Don't fear the deposition

One of the best truth seeking tools in a civil case is called the deposition.  If you are about to be deposed or maybe you are conducting a deposition for the first time, I think Arnold Schwarzenegger  summed it up best in the following clip.

That’s right.  An attorney gets to ask questions of a deponent (the person giving the testimony) and they have to be answered (generally).

No consulting with your attorney before answering, no running to the bathroom, no responding “well whats that got to do with anything?”.  Your attorney can object to the form of the question or foundation, but generally can’t instruct you as to why they have objected.  This is what is known as a ‘speaking objection’.  While many attorneys do use speaking objections, it is not permitted by the rules.

The main time your attorney can object and instruct you not to answer is to protect privileged or confidential information.  For example, asking what a deponent and their attorney talked about would reveal protected information and the attorney should object and instruct not to answer.  Generally most attorneys avoid that line of questioning.

But what about when the deponent is asked for their social security number or any criminal convictions they have had in the past?  Well, as usual the answer whether those questions should be answered is: is it worth it to object and instruct not to answer.  Courts have protected confidential or private information even though it is not privileged information.  For example in Martin v. Ametek, Inc., a court denied a motion to compel in house counsel to answer questions about an her alleged romantic relationship with the corporations human services director.  This isn’t privileged information protected by law but a court said the deponent didn’t have to answer.

But an objection and instruction not to answer has to be decided by a judge which can add time and cost to the case and may irk the judge that the question wasn’t objected to and subsequently answered.

So if you have something you are worried about in your past or that may come up at a deposition, talk to your attorney.  Give them a heads up.  That way if it seems like the deposition might be headed that way, at least they can be prepared to object and instruct not to answer and have considered the consequences prior to the day of the deposition.





It's Up To You (Or Your Lawyer)

I think therefore I am.  Life is what you make of it. The one thing you can always change is: your mind.

These sayings reflect the famous French philosopher and mathematician René Descartes most well known statement “Cogito ergo sum” translated into english “I think therefore I am”.  As Elon Musk recently put it, although not the first to suggest it, we could all be inside a giant computer simulation.  Something akin to the Matrix or Plato’s Cave. See Mr. Musk’s interview below:


What does this have to do with the law or personal injury?

On a fundamental level, the idea that we are in a computer simulation, cave or even the Matrix is an idea that conflicts with what we generally accept as our existence.  The ability to consider these possibilities, despite evidence to the contrary, is a hallmark of what makes a good lawyer.

A good lawyer recognizes the power having and choosing options.  Sometimes those options are in the form of  what is reality or sometimes those options are presented in terms of litigation.  Do you file suit right away or do you try to negotiate?   The ability to think up another solution and present it in terms that everyone can agree on can be critical to resolving a case.  But, these ‘third way’ options generally aren’t presented to you, you have to put in the work and time.  In other words, it’s up to you (or your lawyer).




You Can Sue a Ham Sandwich


“You can sue a ham sandwich”

I have jokingly said this to friends and family when they ask about a potential lawsuit.  For the most part; it is true.  If that ham sandwich had some ham bone in it with no warning and you choked on it, then there might be a case. Maybe the ham was spoiled and you got food poisoning, that might be a case.  But when someone says you can sue a ham sandwich, they most likely aren’t concerned about the quality of your pork product.  Rather they are illustrating a widely held belief that lawsuits are frivolous.  My earlier post about the Liebeck case touched on this briefly.

Despite the perceived overly litigious nature of Americans, believe it or not, lawyers are compelled by the rules of professional conduct not to pursue claims that are frivolous.   So why then is there a persistent belief that lawyers do file frivolous claims?   That is too large a question to answer in a blog post, but at least part of the explanation lies in the harsh consequences of not suing. A few of those are outlined below.

Generally speaking, almost all causes of action (right to sue) have a statute of limitations.  After a certain period of time, if you have not filed the case, you lose your ability to pursue that claim.  It varies in each jurisdiction and it even varies based on who you are suing.  One sure way to get a lawyers blood pressure rising is to mention the words tort claim notice and governmental entity. Thats because often governmental entities will require notice of a potential lawsuit within a matter of weeks from when the accident occurred.  So, if an attorney gets a case a client sat on for a couple of years and finds out the statute of limitations is about to run, in order to protect himself and his client he may have to file the case without the full picture.  It could so happen that claim turns out to not have any merit as the discovery process progresses. Of course the lawyer should withdraw from that case if it truly is merit less.

