Transcription details:

Customer Name: Natalie Petronovich

Date: June 13, 2017

Speakers in the audio file:

Speaker: Nicholas Rowley

Mirasol

Woman

Different people from the audience

“Non-Economic Damages”

[1:40] Speaker: Where online can you find out what a day of suffering is worth? Anybody? And so
we’re… I mean, how many people here struggle with what’s it worth? I do. So, if we’re struggling
with it do you think that maybe jurors might struggle with it too? They do. So what I want to do is
whenever I do one of these and, you know, I want to teach someone something I want to learn
myself, so we take this as a kind of… imagine we’re in a laboratory and we’re all going to learn
something new together. I hope I’m going learn something from some of you here. But to really
learn we got to start from the beginning. I could sit here and lecture and talk to you about non-
economic harm and non-economic damages and, you know, how to ask a jury for money for that.
And then brag about some cases where I’ve got some great non-economic damages verdicts, or
tell you some stories about cases where I haven’t. But you’re not going learn unless we start from,
really, the ground up. So, in order to figure this out, what I did, and I think you all have a copy of it,
is we look at the law. Right? ‘Cause that’s where all lawyers, they look at the law, and I have 3905A
of the California civil jury instructions. If we, if we start out with the premise. The markers don’t
work.

[3:45] Audience: *giggles*

[3:58] Speaker: If we start out with the California jury instruction, what does it say about if a person, if a
human being is suffering non-economic harm, does it say that they should get money for that?

[4:19] Audience: They must.

[4:21] Speaker: They must. Not should. So we start with the, you know, the law says that people must be
compensated for whatever their non-economic harms are. That means if I hurt you, or you, and
let’s say that all the medical bills are taken care of and let’s say that I pay all of your medical bills,
whatever they are. I still, under 3905A, which is the law of the land, I still owe you non-economic
damages. I owe you a compensation for that. How much? What percentage of your non-economic
damages do I owe you?
[5:08] Audience: A 100%.

[5:11] Speaker: A 100%? Why?

[5:13] Audience: *inaudible*

[5:17] Speaker: No, may not be fair. In fact, let’s just assume that it’s completely unfair. It’s the law. You
get a speeding ticket, right? If you’re driving and you’re doing sixty-five and a forty-five, tell the
officer “Well, it’s unfair”? No, it’s the law. So, if we just start with that basic fundamental premise,
when you injure somebody, when you hurt somebody, you change their life. That the medical bills,
the paycheck losses, the economic damages, whatever, you know, they miss work, you owe them
that. That’s the law. But you also owe them non-economic damages too, or compensation for non-
economic damages. So for purposes of today, let’s start out with, I guess the next thing is, how do
you evaluate a case. What’s a case worth? If I call you and I say “Hey, I got a case”, and the person
was hurt, are you interested? What are you going to ask her?

[6:27] Audience: *inaudible*

[6:31] Carl: Don’t ask the meds.

[6:35] Speaker: How you doing? Carl lost his son recently. He’s twenty-seven years old. So, I haven’t seen
you since. I’m sorry. Don’t ask the, what the meds are. Why?

[7:10] Carl: *inaudible* They don’t care about the client, what they went through. They don’t care about
the grief, they don’t care about the pain, they don’t care about how it changed their life. They just
care about *inaudible* That’s all you’re ever going to get. That’s where you evaluate it. You’re just
another jester, you know, you’re just *inaudible* jester in disguise. You’re not an attorney.

[7:41] Speaker: You and I have talked about cases before. Do I, what most people do, what most lawyers
do, is you get a call and a case and say what are the medical bills? Right away we’re already
focusing the case on economic damages. And the defense industry and the insurance, the jesters,
they beat us down in the economic damages arena. They can say, “Well the medical bills are too
high”, right? That doctor charge too much.

[8:16] Carl: *inaudible* We’re going cut it in half and they don’t mean anything. They already cut the
bill, so they don’t mean anything. I know you’re going cut it and you’re never going pay the bill a
hundred percent and everybody knows that. So, that’s not the way you evaluate it.

