EP04: Nurturing a client’s courage

Episode Notes

Transcript

Christine Byers:

Welcome to the Case Doctors. I’m your host, Christine Byers of Simon Law, and I’m joined by the case doctors, John Simon and Alvin Wolff. Now, between them, they have more than 80 years of experience as plaintiff’s attorneys, so there really isn’t a scenario they haven’t already encountered on a case and figured out how to handle it or how not to handle it, as John says. Now, they’re offering you the chance to tell them about the various problems or issues that are coming up in your cases and hear how they would handle it. But first, let’s turn to some of the civil cases making headlines and hear what the case doctors have to say about them. Our first case brings us over to Florida State Court, involves a jury that awarded a mother and daughter $17 million in damages for injuries they sustained in a 2022 apartment complex fire.

Their conclusion was that they were negligent in causing their injuries from a fire that erupted after an aerosol can that was left in the oven’s broiler drawer exploded while the plaintiff was cooking.

John Simon:

Well, I got a lot of questions for that one. I’m wondering how long they were living there and who was the renovator? I mean, it sounds like if it was aerosol can, it might’ve been paint. And it seems to me the company that did the renovations should be part of that, or maybe they were a part of it. I don’t know.

Alvin Wolff:

They must’ve had a really good lawyer on that case because why wouldn’t they ever check the broiler drawer anyway? I mean, have they ever used the oven before? I don’t quite get that. Yeah, I

John Simon:

Guess that’s another thing too, is how long were they there? But I’m sure the jury got to hear answers to those things.

Alvin Wolff:

If it’s foreseeable, it’s preventable. And they probably had a duty when they were doing whatever they did in the broiler drawer to make sure it was empty.

Christine Byers:

All right, gentlemen. And our other case takes us to Brooklyn where a student at a private school said an insurance company is on the hook for a $9 million settlement that he entered into with the school to resolve sexual abuse claims.

John Simon:

So it sounds like maybe because they denied coverage, maybe it’s like a 065 agreement here in Missouri where maybe they signed a consent judgment or something like that. But usually when that happens, usually it’s a judgment, not a settlement.

Alvin Wolff:

And it would be limited to whatever available insurance coverage there is, right?

John Simon:

I would think so.

Christine Byers:

Yeah, absolutely. Have you guys had any experience with insurance companies negotiating in bad faith?

John Simon:

Oh yeah.

Alvin Wolff:

Not since yesterday.

John Simon:

And I think the insured, the first thing they want done is they want it to go away. So that doesn’t surprise me at all. And I see that in … There’s hardly a case where I don’t see that, that there’s some issue with the carrier.

Alvin Wolff:

But you would think in a case like this, there’s going to be an exclusion in the policy, which gives the insurance company a reason to deny coverage.

Christine Byers:

It’s time now to turn to our email inbox for the cases our viewers have sent in for the case doctors to diagnose. “Hi, John and Alvin. I have a client who was rear-ended and is now claiming significant neck and back pain. The issue is that their medical records from the ER visit right after the crash state they had “no acute distress” and “denied pain or injury.” However, they started treating for pain about two weeks later. The defense is already hinting that this delay undermines causation. The client insists they felt pain right away, but didn’t think it was bad enough to mention at the hospital. Have you dealt with a situation like this before? Any thoughts on how to explain the delay without hurting credibility?

John Simon:

Well, I don’t think not having pain immediately and complaining about it at the accident scene is that big of a deal. As long as shortly after they start undergoing treatment and is it one visit or have they started going and the medical records will indicate the extent of the injury more so than what they say at the scene. I mean, we talked about this, I think earlier, that the adrenaline’s flowing at the scene, you’re thankful that you didn’t get killed. Years ago, I was rear-ended on Highway 40 here in St. Louis, and it was a pretty good clip. It was probably somebody going 30, 35 miles an hour. And I was sitting in stop traffic. The car behind me got hit and then ran into me and I didn’t feel a thing. I just didn’t feel a thing. Got up, I stood on the side of the highway.

My car was damaged enough. It had to be towed and I wasn’t feeling any pain. And then fast forward later that night, I was younger at that time and in a little better shape. I was playing basketball on whatever night, Tuesday nights, and I had my bag with my basketball stuff and I was just putting my shoes on and all of a sudden my back started going crazy. I couldn’t … I mean, for the next two weeks, I was having horrible back pain, but I didn’t feel any of it at the scene. And

Then I got a better understanding of how what you’re describing can happen. I just didn’t feel … I mean, you felt a little uncomfortable. I was glad I didn’t get killed, but it was something that certainly was delayed.

