In the aftermath of the Casey Anthony verdict, there was a certain amount of shock and disbelief that spread over the trial’s followers.  Once this initial visceral response had subsided, the verdict itself should not be that surprising.  The standard of proof for a criminal trial is steep.

Beyond a reasonable doubt means that all the defense needs do, is plant the seed that some other scenario is plausible. In other words for the guilty verdict to come in, the evidence would have to establish a particular point to a moral certainty, and that it is beyond dispute that any reasonable alternative is possible.  This case was fraught with evidentiary problems, the greatest of which appeared to be that the autopsy report that could not establish an actual cause of death. It came down to the fact that she “just looked guilty,” but that’s no evidence that can convict someone of first degree murder, or even manslaughter.  Thus, the public at large was outraged while interested attorneys watching the case just shrugged their shoulders in acceptance of the result.

In civil matters like personal injury, the standard is much lower than beyond a reasonable doubt.  The standard is called preponderance of the evidence; meaning that if I, as a Plaintiff’s lawyer, make my case just a little more than my opponent, the jury must find for the Plaintiff, even if they have reasonable doubts.  Preponderance of the evidence simply means something is more likely true than not.

Seems fairly simple, right? Well, I bet you never heard anyone on Law & Order or Court T.V. articulate that standard. In fact, the beyond the “reasonable doubt” is so ingrained in us as a culture that most of us have no idea there are separate standards of proof for differing actions. Therein lies the difficulties in civil trials: getting jurors to understand their job and the standards they are to apply to their decision making.  Our job as civil litigators from the get-go is to explain that this is NOT a criminal trial and that they CANNOT hold us to the criminal standard.  I’ve heard it explained in percentages – “if I present just 50.1% more evidence in my favor than the defense – I win. That’s the law.”  I’ve heard it explained by a scale – “If the defense and I are essentially even and the scales are balanced, and I place just a feather on top of the scale, that is enough to tip the scale in my client’s favor for a verdict.”

However it is accomplished, it is a NECESSITY that jurors understand (and are constantly reminded throughout the trial) of this standard. Otherwise, clients are left sitting next to me at counsel table with the same shock and disbelief as the faces of the those who first heard the Casey Anthony verdict.

No surprise, a good bit of my time is spent reviewing medical records.  As with other professional niches, (and lawyers are not spared from this syndrome) doctor-speak sometimes does not translate well into the real world.  I find the same phenomenon when reviewing traffic collision reports – cop speak sounds funny as well. I remember one police report in particular where the officer wrote that the involved party had exposed his person. That made me giggle. Here too are some highlights from recent doctor’s reports that I found amusing:

1. “Lateral bending to the right causes patient pain on the left side and also pain with prolonged sitting causes her pain and the need to pop the anterior chest.” [Sounds like a bad hip-hop song: Pop, pop, that chest girl!]

2. “Patient comes in for follow-up.  Patient has transitioned from land therapy to pool therapy. [sounds like she’s making some sort of strange evolutionary digression.] I will follow her for one month for further disposition. [wait, he’s going to follow her into the pool for a month? That seems to be above and beyond the Hippocratic oath.]

I cannot tell you how frequently I hear people tell me the following, “Oh, I don’t need an attorney because the insurance company sent me a letter saying their insured was 100% responsible for the accident.”  The problem is that the insurance company and the poor person who was hit, have very different ideas and expectations as to what taking responsibility for that fault looks like.  I would say that the vast majority of my cases are those where fault is admitted, but the insurance company refuses to pay for any of the damages.

