guy had no stop sign, no traffic control device, but was as we'll get into go in way, way, way over the speed limit. But afterwards we were talking, there was a couple of the jurors did talk to us afterwards, so we got some explanation and I'm sure we'll get to it, but of what they were thinking coming up with that. But that is the end. So the final verdict altogether without cost, maybe 3 71 with cost, probably about three 80, a little bit more than that total verdict.

Alright, so tell us the facts what happened here

And I've been talking a lot,

Pete, you want to

Certainly, you opened, so this is right up your alley. Just redo the opening statement right now, right,

Please. I love that

Idea. Our client was coming out from a stop sign at an intersection, which just happens to be Hereon Street 96th Avenue, and he was planning on taking a left hand turn and traffic that's perpendicular to him, which is on Huron Street. The defendant was coming north on that road. So our client wants to turn south and take a left-hand turn and the defendant is going north straight. The defendant did not have a stop sign or a stop light. Our client had the stop sign. So our client pulls out from that stop sign, the defendant crashes into him and there's some dispute as to where exactly the crash happened, whether it was in the median, whether it was in the southbound traffic lane. But at any rate, they crashed in essentially at a head-on collision into each other. And our client was in a 1962 Volkswagen Beetle.

That's kind of like a classic car. He had a seatbelt just fastened in behind him. You know how people do where they don't ever plan on wearing their seatbelt, they just get in for ease of use. So he was not wearing his seatbelt. His vehicle spins around several times and he gets ejected from the vehicle and winds up on the concrete. It's not clear as to exactly what happened as he was getting ejected from his vehicle, but at some point he hit his head and he suffered a brain bleed, which was a subarachnoid hemorrhage. And so he was transported to the hospital. Obviously the brain bleed. They do a lot of precautionary measures and an important fact is he's at the hospital, the police come to the hospital at that point, they're talking to him and there's body cam footage of that interaction and essentially the cop comes into the hospital fully thinking that our client's at fault.

He says, what happened? Our client says a couple things and the police officer says, well, you pulled out from the stop sign and he smacked you. And our client says, how's my car? Well, it's not good, it's not in good shape right now. But then apparently at the same time the cop is talking to a potential witness and gets the idea that the defendant might've been speeding. So the cop basically says, okay, we'll take a look at this. But he eventually cites our client for be it at fault for taking the right of way. Our client doesn't have any recollection of that hospital interaction with the police officer as we argued due to the brain

Bleed. Let stop you real quick. Did your client have any recollection of seeing the car before the crash or was his memory wiped out for the whole interaction?

He says he saw the defendant. Good question. He says he saw the defendant prior to the crash. Now is this an imagined memory? Is this an actual memory? He says he saw it, but the cop asked him what happened. The first thing he says is, I don't remember. Followed quickly by, oh wait, he was coming. So he then starts to say something saying that he saw sees lights in the distance but they're way down on the intersection, which obviously is implying that the defendant was going very quickly. And then he has been very solid in his statements subsequent to that, that after the crash happened, he has no recollection for at least a period of time. But yes, he does believe that he saw the defendant prior to the impact.

So how was independent witness go to the police at some point and say the other driver was driving way too fast? How did the police come to find out that the other driver was speeding in such a way that maybe that person was actually at fault? And I guess what I'm trying to ask in artful way is isn't it foreseeable that drivers are going to speed? So I suppose there's a difference between somebody speeding five miles an hour over the limit and 25 miles an hour over the limit. So tell us a little bit about what the evidence ended up showing and how you got that evidence.

A witness is a strong word because even though she was classified as a witness by the police officer, she didn't actually see the crash. She had made a left-hand turn onto 96, which is where our client was coming out from, but she did not see the actual impact. She stated at some point she saw in the rear view mirror the crash happening, but she did make the left-hand turn from southbound Huron Street onto 96th Avenue where our client was coming out from. So ostensibly you would think that if she felt that she could make that turn safely, that the defendant must have been coming very quickly down the road. So based upon that is, and then based upon our client's statement and that the defendant's lights were way down the road because this did happen at 7 30, 7 40 5:00 PM so it was dark out on necessitate and headlights. So based upon that, the officer decided to pull the crash data footage, which without that information, this case would've been very, very difficult. I still think it did require us to frame that information in the proper way, but we would not have been able to do it without that. The speed limit at that road is 40 miles per hour. We have crash data footage from five seconds before impact that shows the defendant was going 65, then 66, then 69, 2 seconds before impact happened and then the impact happens at 66.

