How 1950s Housewives can Make You a Better Lawyer

We all want our clients to be happy and satisfied with our work and the process of their case, right? Obviously. 

The problem is that much of what we do goes on behind closed doors, in the comfy confines of our office, in depositions, and in minor court hearings that the client would be bored with (ie Motions to Compel, status calls, etc). 

So how do you keep your client happy with the process? Especially in the personal injury area where cases can easily take 2-3 years or more to resolve…

The answer may come from what is known as the Betty Crocker Egg theory. Legend has it that sales of instant cake mixes were slow when they were first developed. After studies and analysis, a guy named Ernest Dichter suggested that the mixes (put it in a bowl, add water, throw it in the oven) were too simple for the 1950s housewives that were baking them. The housewives felt guilty and not involved. The recipes were changed to require the addition of a fresh egg – and boom, sales grew like crazy. 

Why? Because that was just enough to make the housewives (or whoever was doing the baking) feel like they participated and were a real part of the process. 

(Snopes tries to debunk the theory, but their explanation – that new marketing sold the cake decorating process as creative and participatory – still supports the basic premise here.)

So the key to a happy client is to make your client an active participant in the process. But an egg/decoration participant, not a whole cake from scratch participant. If they have to do too much, they will wonder why they pay you so much and wonder if they needed you at all. If they do too little, they won’t feel invested.

Some suggestions:

1. Send clients a copy of correspondence and/or motions filed in their case, along with an explanation of them. 

2. Invite clients to court hearings – even minor ones. Explain beforehand what they are and that the client’s presence is not mandatory (ie no need to take time off of work for a routine motion, but you’re welcome to be there). 

3. Invite clients to sit in on other depositions. This sometimes helps beyond your own client’s feeling of participation. For example, treating doctors are often more charitable with their opinions if the client is present. Defendant drivers are often more honest about what happened when the other driver is present, and plaintiff drivers soften their settlement stances after seeing a Defendant who admits responsibility and is truly sorry for what happened. 

4. Make clients an active part of settlement/trial discussions. It is the client’s choice when/if to settle and for how much. They need to understand that, and you need to help them understand the pros/cons, etc.

5. Have clients help with some of the basics. For example, the client might be better off asking their boss to write them a letter confirming lost wages. One caution – don’t ask a client to get their own medical records. I’ve never seen a medical provider – especially a hospital or nursing home – provide the entire record that way. 

The moral, I guess, is that you have to break a few eggs to have a happy client. 

(Howard Zimmerle is a trial lawyer from Rock Island, Illinois. He practices personal injury, medical malpractice and workers compensation across Iowa and Illinois. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com)

RIP Philip Corboy, one of the Best Lawyers of All Time

Phil Corboy of Corboy and Demetrio died yesterday.

I never knew him.

I’ve known some lawyers at his firm, and others by reputation, and have been impressed with all of them.

But Phil was the key. I don’t know if I would be in this line of work if not for Mr. Corboy. He was a pioneer. He fought the courts and fought the system to remove caps on damages and to make courts more fair. He tried cases in ways that hadn’t been done before, and won amazing verdicts that hadn’t been won before. He paved the way for every personal injury lawyer who came after him. (Here’s a fascinating article about how he did it).

He was an easy guy to look up to – not just for his results, or the street named after him in Chicago or for any of that – but for how far he came from with his background. In a profession where it feels like most lawyers came from upper middle class backgrounds and higher, Corboy was a scrapper who worked his way up from a lower middle class environment. I always admired other lawyers who grew up that way – and I believe it’s a common theme in the plaintiff’s bar.

I never knew him, so I’m not even close to the best person to eulogize him. I’m sure there will be great articles in many blogs and publications in the next few weeks, and I look forward to reading them. He was truly a pioneer and very well-respected. I just wanted to say thanks.

(Howard Zimmerle is a trial lawyer in the Quad Cities in Iowa and Illinois. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com). 

Deposition Preparation Tip # 7F02

“Let it all hang out. You – conceal it!”