Here is a sadly familiar scenario: In the beginning the insurance company admits fault and promises to do everything to make this a quick and painless process. The victim breaths a sigh of relief because they have been told everything will be okay and that the insurance company will take care of them.  At the request of the insurance company, they send the ambulance and doctor bills and records, hopeful the insurance company will take care of it like they promised. They are cooperative and helpful.  Then it happens, the telephone call from the claims adjuster stating the following:

“We don’t feel this was an injury producing accident. We are willing to pay for your ambulance bill, but only your first doctor’s visit, and we’ll offer you a few hundred dollars in pain and suffering.  We’ve looked through the medical records you’ve sent us and we obtained your past medical records with the medical authorizations you signed. Thanks for that, by the way. We see that you complained to your doctor of back pain in 1998.  We suspect you were injured previously, we suspect you have age related degeneration in your spine that is causing your pain – not this accident, we suspect you are faking it….blah, blah, blah.”

This is the point where people start to get uncomfortable and realize the thing that makes me the most angry in this business: admitting to causing it, is not the same as agreeing to make it right.  This trend continues throughout the case, and even at trial can be an effective tactic for defense counsel to employ.  At trial, only relevant evidence is admissible.  Defense counsel routinely try to argue that evidence of fault (i.e. all the details of how the accident occurred and the negligence of their client) is not relevant if fault is admitted.  If they win on this point, a jury could potentially never see all the wrongs that Defendant caused Plaintiff.  If this happens, all the jury sees is a Plaintiff complaining of injuries, and complaining that the Defendant refuses to pay for them.  If the jury doesn’t see all the harms that the Defendant caused the Plaintiff, all they see is a complainer and no one likes a complainer.  This is why admitting fault is essentially worthless in a personal injury claim.  The stance of most insurance companies is, “We did it, but we aren’t going to do a damned thing about it.”

My idea for blogging sprung from a personal injury attorney television commercial I had seen as a child – a very lawyerly looking man in an expensive suit explaining how insurance companies had lawyers working hard on their side, and so should accident victim. I was struck by how unlike that guy I was…and still am.  First off, I’m a female personal injury attorney. Secondly, I haven’t been fighting insurance companies for the entirety of my adult life. And finally and perhaps most importantly, the conception of the personal injury attorney on T.V. seemed so stilted to me. That man in the commercial was to be the accident victim’s voice, but he resembled a sort of attorney-robot without a voice of his own.  That man wasn’t going to listen to a client’s injuries and personal woes, kindly explain the litigation process and what happens at a deposition, or frame interrogatories 150-307 in plain and understandable English.  I secretly believed that man on T.V. had a button on his back that made his arms move when he spoke.  And so it is with so many lawyer websites; they are flush with statistics of their results and impressive qualifications, but not once do they ever enlighten the client/consumer as to what it is they actually do!

My blog started as just that: a telling of what I do throughout my day with a mix of information on personal injury topics that are commonly asked or misunderstood.  Blogging is not eloquent or over-edited. Blogging is free-flowing, creative and often messy – going deep into those places we lawyers fear to tread.  As a logical, rule-based and organized bunch, it can be hard for us to appear….well, human.  Those framed diplomas on our walls have become our safety-blanket, acting to insulate us from the world of non-lawyers around us.  This is both a blessing and curse.  I noticed through my blogging that clients have reached out to me more, and eye me less suspiciously with the advice I provide.

Soon after I began blogging I discovered another of its unexpected benefits.  Not only was I reaching my client community, but I was also communicating with other lawyers.  In a profession where contention and litigation are goals, not behavior modifying obstacles, lawyering can be a lonely enterprise.  Through my blog I found others who had similar experiences, failures and triumphs.  Blogging is networking in a way that provides valuable and “real” information.  For example, I can hand someone my card and tell them to call me if they ever need a personal injury attorney.  But what does that card tell them? Nothing more than I work for a firm that has a nice sense of style and color palate.  However, they can read my blog and in a few minutes have a true sense of who I am and the services I provide.  The referential impact of blogging is limitless.  I frequently read legal blogs of all different practice backgrounds and I learn about trends in the practice area, but also about the lawyer’s actual experiences – something, we all know was never taught in law school.

