Zen and the Art of Trial Advocacy

By

I’ve been listening to a terrific set of audio tapes called Stop Your Whining and Go to Trial by Rick Friedman and Don Bauermeister. It draws on the most recent research on the way our brains react to certain themes and stories and applies this research to trials.  Some of the advice is familiar and some is quite new. For example, we are reminded that we need to claim the moral high ground at trial and that showing bad choices made by the liable parties is important in doing so. This is probably not news to anyone who has tried many cases, but it is important to be reminded that trial lawyers do need to search for the moral truth at the heart of each case.  Friedman and Bauermesiter give some good examples and they freely share numerous resources.  Among the recommended reading is Neil Feigenson’s book on legal blame and Friedman’s own book Rules of the Road.

But is was something else that really resonated with me. Friedman spends some time talking about the uncomfortable subject of comparison. That is, lawyers comparing themselves to other lawyers.  He sees it as a form of fear, connected with ego. As Friedman explains it, lawyers probably fear going to trial (maybe even subconsciously) because they don’t want to suffer a loss or a low verdict and thus compare unfavorably to other lawyers. This idea, while it seems so commonplace, resonated with me.

How many times have we been in a conference or seminar, and the speaker is introduced by reference to his/her gigantic verdicts, their professional accomplishments, and their book-length resume. The thought going through many attendees’ minds is probably something like “Wow, I could never do that” or “Gee, she’s so brilliant, I could never got those kinds of results.”  I’ve certainly had those thoughts, as has nearly every trial lawyer I know, and it can be a struggle to fight against the temptation to be afraid of the inevitable comparisons that may follow if you lose a case or don’t get a big verdict. Connected with this idea, Friedman also suggested something I don’t think I’d ever heard in any other CLE:  we should truly enjoy the success of other lawyers, and not worry about whether we will ever have the same success.  Not easy for competitive lawyers, right? But wonderful advice.

Friedman’s thoughts on focusing less on ourselves and more on the work itself sounds a bit like Pirsig’s Zen and theArt of Motorcycle Maintenance or Crawford’s Shopcraft as Soulcraft.   It was a tonic to me to be reminded that if we just take one step at a time, concentrate on doing good work and focus on our clients, we will probably lose ourselves in our work and not worry so much about outcomes or comparison.

 

 

Mistakes that Can Wreck a Personal Injury Case in Georgia

By

During just a few minutes of watching television last night, I must have seen 10 commercials featuring lawyers talking about getting money for all sorts of personal injury cases – drug defects, auto wrecks, trucking wrecks, and medical negligence.  The commercials make it seem awfully easy to get insurance companies to pay big money for these types of cases.   But I know from experience with my clients that this perception is simply not reality;  insurance companies are sophisticated, and they do not easily pay big money on claims for personal injury.    In fact, we too often see the opposite:  folks make mistakes trying to handle their injury case and the insurance company was using those mistakes against them and refusing to pay them a fair amount.  Or, sometimes, the insurance company denied the claim completely.

Here are some mistakes that can be very costly to a person who has been injured:

  • Missing Statutes of Limitation and Other Deadlines:  Lots of folks seem to know that there are statutes of limitations for personal injury cases in Georgia.  These vary by the specific type of case.  But many people do not know that there are all sorts of other deadlines that may apply to a claim, such as ante litem notice periods for claims against government entities, insurance claim notification periods (including uninsured or underinsured motorist claims), statutes of repose, and other deadlines that must be met.  Sometimes it seems like insurance companies wait to negotiate fairly with folks in the hope that they will miss some important deadline.
  • Talking to the Insurance Company:  Insurance adjusters will usually call the injured person after an accident, and it’s not normally a courtesy call;  instead the call is usually more like an interview or interrogation about the personal injury case and the person’s medical condition, and it may be recorded.   This can cause trouble for an injured person.  For example, sometimes folks will say they are fine before they even see a doctor even though they are in pain.  It can take days or weeks or even longer for some injuries to become symptomatic, but by then the insurance company may have already tape-recorded you saying you were “fine” and they may use that against you.  Keep in mind, though, that you may have a duty to speak with your own insurance company if you are making an uninsured or underinsured motorist claim.
  • Not Preserving Evidence:  Even in an age of smart phones with good cameras built in, it amazes me how often people do not take lots of pictures of a wreck scene and the vehicles involved in the wreck.  Some trucking companies even use such things as “Rapid Response Teams” to document the scene of a wreck as soon as possible, sometimes within just a few hours of the wreck.  Evidence of this sort is very important because you will probably need to show the insurance company the damage done to your vehicle as well as the configuration of the roadway to show that their insured was negligent.   You will also want to get the names of any witnesses and, if possible, locate any video cameras that may have captured any images of the wreck or the vehicles before the wreck.