Sometimes it is hard to know who is at fault and everyone needs to be sued. The classic example is the case of Summers v. Tice. In Tice, Summers, a hunting guide, took two men hunting. A quail flew above the guide’s head and the two men shot at the quail; hitting the guide in the eye and face.  In this situation how is Summers supposed to know who did it?  After all, as the plaintiff, he has to prove who did it. Sue them both.  The California Supreme Court came up with the doctrine of alternative liability and shifted the burden on the defendants to prove who caused the damage.  Sometimes you have to sue everybody, and sort it out later.  If Summers had only sued one of the hunters and later found out it wasn’t that hunter, that case would be dismissed.

These harsh consequences of not suing, everyone potentially liable, sooner rather than later, contribute to the overly litigious perception that you can sue a ham sandwich.

While being able to indict the other white meat may be viewed as a negative, quite frankly, some ham sandwiches need to be sued.  Starbucks recently decided to sue its meat provider when their ham sandwiches were making people sick.  Sometimes suing is about making it painful enough for someone or some corporation to change their dangerous practices through litigation.  Preventing harm is one of the most laudable goals a litigator can hope to achieve.

So maybe its a good thing that even ham sandwiches are not immune from justice. Because if an inanimate object can be on the receiving end of a subpoena, then truly nothing is above the law.

A Little Hassle Might Be Worth it

This scene from Tommy Boy came to mind recently while I was shopping for car insurance.  Periodically, I shop around just to make sure I am not paying too much.  15 minutes or less right?  Well, not really.  After submitting your information to multiple different companies and looking at your 6 month quotes, you then become inundated with phone calls, emails and even snail mail all trying to get you to switch to a ‘better’ insurance.  For me it all comes down to price.  I understand what I am paying for and what the insurance company is obligated to do.  It’s a contract.  I pay x, you will pay y if I am involved in an accident.  It should be that simple.  But with over 500 billion dollars at stake worldwide, the auto insurance industry is anything but simple.

So one of the selling points of one of the companies I spoke with was that I would be satisfied with my claim.  In fact, it was guaranteed.  Never mind that they quoted me more than double the 6 month premium of a national auto insurance company.  Doesn’t matter that the quote was hundreds more than my current insurance State Farm, which I am more than happy with. (just want to make sure I’m not paying too much)  Didn’t I care about my potential claim experience?  Didn’t I want a guarantee that I would be happy with it?  No.  Let me explain.

At that point I was fed up.  They called me, asked me all the info they already had (I submitted it online), wanted to know how much I was currently paying, and then kept trying to sell me their services without giving me a quote.  They drive a hard selling technique. So, I responded in kind.  I told him I knew he didn’t want to waste his or my time.  I didn’t care about the fluff or frills of the policy.  If they didn’t  hold up their end of the bargain, well, I was an attorney and I would sue them.  So, just tell me how much it costs.  Too much.  Now I knew why he was selling the ease of making a claim with them rather than the price point.

But that got me thinking, are people willing to pay more just so they don’t have as much of a hassle when making a claim with their car insurance?  Clearly, some people might.  Is that a good thing?  Not according to research done by insurance companies.  What do you mean Mr. FitzPatrick?  Well,  according to the results of a 1999 study from the Insurance Research Council, on average those represented by an attorney received 3.5 times more in auto accident settlements.  Im not the only lawyer who knows this.  When do people get an attorney involved?  Usually when its a hassle to get a payout.  Based on the study, if my claim experience isn’t satisfactory, and I hire a lawyer, it’s more likely that I will get a larger settlement? So, really, shouldn’t I pay less to have a hassle free claims experience?  I wish I had thought of that when I was on the phone.

So, I say get the insurance that makes it really difficult for you to have a positive claim experience.  Maybe it is a little self interested, because then you will give a lawyer like me a call.  But maybe its in your best interest because then you might get an attorney, and, on average, you are then more likely to get a larger settlement.

Do Lawyers Literally Fight for You?

A common phrase by lawyers promoting their services is that they will “fight for you.”  It could be a figure of speech, but in a case from 1992 out of Texas, the lawyers almost came to blows during a deposition.  Click the short video to watch it happen. 

Maybe that is just how Texans try cases? But there also is some truth in the phrase to ‘fight for your client’.  It is an adversarial system after all.  And it is not just plaintiff/prosecution vs the defense.  Sometimes, you might have to fight the judge too and it might get caught on camera like it did with this public defender in Florida.

Ok, so there are a few exceptions where lawyers and judges get out of control and  resort to fisticuffs, but that doesn’t mean all lawyers are brimming with testosterone itching for a fight, right?  Right, in fact, studies have shown that lawyers who have higher levels of testosterone (men and women) are, you guessed it, trial lawyers!  On a measurable, physiological level, trial lawyers are different.