In a profession with an astounding 18% instance of drug and alcohol abuse, blogging can also be a cathartic and stress relieving venture.  Although every week or so I wander around the office grumbling about having to set aside the time to blog when I have pressing (if not looming) litigation deadlines, I find once I commit to the writing, I achieve personal satisfaction unparalleled in my day-to-day practice.  Being able to blog about that petty, underhanded  motion to compel opposing counsel just served on me allows me to blow off some steam and refocus my energies on other more important things.  Invariably I receive an email or call from someone who has had an identical experience – sometimes with the same opposing counsel.

The simple truth is, that undertaking the task of finding something to blog about forces me to focus my energies upon that particular subject. The chaos of the day is distilled down into a one-page entry, and I have to make myself a specialist on that particular topic.  The real work and the healing property of blogging lies not in what is actually written, but in the thought and care it takes to decide what it is that is worth writing about.  So, although I began my blog to provide information to clients regarding what it is I do for them, along the way I discovered that my blog reminds me that there is meaning behind what I do in the day-to-day grind

So, I’m reading a file in a matter we were recently hired to handle.  There are multiple Plaintiffs in the case.  Apparently, before we came along a few of the attorneys on the file had some trouble playing nice with each other.  The attorneys involved (again, not our firm; not our client) appear to have exchanged some hilarious letters.

There had been two Court orders that discovery was closed before we got into the case. Thereafter, despite the Court orders, Defense counsel noticed depositions. Big “no, no” after the closure dates.

Here’s the beginning of the first letter I come across in the file from a pretty annoyed Plaintiff’s lawyer regarding the recently noticed deposition:

“Dear Defense Counsel:

How did you know I was a fan of fiction? I just finished reading your letter of January 4, 2011.  I understand you were involved in a big important trial in the Bay Area and therefore may not be totally up to speed on what took place, but let me see if I can help…”

For the rest of the letter, the attorney predictably proceeds to catalog all the ways discovery is closed and the deposition cannot proceed.  I turn the page in the file and find a second letter to this same defense attorney from a different, yet equally annoyed Plaintiff’s lawyer:

“Dear Defense Counsel:

As you know, pursuant to two separate court orders issued by Judge So & So in this case, discovery is “closed.”  I am not sure what part of that term is unclear.  The first definition of the term closed in Webster’s is “not open.”  Perhaps that is the best way to look at the status of discovery in this matter. It is not open.

Hilarious. I got a good crash course on how to craft a nasty-gram. Also noticed from the file that the deposition did not proceed.

Today marks the start of the claim against Sacramento County Child Protective Services filed by John Demas of our firm on behalf Kyle Doe.  Prior to today’s press conference announcing the filing of claim, Kyle drew national media attention for his daring escape from torture and captivity from a Tracy home in December 2008.

I say this marks the start of the claim, however, the ordeal that Kyle suffered at the hands of CPS’ ineptitude started over ten years ago.  CPS turned a blind eye and brushed numerous allegations of abuse and neglect under the rug for years.  In doing so, they left a vulnerable child in the hands of an abusive monster.  Having worked on this claim, I can attest to the excitation of two states of angry: “Lawyer” angry – where I just cannot believe how systematically negligent an agency can be in attempting to carry out the most basic of duties; and “Mom” angry – where I cannot believe any child was forced to endure such a horrific existence.

Although CPS is charged with protecting children, time and time again they missed glaringly obvious signs that Kyle was in eminent peril.  For example, in 2001, CPS accepted a half-paged, hand-written sheet of paper, stating falsely that Caren Ramirez was Kyle’s aunt, as proper authority to leave Kyle with Ramirez indefinitely.  They did not try to find Kyle’s mother who Ramirez alleged signed the note, or substantiate claims that Ramirez was a relative.

A couple of years ago I tried to adopt a dog from a rescue.  I filled out lengthy applications, was subjected to a background and reference check, and provided proof of financial stability.  I then had to complete an interview and two home visits, before ultimately being told that because I had two children under the age of five in my household, I could not adopt the dog.  But in this case, CPS granted a human life to a mad-woman based solely upon a half-sheet piece of paper.