[8:36] Speaker: So, if the way an insurance company is going look at your case when you start talking to
them about economic harms, is that way? They don’t talk about economic harms. In fact start
doing separate demand letters. Separate demand letter just for non-economic damages and cite
to the law. I don’t want to talk about the medical bills. In fact here are the names of all the
different medical providers. You, mister insurance company, all state, state farm, whatever, call and
negotiate those and pay them off, please. Take care of those and then work out a deal so that,
‘cause here’s the future care that my client needs. Find somebody who’s willing in advance to
contract to provide my client with the care that he/she needs for the next ten to fifteen years. Get
that contract going, pay for it, so then the economic harms part of this case is done and over with.
I don’t want to talk to you about that. Let’s talk about the non-economic damages. Has anyone
ever tried that? When you do that, it changes the conversation. Changes the dynamics. You say I
 want you to focus on the law. And what we have is we have a human being and they’ve been
injured for, let’s, let’s take a case. You know, we’re in a laboratory here. Who’s got a case? None of
you guys, you’re all lawyers you don’t have a case?

[10:10] Audience: *laughs*

[10:13] Speaker: Okay.

[10:15] Marisol: Collision where?

[10:17] Speaker: Come up here. I don’t want to hear you just talk. That’s my job. I’m going to ask you
some questions. Okay. So, medical bills aside. Do you have a person you’re representing? Is it a he
or she?

[10:36] Marisol: She.

[10:37] Speaker: Okay. And if you were to step into her shoes. What’s your name?

[10:42] Marisol: Marisol.

[10:47] Speaker: Marisol. Okay. And how do you stand? Put your hands in your pocket? Okay, alright?
Let’s get in there. Okay, can I call you Mari? What’s going on?

[11:17] Marisol: My marriage has been turned upside down and ruined by this crash.

[11:13] Speaker: your marriage? When did this, vehicle collision When did it happen?

[11:32] Marisol: Three years ago.

[11:34] Speaker: So if I were to go back in time, three years, what does your life look like?

[11:47] Marisol: Fine. Just go to work. Take care of the kid, be with my husband. We’re happy. Things
weren’t perfect. There was always problems but things are fine and I feel good about myself.

[12:01] Speaker: What does your body feel like?

[12:03] Marisol: My body feels good. I’m actually very proud of that. I like the way I look, three years
ago.

[12:10] Speaker: So, three years ago I mean that’s almost a thousand days, ‘cause there’s three hundred
sixty-five days in year so that’s maybe actually more than a thousand days. If it, take a couple of
steps that way. And I just, what I’m trying to do here, Mari, is I’m trying to just figure out, ‘cause
it’s my job as your lawyer to really kind of figure out what a fair, reasonable, value is for these
things they’re called non-economic damages I’m going to go over them with you. But I want to
understand in that three year period, really, what you’ve been through. That okay?

[12:51] Marisol: Yeah.

[12:56] Speaker: So the law tells me that physical pain is one of the things that a jury, or in this case,
there’s probably an insurance company involved too that insures the person that hit you, the
physical pain is one of the things that if you’ve gone through that then we have to figure out what
a fair amount of money is for physical pain over the past three years and also into the future,
 however long, you know the doctors say you’re going to hurt. But physical pain, if we go back to
this, the beginning, and you are where you are now, how many days of physical pain have you had
from the beginning? When your body felt fine to where you are today?

[14:13] Marisol: The worst was down five or six months. It’s not completely gone. It got to a point where
it’s still kind of there. Sometimes it’s worse in other times but it wasn’t as bad as it was in the
beginning. So, I’d say five to six months pretty bad, and then the time since then, well but better.

[14:35] Speaker: Has been there a day where you don’t have physical pain?

[14:40] Marisol: Sure.

[14:41] Speaker: Okay. How many days a week would you say were you pain free? Where your body
feels the way that it did back in the beginning?

[14:53] Marisol: I don’t know, that’s a lot of days to say over the last two and a half years. How many
days where I was completely hurt versus days where I’m in some pain. It happens a lot. And it
seems to me like it’s, you know, every other day or every couple days it seems like it’s, you know,
like I don’t go through a week without feeling really something.

