EP 519- Conversation with Ed Herman Part 3

Episode Notes

Transcript

Announcer:

Welcome to The. Jury. is Out a podcast for trial attorneys who want to sharpen their skills and better serve their clients. Your co-hosts are John Simon, founder of the Simon Law Firm Tim Cronin personal injury trial attorney at the Simon Law Firm and St. Louis attorney Erich Vieth.

Erich Vieth:

Welcome to another episode of The. Jury is Out. I’m Erich Vieth.

John Simon:

I’m John Simon, and we’re here with Ed Herman of the law firm of Brown and Cruin. He’s a managing partner. Welcome, ed.

Ed Herman:

Thanks for having me. Now I have it in my head that in your case, and I’m going to ask you this question that if you look 20 years ago and envisioned what you’d be doing 20 years later, I’m guessing in your case it’s probably pretty darn close to what you thought you’d be doing, maybe not 40 years ago, but 20 years ago, I think you might’ve envisioned this. What about you, Erich, if we go back in your life 20 years ago, what you’re doing now, whatever you’re doing now in all aspects of your life, not just your career, does it look the way you thought it would? Look 20 years ago,

Erich Vieth:

It’s kind of like the iPhone. The day before the iPhone came out, no one would’ve imagined we’d all have our lives changed so dramatically constantly by these little devices that would guide us in various ways, but it would be unpredictable. I think the day before they invented the iPhone, my personal life is the same way. I was a philosophy major.

John Simon:

Me too. I

Erich Vieth:

Never, oh, really? You guys are, I

John Simon:

Knew you had something in comic. Yeah, no, that

Erich Vieth:

Was so I didn’t know why I was really here. I want to do well in terms of serve the client well and pay my bills and that kind of thing, but I was open to a lot of possibilities. I didn’t really have a plan. I’ve gone through a lot of stages. I started as a defense attorney just like John, and then I went to consumer protection with the state of Missouri and then became class actions. It kind of grew out of the consumer, but it’s like another good thing and I try that, try this, try that, and so I am not one that sketched it all out and decided what to be in the end. I had no idea I’d be here, which now I’m focused more on civil rights and I’m obsessed about First Amendment cases. I’m active in a number of organizations that are concerned about making sure that we all have that right preserved. I didn’t know that any of this was going to happen any more than I knew 40 years ago I was going to have kids. I had decided early in my life I didn’t think I was going to have kids. Well, I had kids. It’s been very unpredictable, but it’s not like a day-to-day shifting and zigzagging. But it is been a process where I think it is what’s the next interesting thing to do,

John Simon:

I think and do that. Yeah, knowing Erich, that’s kind of what it is he does. What’s next is what interests him, and that’s kind of the way you are,

Erich Vieth:

And I throw myself into it and I love it. And then I guess maybe it’s not like it gets old and tiresome, but then there’s maybe another thing where I’m thinking that was fun. I think I’ll try some of this over here. And so I’m not full-time as a lawyer, but I’m more like one half, 60% time. I work as a lawyer, but I do a lot of writing and I’m a musician and I love to do art. I’d like to kind of throw it back at you because I think it’s a fascinating topic to talk about the creativity process and the law and especially all the other things that you do because you were having a ton of fun with these videos obviously. So maybe you can tell us a little more about what you’re

Ed Herman:

Doing. If you would’ve gone back when I was a kid and asked, what would you like to do versus say, what were you born to do? I think most people that knew me back then and me knowing myself, I would’ve loved to have gone into entertainment in some way, whether in front of the camera or behind the camera because I do a lot of writing and I love being in the editing studio. I loved production and I was one of those kids that saved up all my money, got a cheap camcorder as soon as they were a thing, and just have a ton of films that my brother and I shot together and all sort action, adventure, comedy things, spoofs. I mean, we were always doing stuff. So that was sort of like what I would’ve liked to have done. I grew up though very, very economically disadvantaged.