I think John said it best, “We are prepared to prove that CPS completely abandoned its legal responsibility to protect Kyle not once, but repeatedly, after failing to act on multiple reports and substantial evidence of abuse.  Ultimately, this is serving notice that the CPS system is badly broken and needs to be immediately fixed.”

Caller: Hello, I’d like to set up an appointment to speak to you about a car accident I was in.

Me: Why don’t you tell me a little about the accident before you come in to see me.

Caller: Sure, it was a terrible accident, this guy ran a red light and t-boned me in the intersection going about 55 mph. I was really hurt and had to go to the hospital. The police came to the scene and said he was responsible.

Me: I see. It sounds like you are lucky to be alive; that’s a hard hit. How are you doing now?

Caller: The doctor says I have to have a spinal fusion.

Me: [thinking this is likely a big case]  I see. What hospital where you seen at and did you go to the hospital by ambulance?

Caller: No, I went with the police officer.

Me: Why did the police officer take you to hospital?

Caller: No, he didn’t take me to the hospital.

Me: [now a little confused] Oh, where did he take you?

Caller: To the police station.

Me: [more confused] Why did you go with the officer to the police station after the accident???

Caller: Because I was arrested for a DUI, driving on a suspended license and not having any auto insurance.

Me: So let me get this straight – you were driving while intoxicated at the time of the collision, didn’t have a license and don’t have any car insurance?

Caller: Yeah. So, do I have a case against this guy who hit me? Can you guys defend me for the criminal part too, because I have a court hearing for the DUI on Wednesday.

In what is often referred to as the bane of my professional existence as a plaintiff’s lawyer, the infamous McDonalds case has resurfaced again. Since it inspired the title of my entire blog, I thought I should spotlight its latest phoenix-like rise.  It comes back into the watchful eye of popular culture now in a different light and this time appearing on the big screen.  Producer and lawyer, Susan Saladoff, just debuted her film, Hot Coffee, at the Sundance Film Festival.

The film chronicles the motivations behind cooperate America’s divisive campaign to turn one woman’s painful ordeal into a sound-bite of mockery, absurdity, and a call for tort-reform.  Few people know the story of the case in its entirety – for example, despite an eight day hospitalization with extensive and painful skin grafting of her groin and genital area with exorbitant medical bills, the 79 year old Grandmother sought to settle her claim for only $20,000.  McDonalds outright refused, even when faced with more than 700 claims by people burned by its coffee before this particular incident.

Ms. Saladoff’s poignant  movie goes beyond the sound bite to discuss why this case continues to haunt popular culture and how it was marketed for propaganda purposes. Here is a  blurb from the Hot Coffee website:

“Seinfeld mocked it. Letterman ranked it in his top ten list. And more than fifteen years later, its infamy continues. Everyone knows the McDonald’s coffee case. It has been routinely cited as an example of how citizens have taken advantage of America’s legal system, but is that a fair rendition of the facts? Hot Coffee reveals what really happened to Stella Liebeck, the Albuquerque woman who spilled coffee on herself and sued McDonald’s, while exploring how and why the case garnered so much media attention, who funded the effort and to what end. After seeing this documentary film, you will decide who really profited from spilling hot coffee.”

It was well received at Sundance, and I can’t wait to sit down with a not scalding cup of coffee and watch the flick in its entirety.

Contrary to the belief of the general populous, many of my clients who first come to me are not really focused on money. Most have a healthy dose of outrage that the insurance company is denying to pay them for even the most basic and related treatment. Most are scared that they are going to need future medical care. Others are quite simply overwhelmed by the process and looking for a professional life-preserver.

But in the end, the only “helper” the civil law allows me to recoup is money. My plaintiff’s lawyer arsenal did not come with a magic wand to waive and put my client back to the healthy condition they were in before the accident happened.  And so the conversation must inevitably come to money. But, NOT at the beginning of a personal injury claim – not in the days, weeks or even first few months after the accident.  Often clients who meet me for the first time discuss the facts of their case with me, describe the treatment they’ve received, and then they look at me and ask, “how much do you think my case worth?”  The problem is that this is an almost impossible question to answer in the beginning, and no lawyer worth their salt should answer it in any other way other than: “It depends.”