Now, a correlation doesn’t prove causation.  Maybe these individuals already had high testosterone levels and thats why they became trial lawyers.  Or, maybe, there is some unknown factor that selects for trial lawyers with high testosterone. The classic example of correlation does not equal causation is the correlation between sexual assault rates and ice cream sales.  They both rise at the same time…in the summer.  At this point, we can’t say eating ice cream causes sexual assaults just as we can’t say being a trial lawyer causes increased testosterone.

What I can say is that when you are face to face with someone and they are alleging you have done something wrong, or that you didn’t follow the rules, your heart gets pumping.  If you don’t have years of practice managing your emotions, you might be inclined to become incensed and lose your composure.  But if you can develop your skill for composure and thinking on your feet, you can take the wind out of an opponents sails.  Let me offer an example.

A little background,  when I was a prosecutor, there was a defense attorney known for coming right up to the line of harassing a witness during their interview statements.  (Think of the video at the top) This statement was no different.  After about an hour, the witness had enough and left despite defense claiming they did not finish their questions.  The defense made a motion to exclude the witness because they couldn’t complete the statement and during the hearing, alleged my witness smelled of marijuana during the witness statement.  I can honestly say I did not smell marijuana and relayed that to the court.  Defense response was that I either was not familiar with the smell or that I was being disingenuous (lying) to the court.  Instead of becoming upset that I was basically called a liar in open court, I reiterated that I didn’t smell anything, but, perhaps, was not as familiar with the smell of marijuana as the defense attorney was.  The judge laughed and denied defense’s motion.

Now an attorney needs to know their audience, and this response might not work with the Supreme Court, but then again, you probably wouldn’t be called a liar by a fellow attorney in the Supreme Court unless there was some pretty good evidence for it.  In retrospect, that older attorney was probably trying to get a rise out of me, but it backfired.  The only way I was able to keep my calm despite the surging testosterone, was because I had felt that surge before in numerous other hearings and learned how to handle it.  In this particular situation the best option was not to fight, but deflect.

So do you want a lawyer who fights or who deflects?  Both.  You want an attorney who can decide when it is time to push and when it is time to step back and let the opposing side whiff.  So be careful of those who want to ‘sue the pants off’ someone else.  Overzealous litigation can not only be the wrong approach, but also end up running up the legal bills.  Then it might be the client who ends up feeling like the one with their pants down.

Do You Have Attention Deficit Disorder?

Watch the Video and see if you can keep track of how many times the ball is passed before you read on.

What was the result? Not what you expected?  Maybe you have seen this video before.  But if you haven’t, what a powerful lesson about the unreliability of our own senses the video conveys.  If someone told you there was gorilla in the video, you would have said no way.  If you were the one who saw it and tried to convince a group of people about what you saw, would you be able to? You might say, “Sure I would, I know what I saw”.

But studies suggest you would probably go with the flow and say there was no gorilla.  In the well studied Asch conformity tests, participants were placed in a room with other ‘participants’ who were not really participants but confederates of the researchers.  The group was given a line of a given length and then told to identify from a selection of other lines, which one resembled the original line most closely in length.  Without going into too much detail, when the group of confederates gave the wrong answer, the participate went along with it  most of the time! Even though they could clearly see with their own eyes that the line was not the same length.  Does that make you think about what you would do if you think you saw a gorilla, but 11 other people say the didn’t?

What does this have to do with law?  Everything.  There is the obvious connection to recent research that eyewitness testimony is unreliable.  It shows how if a jury focuses on one issue (the bouncing ball) they might completely miss the critical fact that proves your case (the gorilla).  But perhaps most importantly it shows how even when presented with evidence beyond a reasonable doubt, a juror might agree with the group and vote against that evidence.

Think of it this way, in any sport there are a thousand different distractions that an athlete could be thinking about.  Sometimes you can see those distractions take over when the 5 year old runs off to chase a butterfly instead of playing the game. A trial is no different than a sporting event.  Ask anyone who has done one, its mentally and physically exhausting.  I speak from experience when I say that a trial exhaustion increases exponentially when it spans over a few days.  And when you’re exhausted, your judgment suffers.

The same goes for jurors.  They have to listen to witnesses drone on and judges read lengthy, monotonous, technical instructions about something that doesn’t personally affect them instead of being out working or relaxing.

So make sure your attorney doesn’t contribute to the distraction.  Find an attorney who can separate the important from the unimportant.  Whether they have learned how to do that through experience, or maybe they have a natural ability.  What you want is someone who doesn’t put up with any monkey business.

Remember to Believe: Forgetting Might Kill You (Or Your Case)


“Whether you think you can or you can’t, you’re right.”- Henry Ford

Henry Ford was on to something when he said those words.  Something so powerful there is even a scientific name for it: The Placebo Effect.  One of the early scientists to identify the power of placebos was Dr. Henry K. Beecher.  In his 1955 publication The Powerful PlaceboBeecher describes how soldiers receiving saline solution instead of morphine still experienced pain releif.  He further went on to explain how this effect was observed 35.2% of the time.  That is powerful medicine, but what does it have to do with law?

