All in all, I had a great experience trying my first civil jury trial as lead counsel. I had a chance to hone some of my trial-craft, and let’s face it, anyone who knows me knows I love public speaking. Heck, I love private speaking. Some would say I just like to hear myself talk…
My client was injured in a relatively minor car wreck in the fall of 2011. He took a pretty good hit to the rear of his vehicle when he was stopped at a red light. The hospital ER said he had whiplash. A few days later he went in to see his doctor, who prescribed pain medication/muscle relaxers, ordered a series of MRIs to his cervical, thoracic, and eventually his lumbar spine, and sent him for chiropractic care. Not excessive, but two rounds of a several weeks each, for a total of 8 weeks.
You might be thinking, “why did this case go to trial – seems pretty straight forward, it being a rear-end collision and all.” At the heart of every insurance claim is an analysis. The adjuster considers not only the liability of their client compared to the liability of the injured claimant, but the venue. The venue the specific county where the accident occurred. Each venue has a rating, a scale, ranging from Plaintiff-Friendly to Defense-Friendly. The venue mostly tells an adjuster how willing a jury is to award big numbers for things like pain & suffering, mental anguish, loss of consortium, loss of impairment, etc. But that’s not all the insurance adjuster considers. The most important factors are the demographic and individual characteristics that the insurance-defense attorney can exploit at trial. They have no bearing on who was at fault. They have no bearing on the injuries. They have no bearing on the medical bills. These factors are used for one purpose – to deny justice.
Unfortunately, my client had three of these factors.
The first, was that my client had been charged with a felony drug case five years earlier, which included a secondary charge of tampering with evidence. It seems he threw the baggie of drugs out of his car window when he was pulled over. Oops… He pled guilty and thought he had moved on with his life, but he would find out he was wrong. You see, felons are second class citizens. Not only are there civic repercussions for being a convicted felon, but in the eyes of big insurance, their claims are less valuable, too.
The second, was that my client was fat. That’s right. Over and over during the trial, defense counsel took to pointing this out, quoting the medical records where his doctors noted “Morbid Obesity”. 5’10” – 275lbs. I’ll admit, he was a big boy. He was thick. He was built like a wrestler. He was a furniture mover, so you might expect he had some weight to throw around. The Fat-Man defense had reared its ugly head.
The third, and probably the least effective attack on my client was that he was an outsider to the community. On paper, the Houston attorney who came in to try this case saw that the plaintiff lived in Burleson County (or, Burlington, as he continued to mis-state the whole way through the trial!), and his client, the defendant, lived here in Brazos County (or, Braw-Zohs, as he continued to mis-pronounce the jurors’ home county all the way through trial!) That’s right, the “yer not from around here, are ya” defense. Well, after that little attack in opening statement, I went took my client on direct and offered the following testimony:
Q Where do you currently live?
A In Caldwell, T exas.
Q Where were you born?
A Bryan, Texas.
Q Where did you grow up?
A I grew up in Bryan, Texas.
Q Where did you go to high school?
A Bryan, Texas.
Q Do you consider yourself a member of the Bryan, Brazos County community?
A Yes, sir.
Q How did it make you feel when [Defendant’s] Houston attorney came in here yesterday and called you an outsider to this community?
A Made me feel awful.
Q Why is that?
A I consider myself a — you know, a part of this society.
(A juror would later scold the defense attorney right in front of me, saying “you need to learn a lesson. You don’t come here, into our community, and tell a person who was born, raised, and now works in our community that he is an outsider, just because he lives across the county line, just 20 miles from this very courthouse!” — WIN!)
The way I chose to deal with these known issues, these immaterial facts, these common attacks on my client based completely in bias and prejudice, was to nip it in the bud.
In voir dire, my opportunity to talk WITH the potential jurors (venire panel) before trial, I asked each of them if they could set aside their personal biases, and provide justice for someone, for example, with a criminal record. I asked them if they could provide justice for my client, or if they believed a criminal conviction removed him from the pool of people to whom this duty was owed. They said they could, and the jury was seated. I didn’t have a perfect jury, but it was MY jury.
As expected, the defense counsel lambasted my client on cross-examination for his nefarious conduct (his only criminal conviction(s), ever). He was accused of fabricating/tampering with the evidence in this case, as he was convicted of doing in 2009. Defense counsel went on to harp on this again in closing arguments.
Again, he called my client fat. Repeatedly.
And again, he tried to draw on the sympathies of the jury for his client, a LOCAL school teacher, as opposed to my client (to his credit, he did NOT use the word outsider again, which he did in opening statements.)
I rebutted. At the end of my rebuttal, I simply reminded the jury of their earlier promise, stating:
“JUSTICE FOR ALL.”
When my boss later heard of my remarks, he could not believe it. He challenged whether or not I really said those words, or if I just said something to that effect. Through the marvel of real-time reporting, I have the proof – the transcript. It confirms, at 11:26:21 a.m. (CST), I closed, stating simply: “Justice for all.”
And that’s why I was there today. That’s why I was in trial this week. That’s why we have courts, judges, and jury duty. That’s why I love my job.
Through three days of trial, hearing from the responding officer, the treating chiropractor, the defendant, and finally my client, the jury got the case. But not all of it. After the close of Defendant’s Case in Chief, I moved for, and was granted, a Directed Verdict!
Well, at least a partial directed verdict. The jury still had to award damages.
As you might expect, juries in Brazos County are not exactly plaintiff-friendly. They do not award big damages. In fact, I was warned that although the judge granted the directed verdict, it was still very possible to “lose” the case. What’s a win on liability if the jury just turns around and gives pennies on the dollar for the medical bills? Unlike some cases in my docket, the defense had actually made an offer of settlement. The offer was low. Very low. It wouldn’t even pay the medical bills off. You see, my client was only a second class citizen. State Farm didn’t think he was highly valued in our community. State Farm didn’t think Brazos County jurors owed him full justice. They were trying to get off cheap. He’s a felon, after all.
With the sole question of damages in front of the jury, they had to only decide what amount of money, if paid now, would fully compensate the plaintiff for the following elements of damages:
Past medical bills __________________
Future medical bills ________________
Past pain and mental anguish _______________
Pain and mental anguish in the future _______________
While I would like to say we got everything we asked for, we did not. But, we were successful in getting a Brazos County jury to award the full amount for the past medical expenses, plus additional damages for future medicals. Although the recovery for pain and mental anguish was much smaller than what I hoped, the jury came through for me and filled in at least SOMETHING on both past and future pain.
At the end of the day, I made my boss proud and my client happy. But most importantly, I ensured Justice was still available for all.