I can’t quite say poor because there are people that had less, but we went through a long stretch. My parents divorced when I was nine and we had about three, four years food stamps and electricity being turned off kind of stuff. So for me it was a very easy thing to kind of abandon the idea of pursuing what I thought I would like to do in favor of something that I felt I was kind of born to do because from the time I was young, everybody said, oh, you’re going to be a lawyer. I was a talker and a little bit of a charmer, and I know shocking, not at all. And so they always did it. So really early on I kind of felt like going into law was sort of faded and it was where I was going to have an opportunity to make money and when you grow up without money, the idea that money will solve your problems or make your life a lot easier, whether that’s right or wrong, it is a north star, and I did follow that.

I absolutely no illusions. I went into this because I was like, if I’m not going to do what I love doing, I’m going to do something that allows me to pursue hobbies that I love doing, and you need money to pursue hobbies. So when the videos came around and we had these sort of marketing opportunities to do something, that creative side of me had a chance to breathe for the first time in a really long time, and I had a blast with it. I had no idea that they were going to be as popular as they were. I had no idea that they were going to how popular? Well, 1.8 million hours of view time just on YouTube alone and more than that on Facebook, but you don’t get a precise number, but I can extrapolate it, but 1.8 million hours. Now everybody nowadays is on TikTok with these short 32nd videos and somebody watches ’em for five seconds.

It counts as a view, and they think they’re all that. I always thought if you can keep people’s attention, especially in this world, modern world to where they’re going to sit and watch you for five minutes in a row, six minutes in a row, some cases a lot of times 10 minutes in a row that you were really doing something there, it is hard to get people’s attention and it’s even harder to keep their attention once you’ve gotten it. That to me was the biggest success of it was the length of time people were watching and engaging. That’s what you want to do, social media,

Erich Vieth:

All of those. Lemme ask you though, when you created these, were you thinking, I’m going to try to get people to watch them, or were you just having fun doing what you would want to watch?

Ed Herman:

Well, that’s how I do. I think most creative people are creating something that they themselves would enjoy and the measure of how successful any of my videos were always how did it come out in relation to how I envisioned it in my head? Did I nail what I wanted to do so I know if it’s a success or a failure before anybody else has even seen it. I take it as far as I can and get it to where I can get it to, and at some point it’s like reaching maximum medical improvement. It may not be perfect, but it’s not going to get any better. I get to that point, you don’t want to overproduce your content, you’ll lose the painting at some point. You have to know when it’s done and if it was done. That’s why Ed versus Bathrooms, perfect example. I knew before we even shot a frame, before I opened my mouth, I said, this is going to be my citizen cane, which was only half joking because I knew I was going to do all of the aspects of it and it was going to be a big project, and when that one was done, I’m like, I did it.

That’s the video I’ve been wanting to make my whole life. It was simultaneously in my most personal video, but also my most relatable video. And so that’s kind of a special phenomenon right there. And it wound up getting nominated for seven Emmys at one five of them in the Midwest, and that was a satisfying night.

It gave me a little taste of, and I’m sure it’s just a small taste. I’m not putting myself in their category, but you wonder sometimes when you’re watching the big award shows whether or not people are truly happy for the other people on the production that win an award. And I could just tell you based on my experience that night, I think I was more excited when some of the crew won for their participation in my video. That made me feel really, really good. I won a couple for it myself, but our director, who’s my production partner, Jeremy Corey over, I got to give them a little love, best video production company in town and he got one of my animator, Zach Jones. Zach Jones, such a good job on that and he got one, and then our audio guy who there were 45 audio tracks in that video. It was an extensive production and so that was a great one. But yeah, having a creative outlet is essential. The videos were great and I love pouring my personality into them and I love the fact that the public was so receptive. I mean, that’s a pretty vulnerable thing to put something out that’s personal

Erich Vieth:

For those who have never seen one. I watched a few last night I watched you talk about how to use cereal, breakfast cereal to enhance ice cream or maybe it’s vice versa, and it was fun. It just a lot of fun to watch that. You talked about utensils. He’s going through what is this thing? He’s looking through his utensil drawer and then the third one I watched was about napping.

Ed Herman:

Oh yeah. Versus ns.

Erich Vieth:

I love that video.

