By Don Keenan
Two weeks ago we started the first of a 3 part series on imbedding safety rules in our trials. The first in the series was how to awaken the Reptile in voir dire by focusing on the life saving importance of safety rules.
Before we get too far down the road, let us all recognize the immense contribution on the evolution of Rules made by my Inner Circle Brothers Rick Friedman and Pat Malone’s, Rules of the Road, Edition 1 and 2. Without Rick and Pat, nothing that I contribute would be possible.
This week will focus on damages and its interplay with Safety Rules. Now some will ask:
“Don, I understand how to use safety rules in opening, closing, and with experts. Two weeks ago, I learned how to use safety rules in voir dire, but how do you get safety rules in damages?”
Here’s how:
SAFETY RULES IN YOUR CLIENTS DAMAGES
While the first aspect of Reptilian safety rules is important (survival), there is another equally if not more important Reptilian element in safety rules and that is the quid pro quo and expectation that others will follow the safety rules. This second element applies only to damages but is critical to understand: the violation of a safety rule can be an element of mental damage.
Remember what we discussed about the need to always refer to rules as safety rules. Simply stated: safety rules keep us safe.
When someone chooses to violate the safety rules, none of us are safe and our trust is shattered. Our question becomes not if, but “when will it happen again?”
Often people who have been involved in catastrophic events where a corporation or a third party violates the safety rules, our clients will develop a phobia or a true fear, which psychiatrists commonly refer to as the "other shoe dropping." In other words, if your quid pro quo is the expectation and trust that other people will follow safety rules, and then that trust is broken, then there is now a reverse expectation that it will happen again.
Over the years many of my clients have had a phobia about getting in an elevator when they were involved in an elevator mishap but prior to then have no problem with elevators. Likewise people who had no real fear of automobiles or trucks crossing the centerline during the entire life, once they experience that breach of expectation then many will have a fear of another vehicle crossing the centerline in the future. To them it's not a matter of will it happen again but when.
When one doctor violates a medical safety rule and causes harm many patients/clients will be extremely fearful that subsequent doctors will likewise violate the safety rules.
I must admit that I fall in this category. Eight years ago while returning from a late business meeting that sadly had no cigars nor even a sip of single malt I was rear-ended by a drunk driver going around 85 miles an hour when I was going 55. I never saw it coming and have no recollection no matter how hard I try. Here are the photographs.
I was knocked unconscious, put in the ICU unit, and the first recollection I had was when my eyes opened and I saw a fellow who was obviously not a doctor who had his name etched on his work shirt. For a minute I knew it wasn't heaven because he sure didn't look like an angel and it turns out he's the wrecker driver who pulled my car out of the gulley as I was being taken to the hospital in the ambulance. He had come by the hospital because he had heard that I lived and his first words were, "I wanted to see the guy that made it out of that crash alive." He then showed me pictures of my car on his cell phone. It’s funny now but it wasn't quite funny then.
To this day y'all I become petrified when somebody even comes close to tailgating me. If I can't shake them then I simply pull of the road. As a member of the USMC, a college football player and a boxer, I never even thought of riding sidesaddle and I had to admit to myself and no one else… “I am afraid.”
Also as you can see my car was a Mercedes sports car, I've had every model of Mercedes sports cars since law school and I had no intention of replacing that crashed car with another sports car but yet I had to face my fears and force myself to at least get another sports car for a year or two so I would know that I wasn't a wussy. I got a replacement Mercedes sports car this time with AMG speed package thinking that next time I’d be able to speed up and avoid being hit in the rear, although as I said above I didn’t recall any headlights nor even remember the crash. The mind plays silly games on you. After two years driving the AMG sports car I quickly went to the 600S sedan which I'm driving now.
BOTTOM LINE: The breach of trust with shattered expectation causes in some folk real mental anguish paranoia that can run really deep.
The wonderful thing about this expectation issue is that yes it becomes a very clear element of damage but as well permits you to echo once again the underlying violation of safety rules during your damage case.
THE STIPULATED LIABILITY CASE
Since the Reptile we have seen an explosion of stipulated liability cases. Two years ago four of the five trials I started all were stipulated at some point with one of them the Friday before the Monday of trial and another one of them the day of trial. Obviously the Black Hats and the insurance company Taliban are of the belief that they keep out the Reptile if they stipulate to liability. I'm not guessing about this because one Black Hat actually laughed during the break after he announced the case was being stipulated and saying "Now try to use your Reptile". Well my friends the dark side's attempt to keep out the Reptile that dog won't hunt if you’d, worked up your case correctly and clearly set forth one of the elements of your damages to be the violation of trust breached expectation that others will follow the safety rules. In the one case that did reach the jury the Court accepted our argument that the violating of the safety rules by the defendant driver in fact caused a separate harm to the plaintiff that was admissible and part of the recovery. 1./
So with this issue you need to have much more than a last-minute grasp but instead… By all that is holy start working it up during your case. Your client must comment to their doctors. Your periodic review of the experts should verify the documentation. If the doctor or nurse has blow it off, not in records have your client hand write the anguish and they should demand it be placed in their medical records file. I am aware of a doc in Houston who attended one of the Reptile seminars now has the safety rule question as part of his clinics History & Physical and part of the on going treatment.
If the damage is extensive and true then get the client to set up some counseling. You'd like to hope that the counseling will cure the phobia which even if it does is admissible and you get to echo the violation of the safety rules which caused the counseling to begin with.
This can be powerful stuff y’all. Juries identify and “get it” because it’s real. It’s happened to many of them or their loved ones.
But please my friends if it's not legitimate in other words your client really suffered no harm from the individual damage of "the shoe will drop again" then don't squeeze the square peg in the round hole. If it's not authentic and it's not true then you will surely be perceived as being an on‑code lying manipulating lawyer and it's a single shot that will take out your client as well by diminishing or perhaps eliminating their authenticity.
So, therefore, with all things Reptile be careful and be truthful and authentic.
I was talking with Rick Friedman the other day and we both commented that too many lawyers stretch or simply create something to meet a suggestion they hear or read about, square hole/round peg. To do so the lawyer stays on code, kills their authenticity and probably the authenticity of their client.
BOTTOM LINE: If it is true and authentic then develop and use the “shoe dropping” on safety rules as an element of damage.
1./ Do not confuse the rules violation as a separate damage from the damage caused by a delayed stipulation. The later is recognized by many States but in some states that have a physical impact requirement for emotional damages the delayed stipulation emotional damages may fail if the defense persuades the Court that the “delay” did not constitute a physical impact. The Black Hat argument will fail if you convince the Court that the delay arose from the original physical impact. The argument should fail.
However, the Black Hats will try to use the same lack of physical impact rule (if your States has such a rule) to apply to the emotional damages flowing from the “shoe dropping” damage, that dog won’t hunt. It does flow from the original impact.
NEXT BLOG: Reptile Autopsy: Superstar Allen Hossley
UPCOMING SEMINARS: Please note that the 2012 Summer and Fall Schedule will be posted next week.