Alvin Wolff:

People don’t want to go to the doctor. They’ve got better things to do also. And it’s not an unusual situation where someone says they’re not hurt at the scene. They don’t go to the emergency room. They sit at home, they start to hurt, it gets worse, and finally they go to the doctor and it could be two weeks later. I think you get farther out than that, you’re going to have problems. You’re going to have problems anyway, but hopefully the problems won’t be that bad.

John Simon:

And then really, what is the other side saying? What’s the defense saying that you’re making it up or faking or whatever? Well, if that’s what you were trying to do, you would’ve called an ambulance and taken a ride to the hospital. I mean, the fact that you went home and didn’t complain of any pain at the scene, I think adds to your credibility.

Christine Byers:

Interesting. So you would say that this is not a deal breaker for this case?

John Simon:

Not at all.

Alvin Wolff:

It makes the case harder, but it is not a deal breaker.

John Simon:

One of the things that’s a real problem is fighting the medical records is what I call it where you can’t win. It’s like swimming in quicksand. And I will have clients that will just absolutely swear that I didn’t say that. I didn’t say it to the doctor. And I’m like, “You know what? It’s not going to end well for you.

Alvin Wolff:

” I had a case where my client has had four hip surgeries, has a bone on bone knee, goes to Portugal, comes back, and the chiropractor record says she’s back from Portugal where she was walking 15,000 steps a day. What do you do with that?

John Simon:

Yeah. Yeah, I don’t know. And here’s the thing, we know that there are mistakes and inaccuracies in all kinds of records, medical records, police reports. We were talking about a police report when we were off and my only experience in an accident where the police responded was, it was a rear ender that I had mentioned earlier and I was waiting for the police officers to come and get a statement from me. I was aware of that. They’re going to come and get a statement from me. And I actually asked them, “Do you need a statement or whatever?” And here, a year later, somebody else had filed a suit over the accident and I was asked to be deposed and I was presented with a police report and a statement attributed to me in the report. It was accurate, but it wasn’t my statement. I never spoke

Christine Byers:

To people. But you never said

John Simon:

It? Yeah. And they wanted to clear the highway. It was obvious one car hit another car and drove it into somebody else. But yeah, fighting the medical records, what do you say?

Alvin Wolff:

Well, I had a situation-

John Simon:

What did you do in your case with the woman from … Where was she at from?

Alvin Wolff:

She was from St. Louis and I brought someone in who was with her in Portugal saying she was in a knee brace the whole time. She couldn’t walk three blocks worse versus walk seven miles. That’s a good way to do it. But I had a situation where I got my physical this year and I’m talking to my doctor and he tells me something personal about him and he puts it in my record attributable to me. And most of the time people don’t look at their medical records, but I just happened to look at my record and I called him up and said, “Hey, this was you talking and it’s in my record, so can you please take that out? ” And he did.

Christine Byers:

Well, that’s rather nice of him. So you guys have seen firsthand that it is true when your clients say to you, “I never said that.

Alvin Wolff:

” A hundred percent.

John Simon:

Yeah. This is sort of an extreme case where I was taking the deposition of a young man who, serious case had ran into my client’s husband’s vehicle. He was stopped and he ended up being, he was killed in the accident, a very serious case. And I got his doctor’s records and he had a series of seizures and they were in the records. It was documented. He’s talking to his doctor about the seizures he had because he quit taking the medicine so he could drink. And then finally I said, “Well, are you calling the doctor? Is he saying the doctor’s lying about it? ” And I said, “Let’s do this. Let’s call him.” And it was in the deposition. And I had the doctors talk at his number and at that point he lunged across the table and tried to … My son Johnny was with me and intervened a little bit, but things got calmed down, but he was young guy, a lot bigger and stronger than me, but actually lunged across the table at me.

Christine Byers:

Wow.

Alvin Wolff:

One thing we could do, which I haven’t done with my clients yet, but you got all these organizations, medical organizations that have MyChart. There’s nothing that prevents the client from looking at the record. And if they note an error, send them a note saying, “This is a mistake.” As soon as you have an opportunity, I’ve done that with police reports where there’s been mistakes in the reports. I have my client send a letter to the reviewing officer and say, “This is not right. If the officer won’t correct it, this letter needs to be appended to the report.”

John Simon:

Yeah. And hopefully that’s done well in advance. I mean, obviously before the case gets going.

Alvin Wolff:

Well, if it’s a police report and it’s a car wreck, that’s going to happen in the first month, but I’ll go through the report with the client and ask them, “Is this accurate?” Because a lot of times they’ll even have the cars going the wrong direction.

