RESULTS DEPEND UPON FACTS OF EACH CASE; SIMILAR CASE RESULTS NOT GUARANTEED
January 1, 2007

NO, VIRGINIA, YOUR PERSONAL-INJURY AWARDS ARE NOT EXCESSIVE; YOU ARE NOT A "JUDICIAL HELLHOLE"

No, Virginia, your jury verdicts for injured men, women and children are not excessive or "out-of-control."

The American Tort Reform Association -- "ATRA" -- has published its list of "Judicial Hellholes" of 2006 ... and, Virginia, you are not on its list. You are not even an "Honorable Mention," and you are not even on the "Watch List." One sure way to get on the list? Allow runaway jury verdicts.

No doubt Virginia's absence from this list will come as a great surprise to Virginia jurors who long have been besieged with the cries of ATRA and the insurance companies and corporations to the effect that jury awards for the injured are "everywhere" out-of-control.

The insurance companies have dropped tons of propaganda over the landscape of America: propaganda that tells prospective jurors that every plaintiff is a malingering fraud and that every plaintiff's lawyer is an "ambulance-chaser" ... propaganda that does not tell prospective jurors that the insurance companies' media blitz over the past twenty (20) or so years has saved them untold millions of dollars that under the law should have gone to compensate millions of victims of serious injury and wrongful death.

Virginia jurors still believe -- against all the evidence -- that runaway verdicts for the injured are rampant in Virginia and that they must take corrective action to even the scales of justice. Yet jurors understandably have no knowledge of actual jury verdicts in Virginia because the insurance companies that tell them of the horror stories of isolated runaway verdicts do not tell them the rest of the truth -- of the flood of inadequate verdicts.

How do we know that jurors still believe that runaway verdicts are rampant? First, jurors tell us so after their verdicts. Second, ask a juror how many times he has heard of an inadequate verdict. His response: "never."

Virginia jurors still believe that plaintiff's lawyers are the promulgators of all of the lawsuit abuse. Yet Virginia judges and trial lawyers know that frivolous defenses in Virginia are at least as common as frivolous lawsuits. Ask a juror how many times he has heard of a frivolous defense. His response: "never."

Virginia's not being on this list of "judicial hellholes" is no surprise to Virginia judges or the trial lawyers for the plaintiff and defense. Each of them knows that an injured plaintiff in Virginia has one hand tied behind his back and two strikes against him when he first comes to bat in court. Candidly, this does not apply to victims of medical malpractice in Virginia, who have two hands and two feet tied-up, and who can be seen limping-up to the plate and then simply heading back to the dugout without taking a swing.

What can the Virginia juror do about this? Simple: rid yourself -- honestly rid yourself -- of the insurance companies' propaganda ... and simply listen to the facts of each case and follow the law in that case. This guarantees favor to no one ... except "Lady Justice." The law does not provide for your allegiance to the insurance companies' self-interested propaganda. The law provides -- no, demands -- your allegiance to Lady Justice.

December 19, 2006

YES, EVEN IN VIRGINIA -- GOOD SETTLEMENTS OF PERSONAL-INJURY CASES -- A PROVOCATIVE PRIMER

If you are a personal-injury lawer in the conservative state of Virginia or elsewhere in the land of tort reform, this is my admittedly provocative view -- employed by my firm over the past six (6) years or so -- of how to obtain just personal-injury settlements for your clients:

1. Don't just dabble in personal-injury cases; the insurance defense lawyer is too good for that, and he will only smile as he runs over you while you are dabbling.

2. Study and read about how to be a better trial lawyer. If you don't enjoy much of what you are reading, try something else (not just another book; try another line of work).

3. Select good cases -- this does not mean: select only those cases that are "sure winners;" he who does not take risk is not a real trial lawyer.

4. Investigate the facts, and keep investigating: a) it's fun; b) the insurance companies are great at doing a lousy job at this; c) facts (if wound into a good story) win cases.

5. File suit in every case (with extremely rare exceptions; I told you this would be provocative). You have little leverage over insurance companies without litigation. They don't really ever pay you "voluntarily." They only pay justly you when trial is closing in on them and you are an imminent threat to their money. When they pay you "voluntarily," you have been had.

6. Cerebrate about your case and your client. In the beginning. In the middle. In the end. About the good believeable facts, and the bad. If you don't cerebrate about your case, one among many serious casualties will be your ability to sincerely, powerfully and spontaneously talk with the jury in closing argument. Juries know when you have not lived the case, and when you don't know your client and what her injuries mean to her and her life.