Ed Herman:

Now that one, I think that was, I won the golden gavel for that. That’s the legal advertising awards that they do nationwide. That one actually, because a lot of people have said to me, they say, you do these fun videos, but does it actually help your business? I mean, do you get serious injury cases when you’re doing videos about teaching people how to take a nap? And I say, well, lemme tell you how the golden gavels are judged. They bring in focus groups and in each category they show them the advertising material, the marketing material, and they only ask them one question based on everything you just saw. Which lawyer do you hire? And I won Golden Gavels four different years for these style of videos because at the end of the day, they do show personality, genuineness, humor and intelligence. They make you relatable.

They make you approachable and more important than anything else, likable, likable likability is the ultimate tiebreaker because there’s not that much difference. The public doesn’t know why does one person drive a Honda instead of a Toyota? They’re the same car for some reason, they like one better, and that’s all it really boils down to. So anything that you have left in their mind that leaves that impression has helped your business. There’s not even a question to it. The other thing is you could always tell what’s working in your marketing by what people talk to you about when they approach you. They come to me on the street if they say, oh, I listened to you on the T-M-A-S-T-L podcast. We’re the title sponsor that I love what you do on there. That to me, I know that’s the thing that made the impression on that person.

That’s what worked for them and that’s what stuck in their mind that when we did the Super Bowl ad years ago where Terry got on and talked about Stan Kronke, people responded to it because that was not an attempt at some crazy marketing scheme. We didn’t even put the name of our firm on that spot. That was Terry basically purging his frustrations and he hit a common chord with about 90% of St. Louis. So for a long stretch after that, that’s all people talked about when they would come up to us and they would see it. I love that Super Bowl ad. I’m glad somebody did it. I’m glad somebody said it. You’re not going to tell me that. The fact that that phenomenon sort of happened, we didn’t. I mean that was very unexpected that that didn’t help our business. It absolutely did it, especially now in the current climate, when you have out-of-state lawyers coming into our market trying to get our cases, the Morgan and Morgans of the world, what ultimately you hope is your differentiator is the fact that you have this brand that yeah, they’re flashy and they’re new and everybody likes a bright shiny object, but who the hell are they and what are they going to do with the money they make?

They’re going to spend it in Florida, they’re not going to spend it in your stores in St. Louis. Or they can go over here and they see Terry whose face they’ve seen for 45 years who they remember stood up for the city when the city had been dealt below and took our hard earned money just to let another human being know, you know what? You hurt us. You hurt our city. You did it out of greed and we don’t like you and that’s it. We spent our money, we put it on during the Super Bowl. You could hire that guy. And the hope is is that it’s enough of a differentiator and enough of what people remember. It’s not like they’re going to go through your resumes and know what your case results are. Your best cases are confidential anyway. They’re going to be making their determination on other factors because they don’t know who’s a great lawyer and not, they can only go on their instincts of who they think that they like better or who they feel some degree of loyalty to. It’s exactly how you pick clients, but it makes sense because I relate you, if you have a likable plaintiff, a

John Simon:

Jury, a jury is going to

Ed Herman:

Like

John Simon:

Them. The saying that I’ve said many times before, you let me pick my client. I’ll let you pick the facts. Yeah. The first

Ed Herman:

Thing that matters is the client who’s, if they have a good story, if they seem like a good genuine person, people, they have some

John Simon:

Credibility,

Ed Herman:

They will follow you right along your journey. The second they detect that you’re not a good person or you’re not being honest with them or you’re hiding something from them, you’re done. Yeah. Then the whiff of suspicion never really goes away. I was coached by Judge Mason. I went to Washington school and I was on the mock trial team for my second and third years, and that was what we always talked about with credibility. He would say it’s like milk in the refrigerator. The analogy he would say, you take it out and you take a little sip. The second that you could tell that the milk has turned and it’s sour, you don’t taste the rest of the milk. You now know it’s sour. You take the milk and you dump it all down the drain, and that’s what happens with every witness and their credibility. He does the same thing with finding a roach in your pasta. You don’t take the roach out and then eat the rest of the pasta. You dump the whole thing in the trash. That’s why having a likable and credible plaintiff, and quite frankly, credible witnesses throughout your case is paramount. Nothing else really matters. I would rather deal with bad facts honestly, than do something that’s going to make the jury feel like we’re hiding something or being dishonest. That’s the death. You’re done,

You’re done. Your credibility is the only thing. You have

John Simon:

Your

Ed Herman:

Reputation

John Simon:

And credibility.