Although this answer is often met with skepticism and disappointment, a Plaintiff’s lawyer who tells you this is not trying to pull the wool over your eyes, they are really being a good advocate for you. When you are still treating for your injuries, we don’t want to settle your case. Your claim is simply not ready to settle. What if you fail to recover? What if you get worse? Each day that you are experiencing pain or healing from your injuries goes directly to your claim for pain and suffering.  If you settle while you are still suffering, you will never be compensated for your present complaints.

Secondly, most of time people who are seeking the advice of the attorney do not know how much insurance covers the case.  Ultimately, it doesn’t matter what the case it worth, it matters if there is money to cover what the case is worth.  Even if you have a personal judgment against the person who hit you for a million dollars, it’s just a worthless piece of paper if the defendant doesn’t have a dime to pay.

Finally, insurance companies vary so widely on what they offer and to what kind of case, that it is difficult if not impossible, (my arsenal also doesn’t come with a crystal ball) at the beginning to assess when that company will pay the money deserved. The lawyer needs time to develop the case to maximize recovery for your injuries. There’s a lot of strategy involved to decide when is the best time to settle a case. And so, in the beginning, the question of “what is my case worth?” is really one of the most difficult ones to answer.

Plaintiff’s lawyers are a mostly male bunch. And when I say, “mostly male,” I’m not so much commenting on their gender, but on the spectrum of maleness – Plaintiff lawyers tip the scale to one side to the nearly, “good ‘ole boy” order. My real life experienced of how I arrived at this stereotype: 1) Last year I attended my first Plaintiff’s Lawyers Statewide Conference.  In walks a very successful plaintiff’s lawyer who’d I put in his late sixties (for the sake of my bourgeoning career, I will refrain from identifying him by name).  On the arm of his ridiculously shiny three piece suit was…count them, not one, not two, but three buxom blondes who appeared to be all of twenty- two, and I can safely say after overhearing the conversation, were not in law school. They were also not his daughters; they were not his granddaughters.   2) The first time I appeared in court with the partner of my firm, the bailiff stopped me as I walked through the swinging doors to counsel table and told me that as his secretary, I wasn’t allowed at counsel table and I’d have to sit in the gallery 3) As part of our plaintiff’s lawyer’s listserv someone mistakenly posted the question, “who’s good on knees” – presumably asking if anyone knew of an orthopedic surgeon in town. One of the good ‘ole boys who hit “Reply to All” responded, “my girlfriend.”  4) I was given the grand tour of a lawyer’s sprawling office, and when I inquired as to why there was a stuffed warthog mounted in the men’s bathroom, he retorted, “because we are male-chauvinist pigs.”  On any given day, I frequently walk into a room of trial lawyers as the only female in the room.  What’s worse, the stereotype that a Plaintiff lawyer should be male, has spilled over into the clientele who believe that in order to do my job I must look like that guy on T.V. who says, “The insurance companies have lawyers working hard on their side, and so should you.”   I’ve had clients actually say to me, “no offense to you sweetheart, but I don’t want you to get bullied by the men.”

The truth about Plaintiff lawyering in general, it’s a tough group to break in with, but once you do the work itself is totally conducive to women attorneys.  The skills necessary to manage a household and necessary to manage a large client case load are pretty damned similar.  You always have one kid getting into to trouble, one who is ultra sensitive and you will have to treat gently when you give him bad news, and one who, no matter how much you call, never calls you back!  Both jobs require you having to attend to a million fires a day without anyone ever seeing you break a sweat.  Plus, bonding with juries and understanding the motivations of when people will step-up and help, is something with which women are uniquely attuned.  So, I’ve used my oddity as a female in a male-dominated profession as a benefit.  It’s not always easy working with the boys, but what I lack in flannel and gun-toting, I make up in good ole feminine wiles.