[15:15] Speaker: Okay. So, when we have a, cause nobody’s going to believe unless you really have, I
mean unless it’s something you can see, unless it’s something you got a clear picture showing
here’s the pinch on this nerve and even when you have that or some abnormal EMG study
showing that this nerve is damaged. Even with that nobody’s going to believe that every day is a
painful day. We all have good days and bad days, right, when we’re in pain? So, when we’re
looking at what non-economic damages are worth, and we’re looking at pain, you look at the time
period and when a person answers honestly the way that Marisol just did and says well, you know,
there been some days where I don’t have pain and then you break it down into a week ‘cause this
is called the time period really for, right? Every item of damage is going to have a damages period,
like the time period. So what I’d say, okay physical pain, you’ve got five months, based upon what
I’m hearing, five months of bad pain. And let’s do the math how many months… thirty-six… thirty-
one more months, thirty-one months of weekly pain. Now to make this real, what do we do to
make it real? What we need to do is go to points in time during this three year period. That she
can tell her stories or her family members ‘cause once we have the damages purely identified,
then we take our lay witnesses and we have them plug in stories along the timeline of the pain.
And those are the stories that we tell to our jurors. Those are the stories that, whether it’s in a
declaration or whether it’s by deposition or whether it’s by a written letter or a recording,
however you want to get this documented and present it to an insurance claims representative
you say here’s a point in time that tells a story of the five months of bad pain and the thirty-one
months of weekly pain. So we go to and I’m going to have to seat down. Let’s take a, now that
we’ve just identified a time period, I want someone who has a human being they’re representing
who can give us a story of pain along a time period, right? At some point in time during a timeline.
Okay…

[19:00] Woman: *inaudible*

[19:02] Speaker: Yeah, well, let’s just pick a point in time. Give us a story of pain.
[19:15] Woman: So, I got into a car accident in August and my head hurts so bad afterwards I didn’t
know what to do so I went to sleep and my boyfriend have kept trying to keep me up all night and
I wouldn’t stay awake. So, the next morning I thought I would be okay and I went to work. And I
threw up all day long because of that car accident and I hit my head. And finally my boss sent me
home and he said “you need to go to the hospital.” So, my boyfriend picked me up, my head was
just throbbing and I sat in the hospital and I was trying to fill out forms and my boyfriend had to
tell me what our address was ‘cause my head just hurt so bad I couldn’t even really see and they
just sent me home. They just said I had a concussion and that I would be fine. And I slept for four
days after that. I couldn’t even go back to work. My boyfriend just kept waking me up and asking
me questions and trying to drag me back to the doctor, but I think that that throbbing headache, it
just felt like probably the most excruciating pain I’ve ever felt in my entire life.

[20:35] Speaker: So if we take what we just heard, who are the witnesses? How many people think that
the emergency room saw, you know, four hundred patients that day documents what’s really
going on with her? They had sent her home. Probably not. And the insurance company is going to
look at and the defense experts are going to look at, and therefore, the jury, if you give the
defense lawyer control over your case, is going to look at the emergency records and say “listen,
she went in, she had complaints of headaches and some nausea and we sent her home and she
didn’t come back for, you know, 4 or 5 weeks. She must be fine, right?” So the witnesses that we
get from that story is we get the boyfriend, right? But he’s a little close with her so he, you know,
he might not be that objective. But how about the boss? The boss that sent her home. The boss
that sent her to the hospital. And the boss who didn’t see her come back to work. A person from
her job who can say “Oh I remember that day. She’s, um, what do you see, she’s there you know,
she’s vomiting in the trash can she’s got, you know, looks like hell. I said you gotta go to a doctor. I
sent her home” “When did you see her next?” “Many weeks later.” Did the same person come
back to work? That she would originally hired? You’d say no.

[22:12] Woman: So, she came back to work. And I noticed she just didn’t seem like herself. She used to
be one of those types of girls who was really bubbly, always cracking jokes. I would say she was my
best employee, and I noticed she kept making mistakes but I didn’t really put it together. So finally
I pulled her aside and said, “Listen, you’re my best employee I don’t want to fire you. What’s going
on?” She told me that the doctors said that it might take a little while for her to feel “normal”, so I
felt bad for her. So, I let it go a few more weeks, she kept making mistakes and I felt bad ‘cause I
can tell she just didn’t seem like herself, she was out of it, she was quiet. And so, I moved her to
the front desk and I just had her kind of like as a receptionist and had her make coffees because I
couldn’t afford to have her do work because it was just the liability.