John Simon:

And the other thing too is nine times out of 10, what it is they’re questioning them about is not even critical or highly relevant to the issue. It’s just they’re trying to show that they’re … It looks worse if somebody thinks they’re lying about it or not being truthful about it than what’s actually in the record. And again, I sure don’t remember what I told my doctor this morning when I went in for my checkup.

Alvin Wolff:

I mean, I was looking at some records. Client’s got 10 broken bones from a car wreck. And when she’s deposed, if this case goes to suit and she said, “I have 12 broken bones.” How are you going to remember if you had 10 or 12?

John Simon:

But it depends. It depends on what’s in the record too. I mean, sometimes there’s something in the record. And here’s the thing too, I don’t care how bad it is, it’s coming in, okay? It’s coming in. And if you know it’s coming in in the case, why make it worse by belaboring it and going over it 15 times? Given the other lawyer, a good skilled attorney, the opportunity to make a bigger deal out of it than it is. If it’s something bad, admit it and move on. Sure.

Alvin Wolff:

You do not want to give the other side oxygen.

Christine Byers:

Absolutely. Onto our next email. Hi, John and Alvin. I’m representing a client in a civil sexual assault case. And while we have strong evidence, she is terrified of going to trial because she does not want to face the defendant in court. The idea of being cross-examined about the incident is overwhelming for her, and she’s now reconsidering whether she wants to move forward. I want to support her, but I also don’t want her to settle for much less than she deserves out of fear. Do you guys have any experience handling this kind of situation? Are there any courtroom accommodations or strategies you’ve used to make a client feel safer and more comfortable in testifying?

John Simon:

Wow, that’s a really good question and an important issue. And I think it takes a lot of client counseling and handholding and explaining, but I think you just need to walk that person through exactly what’s going to happen. I would take them to the courtroom. I do that with clients a lot of times where before they testify, even at the student, they may not testify for the third or fourth day at trial, show them where the witness stand is, show them where they’re going to be seated. But the other thing to keep in mind too is by going after or mistreating in any way, and especially in a case like that, that is the worst thing that the defense can do in a case. And it’s the most helpful thing for the plaintiff. If somebody has already gone through that horrific, emotionally charged incident like that, and then they’re bring coming into trial to testify and the defense is going after them or even the suggestion that they’re attacking them at all, that is going to backfire big time.

If you know the other attorney, that’s a big help too, because you can say, “I’ve had other cases with this attorney.” They’re very respectful, they’re very professional.

Alvin Wolff:

Have you ever thought about just taking your client’s deposition, videotape it, and play it to the jury?

John Simon:

Yeah. Yeah.

Alvin Wolff:

I mean, does that make sense to do on

John Simon:

Something like this? You could do that. My experience is that usually if they’re going to give your client a hard time,

Opposing counsel, defense counsel, it’s usually done at a deposition and not at trial. We tried a case a year ago this month in Central Illinois and it was a rape case and we represented a 13-year-old girl who was raped in a mental health facility for youth and it was that exactly. It was that issue exactly. And again, we went through everything that we had gone through and then she got on the stand and my partner, Tim Cronin, was going to do her direct and it was at a point in the trial where the jury had already heard what happened through other witnesses and they were on the edge of their seats. The one thing I was certain about is there was no attorney on the other side was going to do anything to make her situation more uncomfortable,

But she did phenomenal. I mean, she got on the stand and Tim asked her a couple questions real quick and then asked her about the incident and she was 15 at the time of trial, I believe. She screamed and literally ran out of the courtroom. Tim, who had been working with her, sat in a conference room with her for about 10 or 15 minutes, she came back in, got back on that stand and went through about a 20 minute examination and it was the most unbelievably brave thing I have ever seen in a courtroom. It really was. The jury was locked in on everything that she had to say, but in response to your … We could have done it by video maybe, but the impact that that had was, I mean, it was the high moment of the case. I think it really was.

I know some attorneys that don’t do any prep with their client because they want it to be a little bit more spontaneous. Yeah. Tom Keefe, I think, told me that. You know Tom?

Alvin Wolff:

Sure. I guess you’ve never tried a criminal case because they all want to testify.

John Simon:

“Hey, I’ve missed that you’re trying to-

Alvin Wolff:

They all want to tell their story. Yeah.

Christine Byers:

Yeah. Sure. So Alvin, have you tried the taking their testimony by video and has that worked?

Alvin Wolff:

The only time I’ve done it is when I have an elderly client and I’m not sure if they’ll be alive at the time of trial.