These are some of the more common issues folks encounter after suffering a personal injury and having an awareness of these potential pitfalls will help you take the right steps to avoid them.

 

Writing Advice

By

Most lawyers spend a good deal of time writing.  I enjoy the writing process, especially when I have time to think carefully through whatever issue I’m dealing with and can take time to draft clear and hopefully persuasive documents.  That process is actually a lot of fun.

During the summer, when there is a bit less running around with the kids on sports and activities and the pace of law practice abates a bit, I like to kick up my reading about the writing process.  I’ve lately been reading one of the best books on writing I’ve come across, Garner on Language and Writing, by Bryan Garner, a well-known professor of law at the University of Texas. Justice Ginsburg calls this book a "must read" and she is right.  I think trial lawyers would greatly benefit from this wonderful book of essays that includes such points as these:

  • to be a better writer, read widely, but especially read good writing (such as the New Yorker, The Atlantic and The Economist)
  • keeping a daily journal will make you a better writer
  • poor writing is the result of poor thinking

Maybe the very best chapter is Chapter 19, where Garner lists his recommended books on a wide variety of topics, including legal style and usage.  He also lists fiction and non-fiction by great writers.  Reading those books would certainly greatly improve any writer’s substance and style.

If you have any other recommendations for good books on the writing process, please comment and share with us.   

Workplace Safety

By

I came across an interesting short article written by Jennifer Gregory about safety for small businesses.  Because we often represent folks who get hurt while at work, we are always on the lookout for ways employers can really meaningfully improve safety.  This article by Jennifer is a great short piece with 5 safety tips:

  1. Post required signs – OSHA has specific requirements for safety signs
  2. Train, train, and train more – safety instruction must be an ongoing, regular process
  3. Drill to prepare for emergencies, like fires or explosions
  4. Measure safety – for example, post signs showing the days since the last safety  incident
  5. Offer safety prizes – financial incentives are great motivators!

OSHA has a great website full of safety tips and advice.  Jennifer’s full post on "5 Ways to Get Serious About Safety" is also worth a close read.

Drugs Claim More Lives Than Car Wrecks

By

 Incredibly, a new study reveals that poisoning, primarily from prescription drugs, claims more lives than motor vehicle wrecks. The Bloomberg article on prescription-drug poisoning reports that 13.3 people per 100,000 died from prescription drug poisoning from 2007 to 2009.  In that same time period, 12.4 people per 100,000 died from motor vehicle collisions.   More than 90% of the unintentional poisoning involved prescription drugs, according to the study by the Trust for America’s Health and the Robert Wood Johnson Foundation. 

     According to the article, deaths involving prescription drugs exceeded the number of deaths from heroin and cocaine combined.  And doing something to combat this problem is no easy task.  For example, in Kentucky the Governor supported a bill that would have put the prescription monitoring program under the control of the Attorney General so access to records would have been easier, but the Kentucky Medical Association resisted the measure on grounds of protecting patient privacy.  This effort will likely continue as the number of families losing loved ones to poisoning involving prescription drugs rises.  Finding the balance between adequate pain control and controlling overuse of prescription painkillers will be difficult, but it is certainly one we need to try to reach.