So how important, I'm hearing that the defendant driver was speeding up even at two seconds before, so did you all get into perception, reaction, time? He had to have seen your client and rather than slow down, he's speeding up.

There was even more to the story because who knows what was really going on. But well, to answer your question, there's no human factors expert that testified in this trial, although I will say the police officer ended up being very helpful. Definitely ask me. It's hard to tell how fast someone's going when it's just headlights compared to is he qualified to give that? I don't know. He's level three. One of the reasons this case ended up like it did is because they got the crash investigator unit out there instead of just your average B cop because the injury was bad, right? So they did a good job of actually interviewing witnesses, pulling the recorded data, that kind of thing, which kind of set the stage and the officer was willing to reassess. He ended up not issuing our client a ticket after finding out how fast our defendant was going.

And when I said there was more to the story, he testified, and when I say he, the defendant that it's a weird story. So he's driving, there's two lanes going north and this is a block before the wrecker. So he's headed home and a white car gets in front of him, he feels this car. So it passes him, gets in front of him and he says, slows down. So the defendant immediately goes back around and gets right back in front of this car that just had passed him. And he says when that happened is when he saw our client pulling out from the stop sign and then he wanted to get around our client is what he said to Zoom, I think he says veer around our client. He says he hit the gas, he didn't hit the brake when he saw him, he stepped out of it and tried to beat him around.

And then defendant testified that he didn't stop right at the wreck. He actually kept going for a while. The officer testified he stopped what, almost a block away. He was way up the road. He never interacted with anyone at the scene, never saw a client, nothing like that. But the defendant did testify that, okay, so he pulls over after the wreck happens, this white car pulls by him and is yelling at him, never stopped, never got identified. So is this some road rage thing that was going on? I don't know. It kind of seemed like it to me, but we only have the defendant's story about what's going on, but kind of makes sense.

That's what I was thinking when you were describing sort of what happened. I can just imagine someone being irritated that somebody passed him, so then they speed up. That's why he's going so fast. He's focused on this car that he's passing, isn't really paying attention to what's going on and the crash occurs. Question is, did the police officer testify as to his or her opinions as to who was at fault?

Yes.

What was the testimony? 100% defendant driver or what did the officer have to say?

So kind of behind the scenes leading up to this, the officer still felt our guy had a stop sign. You had to explain he's used to doing criminal things. This isn't an all or nothing thing, right? The jury is going to split up who's at fault. So his actual testimony was the number one major contributing factor to the wreck was the speed of the defendant and he was very clear and kind of one is the case I think besides what we got to harp on the scientific evidence of the speed two seconds before crash. So the jury certainly liked him and that testimony was solid for us.

Did the defense attempt to challenge the officer's qualifications and opinion about who was at fault or did you just get that in as expert accident reconstruction opinion testimony?

They did not. They hired their own reconstructionist, which I filed a Shrek motion on, and guess what I lost. That's how it goes a lot of the time with these things, but no, so they did not challenge the experts. They didn't file any 7 0 2 motions for the officer and honestly there was no objection. Again, he is not your average beat cop. Right? He's been through a lot of training, but no, we had no objections to his qualifications at trial.

Which agency was it that investigated? Was it state patrol or was it a local Thornton

Pd.

Oh wow, okay. And so Thornton PD and did I hear you correct? Showed up and pulled the EDR data off the black boxes? They did.

Wow.

Yeah, I don't recall seeing that in sort of just a run of the Mill City car crash case. That seems unusual. Has that been your experience?

It seems unusual to me too. They did a very thorough job investigating this one. Yeah.

One other question that's coming up as you're discussing what happened. Did you all concede that your client was a little partially at fault? What was the strategy on dealing with the comparative negligence piece at trial?