At the end of the day, an attorney has to be able to convince a jury that they are right. More importantly, the attorney must believe in their ability to do that.  It is easy to go with the flow and say “that is a crummy case” or give up when pitted against forces that loom large in comparison.  But think of Victor E. Frankel, a noted neurologist and psychiatrist who survived the holocaust concentration camps.  In his book, Man’s Search for Meaning, Dr. Frankel describes one prisoner who had a vision, in February of liberation on March 30th, but died on March 30th when the liberation did not come.  Frankl writes,”to those who know how close the connection is between the state of mind of a man – his courage and hope, or lack of them – and the state of immunity of his body will understand that the sudden loss of hope and courage can have a deadly effect.”  Only when the man gave up his belief in liberation did he succumb to sickness and death.

I am not saying all you have to do is believe you have a case or believe you will win and let the money roll in.  Certainly there are lawyers who don’t really believe in their case and still win.  And actually there is a real need for that in criminal law where a client may confess to their attorney that they are, in fact, guilty of the crime.  The lawyer is required to keep that attorney-client communication confidential and make the State prove it’s case.  If belief in innocence was needed, then there would be a lot of unrepresented defendants.  (Representing individuals attorneys know are guilty in a later post) What I am saying is that an attorney who can sense a wrong, and believes in their ability to fix it has a better chance (maybe 35.2%) at actually fixing it.

I think about that when I take on a case.  I did that when I took on one of my first cases in law school.  A foreclosure case. I read through close to one thousand pages of security transaction documents to find the one piece of information that helped me right a wrong. I believed in my abilities when I took on domestic violence cases as a prosecutor.  Instead of cases being dismissed when it was a male victim, or when the female victim didn’t show, we tried them.  Sometimes the defendant was acquitted. But the fact that there was even one conviction of those types of cases was virtually unheard of.

So, find a lawyer that believes in their abilities.  Not overconfident, but one that is willing to dig a little deeper before throwing in the towel.  Someone that has that american can-do attitude that Henry Ford expressed over 100 years ago.  Because   even if your attorney doesn’t have those abilities, the placebo effect is real and might help win your case.

"I know a guy, who knows a guy"

If you haven’t watched Breaking Bad and you don’t know the fictional lawyer Saul Goodman, check out his real website. But anyone who has seen Jim Carrey in “Liar Liar” knows that Saul Goodman is just the latest in a long line of fictitious attorneys who skirt the law to help their clients. So this stereotype of the shady lawyer must have a basis in reality somewhere right? Yes it does.

In fact, Facebook has it’s own page dedicated to the top ten shady lawyers. Paul Bergrin, to name one of them, is currently serving a life sentence for crimes ranging from prostitution to conspiracy to commit murder of a witness. Here are some more details about him. But don’t be fooled, dishonest lawyers have been around since Abraham Lincoln’s time. See his notes  to young attorneys archived in the library of congress. “There is a vague popular belief that lawyers are necessarily dishonest” Lincoln states in his lecture. The same could be said almost 200 years later, just look at the popularity of shows like Better Call Saul.  A Google search for “do i need a shady lawyer” can bring up dozens of results.

Why do people root for characters like Saul Goodman? Maybe its because the ‘shady’ lawyers seem to know the loopholes. And maybe that is ultimately what matters: knowledge of the law. Knowing what is legal, what isn’t, and what is in the grey area is fundamental to the practice of law. Some lawyers make their entire living by arguing in the grey area. You might say that without a grey area, maybe we wouldn’t need lawyers, everything would be clear cut. Does that mean being ‘shady’ comes with the job?  That depends on the definition of shady. Would you consider this billboard a shady advertisement? 7d50bf2cdd2092c4f3f042050c91b971

The thing is, he is right. Just because you did it, doesn’t mean you’re guilty. You’re innocent until proven guilty. I have tried a number of criminal cases where I had great evidence that someone had beaten up their spouse and committed domestic violence. But, when the victim doesn’t testify, that prevents key evidence from being presented and a not guilty verdict would sometimes follow. The same principle applies for civil law. An attorney who understands legal principles like the one in the billboard above can represent you better.

So, don’t go looking for a ‘shady’ attorney. You might end up being the one cheated and you definitely don’t want to be involved in the disciplinary hearings that are likely to follow when your attorney ends up like Paul Bergrin. Instead, look for an attorney that knows the law isn’t always black and white, can argue it well, and follows Lincoln’s advice to always be honest.