[23:09] Speaker: What time frame are we talking about from the time that she is, I guess, you send her
home?

[23:16] Woman: She got into the accident August thirteenth, and she came to work on August 14 th.

[23:22] Speaker: Okay.

[22:23] Woman: I sent her home on August fourteenth, she came back to work a week later and then
she stayed working until the beginning of November and then that morning in November was
actually the day after Halloween, she just called me out of nowhere and said, “I can’t come back to
 work. I just, I’m too overwhelmed. I don’t feel like I can do it. I just, I can’t get out of bed. My head
hurts too much and I just can’t. I’m sorry.”

[23:53] Speaker: Okay. So, from this time frame you hire somebody back in January. She has this car
wreck, comes back to work the next day. A week later, a different person comes, shows up. When
she finally calls you and says, “I can’t do this anymore.” With brutal honesty, is that kind of a relief
for you?

[24:19] Woman: Oh yeah. I mean, I didn’t want to fire her. I felt bad for the girl, but yeah of course. I was
looking for things to give her, quite honestly. I didn’t really know what to do with her. And she
used to be my best employee.

[24:35] Speaker: So, take a time out really quick. Look at that list of what 3905A says other than physical
pain, we got, you know, she’s throwing up, she’s got a headache. What other items of non-
economic damage, non-economic harm fit within just this little piece of a story we just heard?
During this time period?

[25:04] Audience: Humiliation.

[25:05] Speaker: Humiliation. Why?

[25:08] Audience: Because suddenly she has suddenly become stupid in the work that she’s been.

[25:12] Speaker: So humiliation, does the law say that we have to give money for humiliation? We have
to put a dollar value on that?

[25:25] Audience: Yes.

[25:26] Speaker: Okay. Alright. So, humiliation. What else? What else from your list of what the law says
a human being is entitled to if their life, if they’ve been hurt, what else is this human being really
heard about entitle to?

[25:55] Audience: Loss of enjoyment of life.

[25:57] Speaker: Loss of enjoyment. Why?

[25:58] Audience: *inaudible*

[26:04] Speaker: Loss of… Does the law actually say that loss of enjoyment of life is a separate item of
non-economic harm in addition to physical pain? That’s what the law says that you have in front of
you? Okay. What else?

[26:28] Audience: Anxiety.

[26:31] Speaker: Well, how’s anxiety different than loss of enjoyment of life and humiliation?

[26:39] Audience: She has to deal with her anxiety while she’s at work. During that period of time, when
she’s having her trouble with work to herself. And having to deal with the anxiety of whether she
*inaudible*

[26:55] Speaker: Anxiety that someone’s going to, you know, might get my job done.
[27:01] Audience: *inaudible* Anxiety about what happens next… *inaudible*

[27:15] Speaker: What else does the law say that matches up that human being, matches up just to what
we’ve heard so far?

[27:21] Audience: Physical impairment.

[27:25] Speaker: Physical impairment. Sh*t, that’s actually in there. There’s a separate item of non-
economic harm. What else?

[27:51] Audience: Loss of self-worth.

[27:53] Speaker 1: Is that in here?

[27:55] Audience: Mental suffering.

[27: 57] Speaker 1: *inaudible*… Mental suffering in addition to this? Alright. Will someone tell us how
mental suffering is different than anxiety?

[28:16] Audience: *inaudible*… She doesn’t know whether it happens again. *inaudible*

[28:30] Carl: I think anxiety has nothing to do with specific, something specific. If you’re afraid you have
anxiety about something A, B, C, D. But mental suffering can be something in general.