I’m reminded of this every time I prepare my client for a deposition, or help them with interrogatories, or whatever. Of course, I grew up on the Simpsons and am constantly reminded of them to the point where the show is just part of my subconscious. Anyway, this comes from a second season episode where Homer’s new assistant, Karl takes Homer to the tailor for some new suits. Homer does what guys do and sucks in his gut. Karl yells at him to let it all hang out, and then points at the tailor and says “you – conceal it!”

That’s what we want our clients to do. We need to know the warts in the case – the 30 pounds of excess flab hanging over the belt, so we can dress it up nice and make it look presentable. If a client is complaining of low back pain, we need to know if he had low back pain ever – or had been to a chiro – or whatever. If the client was a convicted felon, we want to know. None of this stuff is the end of the world if we know about it in time and can handle it.

The worst thing a client can do is hide stuff from us out of fear that it will hurt their case. We’re pros. We can dress up Homer Simpson in nice clothes and pass him off as an executive – but only if he doesn’t suck it in.

*hat tip to Dead Homer Society for the yoinked image above*

(Howard Zimmerle is a personal injury and car accident attorney in Rock Island Illinois, practicing in the entire Quad Cities and surrounding area. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com)

Discovery Depositions of Opponent’s Experts – What are your Goals?

There have been volumes written about cross examining expert witnesses. It’s been done to death. If you’re new to the subject, and a plaintiff’s lawyer, I’d suggest you start with Exposing Deceptive Defense Doctors by Dorothy Clay Sims. 

But what about discovery?

The rookie mistake to make when deposing an opponent’s expert is to essentially show him your entire case, make all of the arguments you want to make, and then hope the expert concedes he/she was wrong the whole time. This never* works. (*ok… so in maybe 1 in 100 or 200 cases it can work, but only if you have the expert completely dead to rights, have established that the expert’s conclusion relies solely on one demonstrably false assumption, have established that his opinion would change if that assumption was false, and can prove that the assumption is false. Even then you might get some weasling). I’ve read a ton of transcripts that go like this:

Q: So doctor, you agree that Mr. Plaintiff had pain after the crash, true?

A: At some point, yes.

Q: And you didn’t see any complaints of pain in the 10 years of prior medical records you reviewed, true?

A: True.

Q: So isn’t it logical that Mr. Plaintiff’s pain came from this crash. 

A: Nope. It’s degenerative. 

If this is your line of questioning in a discovery deposition, you’re doing it wrong. I mean, geez… what did you think the expert was going to say? Yes? Come on. This line of questioning is OK at trial, but you aren’t going to get any good admissions this way.

I believe the first step in deposing a defense expert is:

1. Prepare yourself. 

Read and understand the expert’s report and whatever the report is based on (ie your client’s medical records, an accident reconstructionist’s testimony, physics, whatever). Make sure you understand what the hell the expert is talking about. This includes things like googling words you don’t know, learning formulas like Delta V, etc. 

Read any articles the expert relies on. Read any articles cited by those articles or that cite those, especially ones that are critical. Review the expert’s CV and read anything the expert has written that might touch on the subject of his/her testimony. 

2. More preparation – old testimony

Obtain any prior testimony of this expert you can. Past reports, past depositions, trial testimony, whatever. Good places to start are local trial listservs and trialsmith.com (plaintiff’s lawyers only). Search westlaw, state court decisions and state workers compensation decisions for cases in which the expert has testified. Contact the lawyers involved and see if they have any depositions or other transcripts (or even expert witness disclosures signed by the expert). 

For the frequent fliers, you may have almost all of the information you need right here. Chances are, somewhere along the line you’ve found important concessions to your case. Organize those in your trial outline by deposition, page and line so that if the expert denies the fact or opinion you’re trying to elicit, you can impeach him/her with the prior testimony. 

3. Find out where the battle lines are drawn. 

This is crucial to any expert’s deposition. You need to know what they’re going to say at trial. All of it. This may include asking them questions about subjects that aren’t specifically addressed in the expert disclosure (ie was Mr. Plaintiff compliant with treatment; I assume you don’t have an opinion about the minimum delta v required to cause a crash). This depends on whether you think the judge will allow testimony that wasn’t specifically disclosed beforehand. Some judges (and some states) are very strict, some are very lenient. In doubt, I like to know what the expert’s opinions are – all of them – even if they hurt me as opposed to having a new opinion I was unprepared for sprung on me for the first time at trial. 