7. Don't attempt settlement until the insurance company smells trial in the next room, in its back pocket, at its bottom-line.

8. Give the insurance company a firm deadline for settlement, and stick to it (unless the client changes his mind). Pre-trial settlement deadlines -- if enforced by your firm over much time and many cases -- pressure all sides to hear an early version of "the-jury's-knocking-on-the-door," and thus pressure the parties into staring headlong into the possibility of a much worse result at trial.

9. Never, ever "beg," "keep after"or try to cajole an insurance company to settle. The appearance of weakness is weakness. Relax. It's their money they're about to lose.

10. Try cases to verdict and get good results -- insurance companies do not respect an attorney with a track record of not going to verdict.

11. Try cases to verdict and get good results -- your track record precedes you, and each good "We the jury find our verdict in favor of plaintiff and award damages in the amount of ..." is wind at your back in your next effort to settle.

12. Try cases to verdict and get good results -- the insurance companies' reasonable fear of a "runaway" verdict or a too-sympathetic jury is a very, very good friend of yours.

13. You cannot worry -- at all -- about your own financial state or about turning down substantial sums of money. You and your client never had it to lose. It's not your money. Money-hungry lawyers are scared lawyers, not great trial lawyers willing to risk.

14. Be honest with your client, not proud or self-indulgent. Your client needs to know your unvarnished professional opinion on settlement and the chances of reasonable-high and reasonable-low verdicts at trial, not your self-indulgent invective about how unfair are the insurance company, insurance defense counsel and Virginia juries.

15. Be completely ready for trial. Completely ready. And ready early. Many a bad verdict results from the assumption of settlement; many a bad settlement results from not being ready to try your case.

16. If the case does not settle within your deadline, try the case, and try it with focus and determination until you hear the knock on the door and the foreman speaking. Then put your arm around your client and feel good about what you have done.

December 14, 2006

GERRY SPENCE'S FAMOUS FINAL PLEA IN CLOSING ARGUMENT

If you have been a trial lawyer for long, you likely have heard of Gerry Spence's famous final plea in just about every closing argument . From his latest book, Win Your Case, Spence speaks to the jury on behalf of little Polly:

Before I leave you I want to share with you a story I tell in nearly every case. It's about transferring the responsibility of the case from us, on behalf of little Polly and her parents, to you, the jury.

It's a story of a wise old man and a smart-aleck boy who wanted to show up the wise old man as a fool.

One day this boy caught a small bird in the forest. The boy had a plan. He brought the bird, cupped between his hands, to the old man. His plan was to say, "Old man, what do I have in my hands?" to which the old man would answer, "You have a bird, my son." Then the boy would say, "Old man, is the bird alive or is it dead?" If the old man said the bird was dead, the boy would open his hands and the bird would fly freely back to the forest. But if the old man said the bird was alive, then the boy would crush the little bird, and crush it, and crush it until it was dead.

So the smart-aleck boy sauntered up to the old man and said, "Old man, what do I have in my hands?" And the old man said, "You have a bird, my son." Then the boy said with a malevolent grin, "Old man, is the bird alive or is it dead?"

And the old man, with sad eyes, said, >"The bird is in your hands, my son."

And so, ladies and gentlemen of the jury, "the case of little Polly is in yours."

Spence tells us: Let go ... Let the lion out ... Trust the jury ... Give them the responsibility ... Give them the power.

December 1, 2006

TR SPEAKS TO THE TRIAL LAWYER FACING BATTLE OR DEFEAT

A few weeks ago I learned that one of Virginia's most distinguished personal-injury trial lawyers had suffered a bitter defeat. We need folks to continue to make the good fight, and I wanted to let him know of my respect for his courage in fighting the good fight against the odds.

I did not have far to look for my inspiration. I looked to my office wall and saw the fighting words of the indomitable Teddy Roosevelt that have sustained me as I approached a battle or reeled from a stinging defeat:

It is not the critic who counts, not the man who points out how the strong man stumbled, or where the doer of deeds could have done better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood, who strives valiantly, who errs and comes short again and again, who knows the great enthusiasms, the great devotions, and spends himself in a worthy cause, who at best knows achievement and who at worst if he fails at least fails while daring greatly so that his place shall never be with those cold and timid souls who know neither victory nor defeat.

There are those in our profession who never really enter the arena, or who enter the arena only when victory is assured. We need not be among these "cold and timid souls." Engage the battle. You may lose the battle. But keep fighting the good fight -- you will win the war.