Ed Herman:

That’s it. So all those ities add up, credibility, likability, approachability, you put those together. That’s how you make a good brand for yourself. The other thing that I tend to talk about when I speak at various conferences is about brand affection. I get tired of people using the phrase brand awareness. They say, oh, you’re doing it for branding. I’m like, don’t say branding because when you say branding, what do you mean? And they always mean brand awareness. And I say, who had great brand awareness? Adolf Hitler, he had great brand awareness, but he had no brand affection outside of his followers. You want brand affection. It’s not enough that people know who you are. Everybody knows who we are, but if they all hate us, it doesn’t help our business

What they think about your brand. That’s the important element, not that they’re aware of your brand. That’s just a precursor. That’s step one. That’s the very, very top of the funnel. But you can’t go from the very top and say, I’ve got billboards all over. Everybody knows our name and think that that’s going to lead to the bottom of the funnel where you have a signed contract, there’s a whole middle process that they have to go through where they’re making a decision on whatever criteria they choose. They get to pick the criteria of how they’re going to pick their people, and you want to be in that mix. And the only way you’re going to be in that middle mix is by how are you going to create some brand affection? They’re not going to know anything else about you until they hire you.

Erich Vieth:

I’m thinking Daniel Kahneman is a behavioral economist who talks about substitution. And when you’re thrown a hard question, a difficult question to answer, all of us will judge the answer based upon because the question is too hard, we judge it on something else. So the classic example is someone says, do you have a good doctor? And you go, yeah, he’s a good doctor, and you don’t know really what your doctor knows, but you know he’s friendly. He smiles at you, he asks you how your kids are and you’ll like him, and that’s how you’re going to, yeah, I have a good doctor. He spends time with me. He cares about me, but you’re not really able to evaluate how he did in medical school or whether he studies the journals at night and make sure he is up to date. So we do judge people, and the key to it is that when we make these judgements based on when something that’s totally irrelevant, I mean almost totally irrelevant to whether he is going to cure you. I mean, you might need a really smart person to evaluate you, and you got the smiley guy who you like and you’re saying, this is a good doctor. I’m going to this. I’m going to trust that person’s judgment. Exactly. You don’t realize that you switched the question you don’t remember. You don’t even know that you switched it. You just think he’s a good doctor and I’m going with him.

Ed Herman:

Well, a lot of that’s because like you say, they don’t know the difference. They don’t know what the criteria would be or even how to evaluate that, so they have to fall back on the things that they are familiar with. We always say nobody knows the difference between an excellent attorney and a good attorney.

Erich Vieth:

That’s right.

Ed Herman:

But they do know the difference between excellent client service and poor client service because they’ve dealt with people their whole lot. They’ve been to hotels, restaurants, retail places, and they know when they’re being treated well and when they’re not being treated well. Now that’s great for once they’re a client and it’s great for referrals, they’re going to speak well of us, and that’s why it’s so important to do that. Brad Winters, I know if you know Brad. Oh yeah. Brad used to come in and tutor. So

John Simon:

Brad gives the example of being on an airplane trip that he took, and I think it was in Mexico or somewhere, and he said that he looked at duct tape on the seats of the airplane, and he said, well, I started wondering about the pilot.

Ed Herman:

Right, right, right. You never know too well, you’ve learned to, because I’m sure you’ve talked to jurors after trials, and you certainly have done focus group a million times. You’re always shocked at some detail that somebody picked up on and made a much bigger deal about than you would’ve ever anticipated. No. Well, you know what I’ve

John Simon:

Heard more than once from talking to jurors after cases is they’ve come to us and said, we thought as a group you really, really cared about your client, and that’s not the facts or

Ed Herman:

Whatever is, but the truth is, but if you don’t care about them, why should they?

John Simon:

Yes. Yeah.

Ed Herman:

They have to feel that. They have to feel what’s on the line. And one advantage we have as plaintiff attorneys is people in their heart, they want to root for the individual. They want to root for the underdog. I quite frankly think that that’s one of the reasons why you do much better on cases against a commercial defendant. We took it there perhaps because we knew that there was more available insurance, but the reason why the jury was more generous, they don’t know about insurance and who doesn’t, but they’re a corporation. They’re not an individual. You see the David versus Goliath for David, only jerks root for Goliath. Right. So that’s why those cases work. Now, when you’re suing an individual and they don’t know there’s insurance and it’s just your guy versus another individual, I think those cases are harder to win. But they’re also harder to ring the bell because they don’t know.