[28:44] Speaker: You know what? You know what I do when I’m trying to figure this stuff out? And talk to
a jury about it? I looked at the definition under, you know, whatever Websters are on the internet.
Will someone type it in? Mental suffering? Let’s find the definition. And would someone else find
the definition of anxiety? And as you’re doing that, it’s important that you go through, if you want
a jury to fully compensate a human being who you’re the one to represent for the full gambling of
all their non-economic damages, you better take the time to go through every single item of non-
economic harm and match it up to stories from that person’s life with, not just expert witnesses,
but lay witnesses. People that are friends going through with your client, going through the
stories, all throughout the timeline. ‘Cause when you start adding them up, then you tell a jury, or
if you’re writing a demand letter to an insurance jester, or you’re talking to a, yapping
*inaudible*… so you’re talking to a mediator and you break these things down and you have a
story for each and every one of them, then it’ll have value. But if you don’t take the time to do the
work and have the stories and break them all down, then it’s just going to be lumped together and
they’re going to be focusing on the economic damages, which is what the insurance companies
and the defense, whether it’s before trial or during a trial. Once everybody… want the focus to be
on the economic damages, not the non-economic harms, so if you want people to focus on this
you gotta do the work. Someone got the definition for me?

[30:51] Audience: *inaudible*… An experience of unpleasantness and aversion associated with

perception of harm or threat of harm and *inaudible*

[31:03] Speaker: Okay. So, give me the first few words.

[31:07] Audience: An experience of unpleasantness and aversion.

[31:10] Speaker: So, I’d take that definition and I put it out in front of the jury. The feeling of pleasant,
unpleasantness or aversion. What’s anxiety?
[31:24] Audience: A feeling of worry, nervousness, or unease, typically about an imminent event or
something with an uncertain outcome.

[31:31] Speaker: Alright. Different definitions, right? I mean, they’re related. One can come with the
other. And I think the law acknowledges that, you know, one comes with the other. That they are
separate. They have separate definitions, they’re separate words, and it’s a separate harm to the
individual who’s been hurt. And the law says we give a separate dollar amount for each separate
item of harm. Does the law tell us, when we look at 3905A, does the law tell us that we just lump
off all these things together? Or does it say that you give a separate value for each separate item
of harm. What does it say? Actually it’s under 3900 and it says that you must, a jury must, award a
dollar amount for each separate item of harm. That’s under 3900 introduction to our damages
instructions. So is that, how many people point that out to the jury and break them down? I do.
How many people have failed to point that out to the jury and break them down one by one and
address each specific item over the time period that the human being we’re representing is
enduring each of these things? I failed to do it. Sometimes it is what it all is and maybe the judge is
pushing us along and we give in and we don’t take the time to go through each of these items
non-economic harm. What happens then is you haven’t given your jury the ammunition to come
back with the big non-economic damages verdict. What’s a big non-economic damages verdict?
For a big lifelong non-economic harms is reasonable and fair. It’s not greedy, it’s not winning the
lottery. It’s just following the law and applying it to the facts of your case. So people ask, well how
was it? Nick Rowley did you get these giant record non-economic damages verdicts. I do this, I
break it down. And I spend time and I understand, you know, what the human being I’m
representing has gone through. I talk to their family members, I look at the medical records, their
therapist records, and I pull out stories all throughout the timeline and I match them up to each of
the items of harm. What’s another item?

[34:14] Audience: Inconvenience.

[34:15] Speaker: Inconvenience. Well how, how could, how’s this girl who suffers the head injury, mild
traumatic brain injury, how’s she suffer inconvenience.

[34:27] Audience: *inaudible*

[34:29] Speaker: What? That’s inconvenient? Isn’t that fun?

[34:35] Audience: It’s inconvenient when I spend thirty, forty-five minutes looking for my car in the
parking lot, it’s like I always get lost.

[34:47] Speaker: So, if a person is going to suffer inconvenience but say for four years past. What does
the law tell us to do if a person is, you know, had, say, four years of medical appointments. This
cause them inconvenience, so do we give them a dollar amount just for the inconvenience? Yeah.
What if none of these things, what if the jury just comes back, says this has just been really
inconvenient? Does the client still get money just for inconvenience? Under the law they do. What
if they’re going to need to go to some sort of therapy or medical appointments for the rest of their
life for another fifty years? Does the law say a person must be given money for the fifty years of
inconvenience of having to see doctors, sitting in waiting rooms, driving to the appointment,
standing at the pharmacy, doing their exercises, doing their stretches, doing all that sh*t that they
 otherwise wouldn’t have to do if *inaudible* and shattered their lives? Law says they get fifty
years of inconvenience if they’re going to live for another fifty years. That’s what the law says. Fifty
years of mental suffering, fifty years of physical impairment, add to that, a separate item fifty years
of humiliation for through being defer. Fifty years of anxiety, wondering which day am I going to
wake up with pain or what’s next. Am I really communicating right or how do people look at me?
Am I stupid? Fifty years of loss of enjoyment of life and physical pain. As supposed that might just
be the most little part of it all, right? ‘Cause we all have pain. What else? Is this the end of it all, of
the list of non-economic harms that a person must be compensated for?