What did I suggest that closing to give 'em 5%, 10%? I think something like I said, five or

10% and it was a very soft sell. In closing, we embraced the lack of a seatbelt. We made specific reference to that in the opening statement because we felt like that was going to be a very, well, it's obviously a huge sticking point, not only with regard to non-economic damages, but also how the injury occurs. If he has a seatbelt on, does he even suffer a sub? It's

A brain injury and no seatbelt as always. Exactly. Yeah. We tried

To worrisome soften that blow. We didn't focus a lot. And I think that's probably correct on the comparative negligence portion of it, because we wanted to really harp, which we did over and over and over again about almost doubled the speed limit nearly 70 miles per hour. That difference of 42, almost 70 made a huge difference for us.

Did you all address the seatbelt in voir dire or save that for opening statement?

We did. We had a juror. You never know what you're going to get, and we were super happy with who we ended up with, but we had a juror that her dad had recently. One of the things we talked about in jury selection was head injuries, right? I think she said her dad was in his sixties or so. He was riding his bike, took a tumble head first, bad brain injury, had a good recovery, wasn't wearing a bicycle helmet. So that led to a lot of discussion about the seatbelt in this case. So that's how it came out in jury selection.

I have not tried a no seatbelt case. And so I'm curious if you got into the weeds about, well the no seatbelt only applies to non-economic damages, did you get into that or did you just sort of accept the fact, look your client's not wearing a seatbelt and give them some direction, give them the juror some direction? How'd handle that?

The old statute, as you know, which is why you're asking says pain and suffering and not the rest of the noneconomic damage, inconvenience, that kind of thing. Right? But the jury instruction says non economics and we mean obviously the seatbelt was something we were worried about the whole time. But I think in the end, I mean we addressed it. We had the doctor talk about it. The doctor doesn't know what he hit his head on or neurologist didn't have any strong opinions on. Even when asked on cross this whole injury just because he didn't have the seatbelt on, doctor said, no, obviously high speed collision. I've seen this type of injury with seat belts without seat belts. I've been doing this for a long time. So to answer your question, no, there was no motion filed and no argument made at trial. It only applies to pain and suffering. His inconvenience is still fine, loss of enjoyment in life, these kind of things. We just kind of rolled with the punches and rolled with the jury instruction as written.

So it sounds like a very difficult case and just one of the reasons I was so excited to talk with you both about it is it does, I mean this is a very, very difficult case. The other driver has the right of way, I guess your client is taking the right of way. No seatbelt. Tell us a little bit about pre-suit settlement negotiations. How much coverage did the at-fault driver carry?

Part of the reason this case went to trial is the excess aspect to it. So it was only a $25,000 policy and the demand was made and when the demand was made, all the initial ER bills, there were two fairly expensive visits, a little bit of follow up after that. It was early in the process, but the police had done the full investigation by that point. So we knew the speed at the time the ban was set and bomb adjuster. Alright, yes, the plaintiff has a stop sign, but our guy's going way, way over the speed limit and look at these damages, not just the bills, but it's a brain bleed. You would think a reasonable adjuster and especially it's only a 25,000 minimum state limit policy.

Who is the insurance here? I'm with you. How do they not just pay

Liberty Mutual?

Okay,

So once they denied the claim, it's kind of one of those things, a case like that is just, I'm sure this is your experience as well. It's just a lot more likely to need to be tried and see where the chips fall. Right.

Did they ever offer the policy pretrial? Yeah,

Early on after it was filed.

Okay. And again, kudos to both of you because I'm hearing you file. They say, oops, we made a mistake. Here's the policy, and your response is too late, too bad we're going to trial. Is that accurate?

After a long discussion with our client about how much of a gambler do you feel like being that kind of thing. Obviously that's the discussion and I certainly understand any client in that situation that wants to play it safe given all the risks going to trial in such a situation. Right.

And let's not let Liberty Mutual off the hook. They expose their insured recklessly to damages on a $25,000 policy. That seems pretty shocking. And maybe I'm wrong, what do I know? But it seems pretty shocking.

It didn't make a lot of sense to us, but here we are. Here we

Are. Okay. So who was the defense on the case?

And I've been talking a lot, Pete, do you want to

Sure. It was Brendan Friedman.

Okay. And your judge. Let's talk a little bit about the judge as well. It was Judge Stout out in Adams,

Judge Stout, who I believe is pretty new. She's very young and she's very nice.

So tell us a little bit then about overall, how did she handle trial in the sense of did she let you try the case? She's a newer judge kind of step out of the way and didn't micromanage or is she a micromanager type of judge?