John Simon:

They might like the defendant, the

Ed Herman:

They may like the defendant, they may feel for the defendant, and it’s easier to feel for an individual.

John Simon:

They can relate to him, they can

Ed Herman:

Relate to. I remember I tried a case when I was on the defense side, I was second chairing for John Misner, and it was a double wrongful death case from a car accident, one of the saddest cases I’ve ever worked on. But what was fascinating was we were representing the defendant who was a truck driver. The truck driver was the most sympathetic witness in the entire trial. His two daughters showed up every day for the trial and supported him. When he took the stand, he was so sincere and he wept describing the circumstances of what happened in the accident, and it was so human, so connected. I knew in that moment that there was no way we would lose the case because the plaintiff who had lost two family members was stoic. They were just a stone on the stand. And I know that of course, their heart had been broken and they had suffered an unimaginable loss, but it didn’t play that way.

It played like this person had had their soul drained and were just there. And this other person, and I begged the plaintiffs, I was always a plaintiff’s guy at heart. I never liked being on the defense. It was so uncomfortable for me. I begged them to take a settlement during jury deliberations. I said, guys, you’re misreading this. It’s not going to go your way. Please take the money. And they did take the money and we got to pull the jurors afterward and whatever, and there was no way that they were going to win that case. Even the people that said that they were going to find for the plaintiff, not one of them was awarding more than a hundred thousand dollars, which was, I mean, again, a lot of people hear that number common citizens, and it sounds like a big number, but we know in our business a hundred thousand dollars in a case that’s nothing. When you factor in legal fees, expenses, what it takes to work up, that money’s gone. So that’s another issue in educating a jury. How do you ask for that big number and not how do you do it boldly? You ask for some big numbers. That’s always a challenge for sometimes they feel like they don’t want to ask for something so big that they alienate

John Simon:

The jury. I don’t think that that happens as often as we think. And I think the other thing that happens is the lawyers, plaintiff’s lawyers, we kind of create our own ceiling because we look at cases and we judge it based on settlements and payments, and we spend an entire career settling most of our cases. And that’s what an insurance company, an insurance adjuster is willing to pay in a negotiated settlement and jurors. So in other words, when we go in a case and we’re going to ask the jury for an amount, I’ve got 39 years of a past history of settling hundreds and thousands of cases, and the jury sitting in that jury box, this is the first time they’ve ever been asked to assess what amount of money is justified for an injury or a death. They don’t have anything to anchoring them to that.

I look at it this way, and I’ve had this, and we’ve had seminars where people ask what amount You ask for these big huge amounts, doesn’t it turn people off? And I think of it this way, a case where you lose your leg or even you get hit and you have a back surgery to truly, and honestly, if you’re trying to give fair and just compensation, what would you have to be given to go through that? Right? I mean, it’s the golden rule. We can’t argue that it’s reversible error to argue, but that’s how I evaluate cases for somebody lost a family member. Is there some amount that’s too much to ask in that circumstance there. I mean, there’s just not, you can ask for whatever. No amount is too much. Most of the serious injury cases, unless somebody’s mentally ill, no rational person is going to say, yeah, sign me up for that. If somebody is paralyzed and has to spend the rest of their life in a wheelchair, I had actually, I had a defense attorney make that argument that called it the lottery because of the number that we had asked for. And I said, yeah, that’s a lottery ticket, and in order to collect it, you got to leave there in a wheelchair. How many takers, who would be a taker to that?

I think you need to anchor a little bit and condition. I don’t think you can just throw the number out at the end, but in every case I’ve ever tried, most of them, I think almost all of them in the beginning, I will ask questions like, for instance, punitive damages. And I’ll say, in a case involving punitive damages cases like this, jurors can award anywhere from zero to hundreds of millions of dollars, from zero to hundreds of millions of dollars depending on the facts. Who here is not able to do that, right? Is there anybody here who couldn’t consider an amount an award from zero? Because if they think it’s a zero, it’s a zero to hundreds of millions of dollars.