Christine Byers:

Wow.

Alvin Wolff:

Yeah. I’ll preserve their testimony with a deposition.

John Simon:

Now, one thing that we do is whenever our client is being deposed by the other side, I always videotape it. There was an attorney. I represented an elderly woman who was in her late 80s and she had been sexually assaulted in a nursing home by someone who broke in. The attorney on the other side was over the top aggressive. And this attorney actually got into the details of the incident and I think for the sole purpose of- Intimidating.

Christine Byers:

… intimidating

John Simon:

Her. And so I ended up trying the case about a year later. The attorney who had worked it up left our firm. And so I tried it and I had to videotape. And at that time she had passed away. I was representing the estate. And as a matter of fact, this was the first jury trial that I tried. Wow.

Christine Byers:

It was probably

John Simon:

38 years ago, 37 years ago. And I was going to play the videotape deposition, and the lawyer was arguing that I wasn’t allowed to play the videotape because of … We had a mostly female jury in St. Louis County, and that videotape pissed them off, just pissed them off.

Alvin Wolff:

Because it showed his behavior.

Christine Byers:

Alvin, have you had a situation with a client who is just terrified to go in, whether it was an assault or even … I mean, some clients are afraid to face the person they’ve been going after and fighting with for years too.

Alvin Wolff:

Most clients don’t want to go to trial. I mean, I find that a lot of them want the lawsuit, they want the case settled. I mean, you really have to talk to them and work them through and counsel them to let them know that if you don’t have a fair offer, you have to try

John Simon:

The

Alvin Wolff:

Case.

John Simon:

The thing that gets people a little bit more motivated is explaining that do you really want to sweep it under the rug because it happened to you, likely it happened before. It’s probably going to happen again if you don’t shine the spotlight on it and have a bigger purpose for your case. We spend so much time prepping our client for trial testimony, and we don’t do it all at once. I do it in multiple sessions, like three or four sessions, and I’ll do one two weeks out or a month out just to see what’s going on. How long? An hour, that’s plenty. Yeah, an hour. It’s like having a medical procedure. Not that I really want to know about it, but if it’s explained to you, you’re a little less … Maybe you’re more nervous about it. I don’t know. Well, we’re going to put you to sleep and we’re going to cut your leg off.

That’s right. But what I’ll do then is I’ll have a second session where we get into more of the substantive issues in the case. And then the last session, what I’ll usually do is have somebody else from the office do a cross-examination, just not a direct, but do a cross-examination of what they’re going to handle.

Alvin Wolff:

Do you ever ask your client, give me a list of 20 reasons how we could lose this case?

John Simon:

That’s a great idea.

Christine Byers:

That’s a great strategy.

John Simon:

That is a great idea.

Alvin Wolff:

Because that gets them thinking about the problems that are

John Simon:

With the case, because

Alvin Wolff:

There’s never been a case that doesn’t have problems. And all you need is one problem that you can’t solve in your cooking.

John Simon:

That’ll sink the ship. Yeah. So I have a story. I had a client who was a young man and he was a little bit angry. It was in his late 20s. It was an accident where he sustained a head injury and he would lash out a lot. And the bad news and good news was he had no memory of anything about the accident, so he really didn’t need his testimony for anything. So I made the mistake of having one of the younger lawyers in the office prep him and put him on because he didn’t need to testify about anything, nor could he add or detract from anything. But he did have a head injury. That was the case. And the attorney on the other side was not nice. She wasn’t very nice and he didn’t get along with her too well at the deposition, as I recall.

But again, I just told him … My prep consisted of, “Just don’t argue and be nice. Just be as pleasant and polite as you can be because he didn’t remember anything.” Well, 10 minutes in, they’re screaming at each other. And it culminated in him pounding on whatever was in front of him and saying, “I deserve this. ” Wow,

Alvin Wolff:

This is

John Simon:

Not going too well. This isn’t going well.

Alvin Wolff:

That reminds me of a story about Sam Goldblatt. And Sam was a guy who tried a case every week and the story was the client fell down and because they were distracted by, they heard a dog bark and they fell. And Sam’s trying to prep him to get him ready to testify. Say, “What happened? I fell down.” Then what happened? I heard a dog barkling. So sometimes preparing a client backfires.

Christine Byers:

Okay, gentlemen, that will do it for this episode of The Case Doctors. If you have a case that you would like the case doctors to dissect, send us an email at [email protected]. Once again, we will be keeping all names and cases confidential. Thank you for joining us and we will see you next time on The Case Doctors.

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