[36:58] Audience: Emotional distress.

[37:01] Speaker: Well how’s emotional distress, someone look it up, different from mental suffering?
Ain’t that kind of redundant? Let’s find the definition, right? ‘Cause if I’m sitting on a jury and say,
“Well isn’t that redundant?” I mean, if we gave a person, if we gave him or her money for mental
suffering all for fifty years, do we really put emotional distress on there? Tell me why it’s not
redundant. Somebody?

[37:37] Audience: *inaudible*

[37:48] Speaker: The law says? The law says that this is different? The law doesn’t just left those two
things together? Are they even, does one follow the other with a comma?

[38:00] Audience: *inaudible*

[38:09] Speaker: So, should I give a separate dollar amount for fifty years of mental suffering and also
emotional distress? Or must I?

[38:25] Audience: *inaudible*

[38:35] Speaker: So, if I’m a juror and I’ve taken an oath to follow the law and give a pristine verdict in
the, in this person’s life has been changed for fifty years into to the future, I must? Okay. Does it
end here?

[38:57] Audience: What about grief?

[39:01] Speaker: Grief. Well, what’s grief? Somebody? Definition? I mean, we’re all civil lawyers here.
Don’t we have these definitions ready, right? We’re supposed to know this shit so that we can, you
know, do our job for people.

[39:24] Audience: Tremendous amount of sorrow and sadness. I didn’t look it up, it’s just a guess.

[39:30] Speaker: A tremendous amount of sorrow and sadness. If you’re body has been changed for life
will that cause you a tremendous amount of sorrow and sadness?

[39:49] Audience: Yeah, it would. Why? Because I can’t move or function the same. In my case, I like to
run. If I couldn’t run it would cause me a tremendous amount of grief. ‘Cause I couldn’t do
something I really, really like and that would make me feel really sorrowful and sad.

[40:09] Speaker: Come up here! Let me give you a little grief. So, if we’re here in a jury trial and we’re all
jurors, I want to hear, get to grief, what’s different about grief?
[40:31] Audience: For me grief is a real feeling that comes over me that I just can’t do things the way I
used to. I just told you all a minute ago I like to run, I like to move around, I like to be active. And if
I’m not moving around, running, or active I feel sorrowful and sad. I get in my head, I feel bottled
up, I feel limited, and I feel dysfunctional, and that causes me a lot of grief. I don’t know what else
to say.

[41:09] Speaker: I love it. I just learned something because what I’m thinking of is, I feel, to me, grief
feels like this. Like it’s something that someone’s just put on me. Like, just stop giving me grief,
honey! Right? Just, I just wish, I mean… It’s not really something that we put words to as much as
it’s something that we feel, right? I think I’ll, the next time I try a case I’ll be able to talk better
about this side of grief. Thank you. What else? Is there anything else when it comes to non-
economic harms that… Loss of enjoyment of life? I think I put it up here.

[42:03] Audience: *inaudible*

[42:29] Speaker: You’re right. Yeah, there’s actually a bracket under the law that says “insert other
damages.” What could they be?

[42:46] Audience: *inaudible*

[43:05] Speaker: I just thought of one. Every person who’s ever suffered a real injury and had their life
changed and had to ask others for help, they feel ashamed. Just standing in front of a jury asking
them for money, ain’t that kind of a shameful thing to do. Isn’t that what the defense tries to
make our clients feel? They try to shame us into settling for these low-dollar amounts, right?
Shame on you for getting up and asking for pain and suffering and as a human being, you know, if I
can’t take care of my family and I can’t put food on the table, and I can’t pay my own bills, and I
need to ask others for help I’d feel ashamed. Am I the only one that would feel ashamed?

[44:13] Audience: How about embarrassment?