Ed Herman:

That’s a nice way to introduce that. You can’t say no to that,

John Simon:

Really. Right? And it’s zero to hundreds of millions. Or I will talk about how, okay, who here thinks there should be a cap or a limit on personal injury cases, and this has never failed. It’s never failed. I get a conversation going about that, and somebody always, every time we’ll say, well, now wait a minute. I’m not talking about, are you talking about hundreds of millions of dollars for a broken finger? And my immediate response is, well, let’s think about that. Is there any set of circumstances where you would be able to consider hundreds of millions of dollars? So all of a sudden you’ve got 10 minutes of discussion in the voir dire about awarding hundreds of millions of dollars in the case, and then you get done with the case and you ask for 35 million or $45 million. Seems reasonable. Yeah. It’s like, well, he’s not asking for hundreds of millions of dollars. And the law allows you to ask that. And you ask it in a way where you’re not saying hundreds of millions because that’s what we’re going to ask for, but you can award zero. That’s okay too. Right? Anchoring. It’s an anchoring concept, but it’s also important because the cases, if you’re going to ask for $40 million, you need to start talking about that. You need just talk about that

Ed Herman:

In the vod. Have you developed a book of learned truths, a book of things that like I imagine a standup comedian will try different lines on different nights when they’re working up for their special, they’re going to test their material and they’re going to take notes and they’re going to learn something every night. If I do it this way, I get this laugh. If I do it this way, not as much. You obviously learned lessons on every case that you’ve worked, but they are all these lessons accumulated somewhere. I never used to do it this way, but on this case, I did it this way. I got a huge, and then I’ve done it that way ever since. And now it’s a part of what I do.

John Simon:

There are certain things that I do almost always. And then there are other things I add.

Ed Herman:

Are they written? Have you shared that wisdom?

John Simon:

Yeah, I’ve with me. Yeah. You know what? Anytime, how many on the podcast I’ve done, have we done 150 podcasts? I’ve done everything from opening. I’m going to do a presentation for our law clerks. We have 22 law clerks this summer, like a record number of law clerks.

Ed Herman:

That’s insane.

John Simon:

It’s a lot of law clerks, but they’re all productively engaged in good work. We have each week, sometimes twice a week, we have a lunch and learn, and the attorneys do a 30 minute presentation. And one I’ve done before is asking for damages. That’s the one I’m doing. I’m doing it next Wednesday or the Wednesday after. It’s asking for damages. And that is one of the toughest things to do in a case to ask for damages. And the whole idea is you’re really doing that from the time you start voir dire from the beginning. You’re working on that, you’re setting the stage for that, you’re developing that. And you need to do it in a way where, for instance, what’s the movie? The Burial? Have you seen the burial? No. Okay. You need to watch the burial. The opening statement is one of the best opening statements.

It’s hilarious. It’s a great movie, but it’s about a case. And I think it was based on a true case. It was a Willie Gary. It was the attorney, the actual attorney in real life. And here’s the concept I’m getting at. It’s jurors don’t give money. They take money. Jurors don’t give money. They take money. And there’s, there’s a scene at the end of that case where they’re sitting in a conference room trying to negotiate this settlement in this multimillion dollar case. And the defendant slides across the table, finally at the end of the negotiations, a note, and they’re offering 75 million. And the plaintiff looks at it and sends it back and says, no. And the defense lawyer or the defendant goes, are you out of your mind? That’s 75 million. That’s more money than you’re going to see in 10 lifetimes. And he goes, and you’re going to turn that down. And he says, oh, it’s plenty of money for me. It’s just not enough for you to pay. And that’s the whole idea. That’s the concept

When you’re asking somebody for money, you’re asking them to give your client money, which they’re not that excited about, but you’re also asking them to take money from the defendant, which they’re very interested in doing. What I will do is I will talk about, when I’m talking about the damages and the injuries, before I ask for a number, I will talk about the conduct. I will talk about the defense going 90 miles an hour, no breaking. Ladies and gentlemen, you heard the conduct, you heard the, and even if you have punitives or if you don’t have punitives, in the case jurors, they jurors don’t say, well, this is punitive conduct. This is not, this is compensatory. They look at the whole circumstance and say, what should this person pay if they’ve already decided that they’re going to pay? The question becomes how much should they pay? And that decision is made based on a lot of things, including what your client’s injuries are, but more importantly, what the conduct was. Right.