I would describe the trial process as collaborative. Brendan Friedman is a good lawyer. Mike has tried cases against him in the past, so they have an idea and understanding of how they both work and he's a good lawyer, but he's not one that's going to try to get your way and object over every little thing. There were very few objections in the trial and with the group and Liberty Mutual brought three or four other people with them to trial. So they had a whole team in their corner along with the defendant. So they put in the resources to defend the case, but at the same time they weren't super adversarial during the process. And that was the same with the judge where she allowed us to work together and she understood that we had experience with that defense counsel and she let us work together to proceed smoothly. During the course of the trial,

How many days did the trial take?

What was it We, it was planned for three, four days. It was three days. But then they elected not to bring two of their experts. They told us that on Monday evening. So essentially we closed our case on Tuesday and then closing statements or closing arguments were on Wednesday morning and the jury was out for two hours maybe It was very short.

They came back pretty quick, which worried me.

Scary. Yeah. So they have two experts. They've got accident reconstructionists and medical expert, right?

Correct.

Correct. Any idea why they chose not to call them? I'm especially surprised they didn't call the accident reconstruction expert.

That report, even though I lost my Shrek motion, was fertile ground for cross-examination, the most useful opinions to them. So their reconstructions had some criticisms of the actual download of the data. So maybe that was where they're going to make their best. Two things there was that. So a couple criticisms about procedure for downloading the data. Was the software a little bit old they were using? I don't think it was, it's just old at the time the trial was going on. It was the current version when he pulled it. But anyway, and there was an opinion about where the crash happened, we didn't focus too much on that. But the weird thing, not only did the defendant step on the gas, but he crossed multiple lanes of traffic going out and either struck our client in the dedicated turn lane media or maybe even the southbound lanes.

So there's a whole opinion about the point of impact, which let's be honest, Pete and I didn't care about that. I didn't even bother 7 0 2, that opinion, let him have it. But then I did attack his opinions about what he would probably categorize as sloppy police with the download, but he did this whole reconstruction and neglected to you knew how fast our guy was going and never gave a speed for the defendant. So the most important issue in this whole reconstruction, you didn't bother to do the speed of the defendant. My guess is that's why they didn't end up calling their expert.

From what you're saying, it sure seems wise of them not to have called the expert. Let me ask you this. So you had punitive damages on this and that may be a surprise to a lot of listeners. What was the argument for punitive damages? Just strictly speed.

I guess there's two components to this. There's the motion side of things and then there's what the jury thought was important and the argument from the jury. So I think probably in Colorado you need a little bit more than just speed to be successful on one of these. So our motion was speed, of course, excessive speed, but also at night in the presence of other traffic with this aggressive passing, maybe even a road rage type situation, all those factors considered together. There's an old case from the sixties that has all that which bases the motion on. I have tried multiple times to get a pure, not pure speed, but a non DUI non drag race IMP punitive damage motion granted. And I usually lose that motion. I had a very similar case that went to trial in Denver County in front of Judge Engel Hoff.

I lost that motion. Now the difference was I didn't have crash data saying how fast the defendant in that case was going. But every other aspect of it was very similar to ours was I had three witnesses. This guy was driving really fast. Some of the witness statements are kind of funny. I had a guy that he was driving like a douche was in the police report in quotes is exactly what's the witness statement. So three different people. And so I don't know what this guy was not drunk, but I've lost this motion before. And in reality it shouldn't be that high of a bar to amend. All you got to show is that a reasonable jury could award punitive damages. It's just in this practice we see it in DUIs all the time, but not other drag racing, I guess. And that's really about it. Your experience may be different, but at least that's been mine.

Mine as well. It feels like the bar is unnecessarily high just to submit the claim to the jury as opposed to just letting juries decide. Michael or Peter, which one of you, I'm assuming that somebody took the defendant's deposition? I

Did.

Michael, as part of that, did you intentionally strategize what types of admissions you were hoping to obtain in the deposition for use in moving to amend for puny? Or did you not really go there in the deposition?

I think our timing was, I think I'd already won the motion by the time that at least the motion had already been filed at the time the defendant's depo was taken. I mean, all depositions should be like this, but it was geared towards trial testimony, right. It was also always the case. There's a discovery component to it. There's a lot of things I didn't know. I had no idea what he was going to say. This passing and the guy yelling at him, that was all new information that wasn't in any, his body cam interview with the police was very short, so not much useful there. So the best admission we got at, he had to be at least slightly reasonable. So what'd he say, Peter? He thinks he was going 50 when he hit the gas When he first saw our guy?