[44:15] Speaker: Embarrassment. That’s one I’ve seen up there.

[44:19] Audience: *inaudible*

[44:31] Speaker: Sure. You’ve decided to actually exercise your constitutional right to a jury trial in this
country and the defense is going to hire expert witnesses to comment and say that you’re trying to
guilt *inaudible* that you’re asking for more than what you’re really entitled to, that you really
don’t hurt, that you’ve really had an excellent recovery, and you know, you’re back to normal and
you’re just exaggerating, that’s embarrassing isn’t it? Even if it isn’t true, it’s actually embarrassing
if someone would say that about you. We’ll put embarrassment in there. Another one is fear. And
fear is a, if you look, because if you look it, that’s the jury instruction, but if you look at all the case
law. The case law which you can, when it says “insert whatever the other damages are.” The case
law goes on and on and on about the non-economic harms. And what I did was I printed out not
only the jury instruction but the annotated law that talks about all the different things. Feelings,
reputation, loss of reputation, ‘cause if you go from being a successful person who can take care of
themselves to “Oh boy, do you remember Joe? Yeah, what’s up with Joe? You know, he doesn’t
work. Doesn’t have a job. He got in a wreck years ago.” What’s Joe’s reputation? Is he still a go-
getter and a learner? Has his reputation suffered? Absolutely. The law, if you read through the
 annotated statutes we’ve got one, two, three… three pages worth and then that’s just the
beginning. Because the case just goes on and on and on and any non-economic harm that you can
find there so…

[47:11] Audience: I got one. Disfigurement.

[47:14] Speaker: Disfigurement. Disfigurement is another item. Okay. So if you have permanent scarring
on your body, is that disfigurement? And if that’s gonna last for fifty years into the future, and four
years into the past that’s fifty-four years of disfigurement, right? Disfigurement. Anything else?

[47:56] Audience: *inaudible* What about feeling inferior?

[48:02] Speaker: Feeling inadequate? Any others?

[48:08] Audience: Anger.

[48:10] Speaker: Anger. So I’m going to stop here. If a person suffered a traumatic brain injury and their
head hurts and they’ve had headaches ever since and they’re say, thirty years old, and by the time
they get to trial they’re thirty-four years old. What’s the time period for passed non-economic
harm to figure out where to dollar a value is to equate for the physical pain. Just having their head
hurts every week at some point. Four years right? So what’s reasonable compensation? Is
reasonable compensation, I guess, fifty percent of the value of what something’s worth?

[49:27] Audience: *inaudible*

[49:32] Speaker: So, to reasonably compensate you for something that I take away or that I negligently
destroy, or if I take away your freedom. Because really you say what’s the price of pain, what’s the
value of pain, that’s kind of a *inaudible* isn’t it? What if we were to, say, what’s the value of
freedom from physical pain? What if we just changed it instead we’re talking about the value of
living a life where you have the freedom from physical pain, from a head that’s just hurting
because human being suffered from brain injury. Is that easier to digest and understand? Yes? No?
Again, this is a laboratory. If you can think of something better let’s do it. I’m not the, you know,
not the one that knows it all. I’m still learning. So, if one-hundred percent of the value of freedom
from physical pain over a four year period past, and a fifty year period into the future of having a
head that hurts because of an injured brain is what I have to provide to you, then how much is it?
Let’s start with what it’s not. Is it a fair trade? Is it one-hundred percent compensation if I come up
to you and I say, “Well fifty-four years of a head that hurts because of an injured brain, it’s five-
hundred thousand dollars.” For fifty-four years of a head that hurts because of an injured brain.
Five-hundred thousand dollars isn’t fair for fifty-four years.

[51:45] Audience: *inaudible*

[51:49] Speaker: Okay. It’s got to be a reasonable fair trade in order for it to be one-hundred percent
compensation. True? And that’s what the law says that we have to do so will five million be more
fair? Or maybe a number between five-hundred thousand and five million for fifty-four years of a
head that hurts because of an injured brain. Is that something that might be within that range?

[52:24] Audience: I don’t think you can put a dollar on that…

[52:27] Speaker: But you, but we have to. I know.