The next step depends on your purpose:

4A. Stop.

If you know where the battle lines are drawn, you have the admissions you want in prior testimony, and you know the case isn’t going to settle, just stop. Save the good stuff for trial and possibly leave your opponent unprepared. 

4B. Hit ‘em hard.

If you’re pretty sure the case is going to settle, hit them with all you have right now. Show the other attorney how weak their expert is and how poorly they hold up. Show them that you know he failed his boards, he’s lying about his CV, how he previously testified to the opposite of what he’s saying now, how his last journal article strongly contradicted him, etc. Show no mercy and make them run back to their client for settlement authority. 

Of course, if you choose 4B, be sure the case is going to settle. If you do this, you’ve now given the other side and their expert time to think things over and weasel out of some of this. Besides, if your case is really terrific and the other expert is that bad, try the case! Remember, settle your dogs, try your winners. 

(Howard Zimmerle is a trial lawyer with Warner & Zimmerle in the Quad Cities. He has offices in Rock Island and Davenport, and handles cases in Iowa and Illinois. He can be reached at hzimmerle [at] mjwlaw.com or 309-794-1660). 

New Illinois Rule 243 – Jurors Can Ask Questions!

Big news today – the Illinois Supreme Court adopted Rule 243, which allows jurors in civil cases to ask questions in certain circumstances. The rule reads as follows:

New Rule 243
Rule 243. Written Juror Questions Directed to Witnesses
(a) Questions Permitted. The court may permit jurors in civil cases to submit
to the court written questions directed to witnesses.
(b) Procedure. Following the conclusion of questioning by counsel, the court
shall determine whether the jury will be afforded the opportunity to question the
witness. Regarding each witness for whom the court determines questions by jurors
are appropriate, the jury shall be asked to submit any question they have for the
witness in writing. No discussion regarding the questions shall be allowed between
jurors at this time; neither shall jurors be limited to posing a single question nor shall
jurors be required to submit questions. The bailiff will then collect any questions and
present the questions to the judge. Questions will be marked as exhibits and made a
part of the record.
(c) Objections. Out of the presence of the jury, the judge will read the question
to all counsel, allow counsel to see the written question, and give counsel an
opportunity to object to the question. If any objections are made, the court will rule
upon them at that time and the question will be either admitted, modified, or
excluded accordingly.
(d) Questioning of the Witness. The court shall instruct the witness to answer
only the question presented, and not exceed the scope of the question. The court will
ask each question; the court will then provide all counsel with an opportunity to ask
follow-up questions limited to the scope of the new testimony.
(e) Admonishment to Jurors. At times before or during the trial that it deems
appropriate, the court shall advise the jurors that they shall not concern themselves
with the reason for the exclusion or modification of any question submitted and that
such measures are taken by the court in accordance with the rules of evidence that
govern the case.

The rule can also be found here.

So what does it all mean, practically speaking? A few thoughts:

1. Judges do not have to let jurors ask questions. I suspect many older judges won’t do this at all. I’ve spoken to some local judges who are excited about this possibility.
2. There is room to object and/or edit the question away from the jury. This is important, as I sure don’t want to object to a juror’s question in front of them.
3. No discussion between the jurors. This is good too – it prevents preliminary deliberation.
4. This does not need to happen for every witness. Hopefully this doesn’t slow down trials too much, although in a way it reminds me of letting fans suggest pitches to a pitcher – slowing down an already molasses-slow process.
5. I’m a little scared of this. I like control. I usually know what the defense lawyers are going to ask, and they probably know what I’m going to ask.
6. I also like the idea that jurors might feel more involved and more “into” a trial. This is a much better option than having jurors who are asleep by 1pm the first day of trial (or even in closing arguments… I had a juror sleep through my closing arguments once, and guess what… she became the foreperson, and I lost. GRRR…)

What do others think?

A recent article in the Illinois Bar Journal notes that other states and federal courts have tried it, and that the reaction of juries, judges and even attorneys has been largely positive.An example of this would be a pilot program in New Jersey, with similar results.