Yeah, he saw our client. He was going 50 at that point in time and then he hit the gas, but he was driving a 2000, God, what was it, a 2000 Saturn

Saturn. So

He strongly implied that he didn't even think his vehicle could get up to 69 miles per hour. Right. So he never outrights not going to lie.

That was my reaction too.

Obviously we didn't have the data recorded. It would be a totally different case, but he never quite disputed that. But at the same time, he was strongly implying that he wasn't going that fast.

And Peter, I think that I heard that you handled the medical piece of the case, correct? Yeah. Did your client have any ongoing and cognitive issues and is that something you really explored in trial or did you just sort of leave it out there for the jury to make their own conclusions on

A little bit of column A and a little bit of column? That was another tricky aspect of our case. We had $173,000 in economic expenses, but that's essentially two visits. He went to the hospital one time and that was $130,000. Went to the hospital again, that was about $45,000. And then three follow up with the neurologist, the last of which was two weeks before trial. And we're talking about the span of basically two years. So very, very little treatment given the severity of his injuries. So we had to walk the balance of he's really struggling, he's having a hard time with, but he never really went back to the doctor. And so he also didn't work at the time of the crash and hadn't worked for a long, long time. And so we didn't want to get too much into that about the effects that it had on his life.

And so tried to navigate around that by focusing on one of the emotional aspects for him, which he was very close to his stepfather. His stepfather was an older gentleman who died about a month after the crash, and that hit him hard. So that emotion was something that we brought up and we talked soft sell about how it had been affecting his life. But I think what was really helpful for us is the jury saw that they saw it from him on the stand, especially when defense counsel was cross-examining him. And he wasn't going really, really hard, but he was going pretty hard at our client. And our client, as you know, with people who have suffered head injuries, they tend to get focused on one thing and it's hard for them to get off of that. And so he kept harping on our client telling him, isn't it possible that you're wrong? Our client says, no, it's not possible. I'm not wrong. There's no way I could be wrong about this. And I think defense counsel thought that he really had pinned down our client onto something that he shouldn't be saying. But in speaking to the jury afterwards, the jury just said, we felt bad for him. We felt like this guy had a head injury and he is up there on the stand and he is struggling with these questions. And so that was very helpful for us.

And real quick, yeah,

Please,

Neuropsych was not an option for us in this case, if that's one thing we're wondering. Yeah,

Yeah. Well, one of the things that I'm hearing that I feel like listeners could take from this is the danger of being too aggressive with a witness on cross. Because I'm sort of hearing your client sounds likable, he's up there fighting defense lawyers, getting aggressive on somebody that has a brain injury. How did the defendant present at trial? Likable.

Very flat affect, I would say.

Yeah, I want to hear both of your opinions on this. So Michael, let's start with you and then Peter, I want to hear both of your opinions on how you think objectively defendant presented.

Well, I think we probably see it about the same way, but yeah, he had a very flat affect, just not particularly personable. Certainly didn't bond with the jury, didn't come across as a villain. Sometimes you do get, especially some DUI and this guy's had four DUIs or something, and the jurors all said at the end, nothing against your guy. Even though we awarded punitive damages, it didn't seem like they even thought too hard about doing it. It was like the foreman at the end said, they went through all the other damages and then he just said, well, how much are we going to award for punitives and one round and got a number for everyone and divided it, added it all up and divided it by six. That was our punitive damage award. So it sounds like there wasn't even a discussion about whether to award them. It was just how much.

Wow. Okay. Fascinating. Peter, same sort of reaction on how the defendant presented?

Yeah, Mike's absolutely correct in that, and I was there to witness Mike's cross of him and Mike did not come in very hard on the guy at all. He was understand about it. I think that does make a difference. He was the type of defendant, whereas Mike says he wasn't a villain, so he wasn't fighting Mike on the statements very hard. But if Mike had started to push a little bit too hard, I think the jury would've almost felt sympathy for the defendant because of just his nature. And we never got to that point. Mike walked that fine line of getting him to admit to some things. Obviously he's not going to admit that he was doing 69 miles per hour two seconds before the crash, but he's admitting stuff that was helpful without making it seem like, oh, woe was me, feel sorry for me jury. So that was a great job by Mike on the cross.