Ed Herman:

No, I imagine the conduct plays a huge,

John Simon:

That the conduct is the whole thing. It’s when somebody comes in my office, one of the attorneys and say, we’re going to mediation. I want to talk to you about what’s this case worth. My first question is, what did defendant do? What’s the defendant’s conduct? And they’ll say, well, we don’t have punitives. I go, yes, you do. In every case, because you can discuss conduct

Ed Herman:

In every case.

John Simon:

Yeah, exactly. You had an 80-year-old woman driving to church and she hit somebody rear-ended them 50 miles an hour and had the same exact injury, same impact, versus the executive of a chemical company driving say the same car. Right. The damages in that case are going to be astronomically different.

Erich Vieth:

Sure.

John Simon:

And it’s the same medical bills, it’s the same injury. It’s all based on the defendant’s conduct. And that’s something that I learned decades ago, and I incorporate some aspect of that in every case. But how you incorporate that is going to depend on the facts of the case. I always am interested in asking the defendant, what did they do at the scene, right? Did they call their employer first? Did they call 9 1 1? That’ll double the value of the case.

Ed Herman:

A lot of times just if they didn’t even check to see if you were okay. Especially I noticed that in St. Louis, St. Louis loves to come to a quick judgment about a person. It’s built almost into the DNA. What high school did you go to? What is that question? Really? It’s just a shorthand for them thinking that once you tell them, they now know they have a profile on you with 20 other facts that they’re going to assume

John Simon:

This presentation. The whole premise of it is we are emotional beings. Facts don’t matter.

Ed Herman:

They don’t.

John Simon:

The only way the facts matter is how those facts are going to affect your emotions. And the defense does this and the plaintiff side too. But when you buy a car, when you get married, when you buy a house, you buy with your heart. You justify it with your head. Right? Exactly. And so it’s the same

Ed Herman:

Thing. All decisions are emotional decisions.

John Simon:

Is it Jonathan Het is that, and he’s got a metaphor, and it’s the elephant. The elephant and the rider, and it’s the rider, the little guy with the stick riding the elephant, the elephant’s, the emotion, and the guy driving. The elephant is the rational part of the brain, and all of that is wonderful. If the elephant doesn’t become frightened or scared or angry, if that elephant gets scared or frightened or angry or anxious, that guy’s going for a ride. He doesn’t control anything. Right, right. No, and that’s it. I mean, that’s the whole gist of it is it’s an emotional endeavor. So is buying a car, so is everything. And anything in our lives is emotions, emotion. It’s like the, what is it, Aerosmith song, sweet or whatever. That’s it. That is the whole.

Ed Herman:

It is. And not just with juries, but leading a group of people, leading a firm. One of the hardest things to do, but it’s a discipline, is learning to not argue facts against feelings. You’re never going to talk a person out of their feelings when a person’s in an emotional state. All you can do is listen, understand, validate, and then play out from there what would have to happen from the sea of emotion to move in a different direction.

Erich Vieth:

So we’ve been talking to Ed Herman, who is the managing partner of Brown and Crewman, the law firm in St. Louis. Thank you for joining us for several episodes. I appreciate it. Appreciate it. This has been another episode of The. Jury is Out. I’m Erich Vieth.

John Simon:

I’m John Simon. We’ll see you next time.

Announcer:

The Jury is, Out is brought to you by the Simon Law Firm at the Simon Law Firm pc. We believe in the power of pooling resources in order to create powerful results. We often lend our trial skills and experience to lawyers around the country to achieve better results for their clients. Our attorneys welcome the opportunity to work with you on your case, offering vast resources, seasoned litigators, and a sterling reputation. You can contact us at 3 1 4 2 4 1 2 9 2 9. And if you enjoyed the podcast, feel free to share your thoughts with John, Tim and Erich at comments at The. Jury is Out Law and subscribe today because the best lawyers never stop learning.

Continue Reading