Will it change case outcomes? We’ll see. This may be the biggest change in trial practice since I became a lawyer – or it might be nothing.

(Howard Zimmerle is a plaintiff’s personal injury lawyer practicing in Illinois and Iowa. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com)

If We Had a Motto

I was thinking about this lately… if Warner & Zimmerle, or I personally had a motto as a lawyer… it would be:

Don’t be a stereotype.

It harkens back to Google’s motto  - “don’t be evil“

Basically the point is not to do what bad lawyers do. Not to be who the public often thinks we are. 

For some examples:

1. Be honest. Be honest with clients, juries, media, everyone. When you hide the truth or stretch the truth, it makes you a stereotype. 

2. Be humble. Often times the lawyers who are always shouting in commercials or on the internet about how great they are – aren’t that great. Be confident and proud to share successes, but don’t be a stereotype.

3. No frivolous cases. Don’t file a case without a really good basis for it. Hire expert witnesses who will give you the truth – not what you want to hear. Good lawyers don’t like frivolous cases – they get in the way of good cases, make it harder for good cases to get to trial, and poison the public’s opinion on the justice system in general. The same should go for defense attorneys. No frivolous defenses. Unfortunately, we see a lot of dumb defenses with no basis in fact. Don’t be that person.

4. Give back to the community. This should go without saying. 

I think this would be a good start for all lawyers. Greed, competition, fear and other emotions can sometimes jump in and cloud a good lawyer’s judgment. In those times, come back to this and remember who you want to be – and who you don’t. 

(Howard Zimmerle is a personal injury lawyer from the Quad Cities in Iowa and Illinois. He can be reached at hzimmerle [at] mjwlaw.com or 309-794-1660).

How Confident Should You Act in Front of Your Clients?

One of the old maxims in business is “underpromise and overdeliver.” That holds true in most businesses and professions I can think of, including the law. 

As a plaintiff’s personal injury lawyer, however… there’s a line somewhere. 

Most of the time we deal with people who have very little legal experience – and almost always no relevant personal injury experience. If they have an idea in mind about what their case is worth, it often comes from either (a) news reports of big verdicts/settlements (ie McDonalds coffee case), or (b) what some friend/neighbor/coworker got in a settlement several years ago. 

So when we discuss settlement or trial, our job is to inform our clients so that they can make the right decisions. If they have a great case, they still need to know that juries do weird things. Slam dunk cases can be lost. Juries can award medical bills of $200,000 and $10,000 in pain and suffering and think they are doing you a favor. Juries tend to make the right decision, but there are always horror stories of juries who make decisions on bad assumptions, or because they didn’t like someone’s shoes, or whatever. 

If your client’s case is dicier – questionable liability, major issues of some kind, whatever… you have to be blunt with your assessment of chances. You have to be able to explain that, say, juries often don’t award anything for minor impact auto cases, or that their treating doctor will connect the accident and injuries, but not with as much gusto as the defense’s doctor. 

You have to do all of this in a way that clients understand the potential pitfalls, but still trust your abilities and still know that you believe in them and will fight for them. 

If you are too blunt with your assessment of trial potential, your client might start to doubt you. They might think they didn’t hire the right lawyer. They might spread bad word of mouth. 

On the other hand, if you are too rosy, and if things don’t go well, they will doubt you. They will think they didn’t hire the right lawyer. They might spread bad word of mouth. They might even sue you for malpractice, breach of warranty, or something creative like that. 

The key is riding the line – staying honest and blunt, but with the right level of optimism. At the very least, in every case your client needs to understand that we never know exactly what a jury is going to do. The case depends on 12 (or 6 or 8 or whatever) people we’ve never met and only get a limited amount of time to talk to beforehand. It depends on whether all witnesses show up, whether they come across well in stressful situations, whether the judge applies the law correctly, etc, etc, etc – many things that we just can’t know until they happen. We have a good idea what will happen, but you just never know. 

(Howard Zimmerle is a personal injury, medical malpractice, nursing home malpractice, trial lawyer in Rock Island, Illinois, with an office in Davenport, Iowa. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com).