Did he accept any response? Did you ask him on the stand, do you accept any responsibility for this crash? Or was he like, I am not at fault.

He is not at fault. He was asked, is there anything you could have done to have avoided this crash? I don't know. Well, okay, but if you'd been going the speed limit, the crash wouldn't have happened, right? I don't know if you had just stayed in your lane because you at least hit 'em in the median, your lane was clear If you had been blindfold, I didn't say that the blindfold department, if you had just stayed in your lane, gotten the same speed, the crash probably wouldn't have happened. Right? I don't know. So that worked against them, I think. And again, like I said, the jury, it's tough sometimes, of course the parties aren't there anymore, but they still don't want to be too rude about a client in front of their other lawyer. So they all said nothing personal against this defendant. I don't think they liked that too much though.

It makes sense. It makes a lot of sense. One other interesting aspect I'd like to touch on to the extent you all feel comfortable is I understand that you were contacted by defendant's personal counsel before trial, and did that impact anything before trial? So you get contacted by personal counsel. Did anything substantive change in terms of the trial presentation strategy or anything after talking with defendant's, personal counsel?

I will say as far as trial strategy, those kind of things, nothing changed, but there is a difference, and I'll have to go to the not the way back machine, but my last successful excess case was about, I don't know, three years ago or something. And that particular defendant had no interest in hiring personal counsel, didn't care about the process, and that makes a difference for part two, stage two, right? The excess case, if someone's not willing doesn't care about a judgment against 'em, let's say you're a young kid, for example, you're never going to go higher, even if it's a very reasonable priced personal counsel just to help you out. If they're never going to sign a basher agreement or cooperate in the second case, then that second case becomes much more difficult. So the one thing I will say is the fact that this defendant hired personal counsel made it easier decision to go to trial for us. But as far as trial strategy, I don't think it changed anything.

Fantastic. One question I had is, did I hear you, $75,000 noneconomic damage award, is that right? Yes. What was the strategy for the ask for your damage model of non economics versus economics? Either Peter or Michael, I don't know who came up with it. It worked, whatever it was, it worked. You got three times the policy and non economics. What was the strategy there?

We both closed, but this was my part of the closing, the rebuttal, and the jury had not asked, I can't remember. The last trial jury had no questions throughout the course of the entire trial, not one, not to the cop, not to anybody. So that left us, even though we felt good about who we had on our jury panel, didn't give us a lot of clues what they were thinking. And maybe we as trial lawyers overthink that. Anyway. Oh, look, if we get the question, how much did insurance already pay? Yeah, okay, that's a bad question, but we can think too much into some clarification. They may ask for the doctor or the investigating officer or something like that. So the ask was 200,000 for non-economic damages. But hold on, hold on. Look, yes. The defendant has the burden of proof of showing that the lack of the seatbelt contributed, and they didn't even call any experts. They haven't shown anything. But come on, we all have common sense here. And normally I'd ask you for 200,000, I think again, common sense a hundred makes sense for this line. That was the ask.

Wow. And so they took that, so you sort of concede the reduction there and then they come back and give you 75% of what you asked for.

And the jury said at this point, when we talked to the jurors or two of the jurors afterwards, we had already won. But so I knew things went well in there, but at the time I didn't, obviously we're closing. We've had no hints. But one of the jurors said, well, we decided not to give him the full amount. When they said that, I kind of realized that I must've been the authority as far as setting out the damages and closing because the full amount, I'm assuming was the 100 that I asked for, if that makes sense.

Oh, it makes perfect sense and it causes me to think sometimes we have these fears that we're going to ask for too much and lose credibility. Then there's always the fear of not asking for enough on non-economic damages. In my mind, I'm sort of thinking your client didn't do a lot of treatment, had some other things going on in his life. So was it sort of not for all intents and purposes, was your client not experiencing ongoing impairments from this crash that you were wanting to embrace? He

To this day has issues. He has concentration issues. He is way better than he used to be. And by talking to the wife people, self-reporting on these brain injuries can be real suspect, as you know. So the problem was the presentation or neurologist wasn't willing to really talk about permanence, especially neurologists. They're always living in this optimistic world and really hope all these folks are going to get better. The best he would give us was these things can be permanent long lasting, but we don't really know until we start doing neuropsychological testing. Our client had some background issues that just would've been very damaging for our case, and there's no way to avoid it with either maybe lost wages and neuropsych testing in this one. So we just kind of had to go with what we got on permanency, and at least my experience is permanency is the hardest one in a non-punitive damage is case to get them to award. Also, jurors want to feel like our clients are going to get better, and if they put a number on that, that legally he's hurt for the rest of his life. And that's sometimes the tough hurdle for jurors to overcome. But I'm the first to admit our own doctor wasn't very strong on him, so I did my best. I did ask for money for permanency. We can't come back. This is our one shot, that kind of thing. But it did not work.

I think maybe the last question that I have that's been popping in my mind is did you have any fights about the reasonableness of the build amounts? Did you guys use aed? Was there a stipulation? How did that play out?

One attack on this case would've been to hire a billing expert, but they didn't go that route. Those type of experts are vulnerable to the Old Trek motion, that kind of thing. And that's not a route the defense chose to go down and there was no attack on our bills. Our client testified to the bills with no counter evidence. I mean, those are the bills. The bills themselves. There's some evidence that they're reasonable, right? Is that Kidwell Lawson? I always forget which case. Lawson.

Lawson. It's the one you just cite every time. When you can't think of the case name, you're like, judge, it's Lawson. Lawson. Be Safeway every single time. Well, I just want to thank you both for coming on. It sounds like what I'm hearing, this sounds like a really fun sort of low stress type of trial that you didn't really have a choice. You have to go try it. And it was quick, which I love the quick trial, and I have found sometimes that Adams County jurors are little harder to award decent sums of money on, and you really got a fantastic result. So I'm inspired and excited to get back out to Adams County. So congratulations to you and your clients on an amazing result. Any last sort of words of wisdom on taking a case? I'm not even sure that case would make it through intake, honestly. What are your thoughts? I mean, that is a tough, tough case. Any last parting words of wisdom? Michael, you got anything for us?

Well, on this one, for something like this, you do. I mean, new evidence can come, always come in and change your opinion on it, but we knew if we're going to take this on, we're going to end up in a courtroom someday on it. And that was our discussion. Are we okay with that? How much is it going to cost to get there? Those kind of things. And plus, this is our first trial at the new firm wanted to come out the gates. So it's a decision. I'm glad we made, but we live in a world where sometimes those type of decisions are risky, and you've got to have the right kind of client willing to go on the ride with you for sure. And I understand when they're not. I certainly understand that to avoid that risk. So we had to have a lot of things kind of fall into place for this one.

Peter, any last parting words of wisdom or advice for our listeners?

Well, I think as trial attorneys, especially after you've been doing it for a period of time, you can get bogged down of the details of the practice of law and what everything means. But not everything that we're doing makes a lot of sense to the jury and they don't even understand a lot of the time. I remember during this trial, there was a portion where defense counsel thought that he had something within terms of the medical records and that our client can remember whether there was an extra visit that wasn't disclosed and he was looking at it for an opportunity for a mistrial, and the judge used white noise to talk about all the objections. So Mike was defending that portion of the trial. So he and defense counsel kept going up to the judge and talking about it in white noise, and I'm looking over at the jury in the same boat that they are.

I'm not hearing what's going on between the judge Mike and defense counsel. And they went two or three times. They went up there. And I think defense counsel thinks that the jury thinks that there's something suspicious going on here. They're holding back something. And then when we talk to the jury after the fact that just thought, oh yeah, that was just something that the lawyers do wasn't a big deal. So that sort of thing where we think that they're understanding something, it's not always the case. Sometimes they just think, Hey, that's the natural practice of law and it's not really a big deal. So something for us to keep in mind that this is a jury made up of our peers, but peers that are probably not other trial lawyers and the things that we think are important are not necessarily important for them.

Wow, that is great parting wisdom. Michael. Peter, thank you again for coming on and sharing your experience. And congratulations on the new firm. I have no doubt and can't wait to hear about your many continued successes. So with that, everybody, until the next one, we'll catch you out there and keep fighting for justice in the courtroom. Thanks everybody. Thank

You. Been a pleasure. Thanks.

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