[52:29] Audience: *inaudible*

[52:41] Speaker: I agree. We can’t say that. So do we say it’s zero, or do we say it’s cheap? Do we say it’s
a hundred thousand for fifty years?

[52:54] Audience: *inaudible*

[52:56] Speaker: You leave it up to the imagination of the jury. Actually, we should leave it up to is the
law of the jury instruction that says, “Ladies and gentlemen of the jury, what your job is to do is to
look at the law and the evidence in this case. Fifty-four years of a head that hurts because of an
injured brain and exercise your reasoned judgment as to what the value of that is for this human
being in your community. And the defense wants to say that it’s cheap. They want to escape out of
here, pay a little, because that’s obviously, and we’ve heard from them and their experts and their
witnesses and we’ve heard from the defense through their lawyers’ mouths that they think it’s
something that has little value. And I’m hoping that you’re going to tell them that it has a lot of
value. And we just only got to talk about physical pain. That’s just one item of non-economic harm
for fifty-four years of an injured brain. That’s just one item. I’m not talking about the five million
dollars in economic damages and economic harms because that money doesn’t go to the person
who I’m here to represent. That money goes to the doctors. That money goes in the pays, the
people to take the time away from their lives for one hour a day, a few days a week to give this
human being some sanctity, and dignity, and medical care. It doesn’t go to the person who’s hurt.
This goes to pay them, it’s the fair value of their time. And then those medical providers get to go
back to their lives with their family when the patient goes back to their life of being injured and
being stuck with what it is that they’ve been left with. So, five million dollars isn’t an unreasonable
amount of money when we’re talking about fifty-four years of a brain that’s been injured and
causes the head in the human to hurt. You agree?

[55:24] Audience: Yes.

[55:25] Speaker: Okay. We’re building, right? Is that greedy? Is that wrong? Is that a disgusting thing to
say? Or is that the truth? That if a person has their brain injured because of another human
being’s negligence or a corporation’s negligence or some, somebody not paying attention,
breaking the rules of the road and running through stop signs, driving a white range rover. Is it
unreasonable to say that the value of a human being whose life has been changed, just when we
talk about pain, that it’s worth at least five million dollars over fifty-four years of life. That’s
reasonable. And we only need nine out of twelve jurors to get up and say that that’s reasonable in
order to win. Don’t need all twelve, we just need nine. Then we go to the next thing. But what
about loss of enjoyment of life? Fifty-four years of loss of enjoyment of life. Now what’s that
worth? What’s the fair trade? ‘Cause compensation, if it’s going to be reasonable, needs to be
one-hundred percent of the fair trade. And the trade is the laws has been taken and the only thing
the law says you put in its place is money. That’s not me saying it, that’s the law that says it. If I
wasn’t here, I wasn’t talking to you, and all you were doing was listening to the evidence and
applying it to the law, and the life expectancy instruction, which gives us fifty-four years of a total
damages period, if I wasn’t here your job would be to figure out the amount of money that
replaces the loss of enjoyment of life over fifty-four years. So is, again, for fifty-four years, loss of
enjoyment of life to injuries from head to toe to a human being is, with fifty-four years, is five
point four million too much? Is that a greedy number or is that a one-hundred percent
 compensation number? That’s for the jury to decide. So, now we’ve taken one number we stack it
on top of the next. Let’s go to embarrassment, to live a life. Being different. Living life that isn’t the
same. To look in the mirror and see a human being who you really wish was different. Because
that human being is damaged, that human being is hurt. You look in the mirror and you love that
human being, and care about that human being, you’re proud of that human being, but you really,
you really wish if you could push a button. If you could just change time, if you could just go back,
if you could wave a magic wand, you wish that human being was different. And that human being,
what the injured person sees, is that way because of someone else’s negligence. So, the law says
fifty-four years of embarrassment, and no matter how proud a person is, and how much they’ve
done to rehabilitate and get their life pulled back together, it doesn’t mean they go through a day
or a week without still having embarrassment. That they’re not the human being that they used to
be, that they should have been, but for the fact that another human being negligently took it away
from them. So, we added a dollar amount for this over fifty-four years. Anxiety, we go through one
after another after another, all the way through, and we stack them up and that’s how you ask for
a fifty million dollar verdict for somebody whose life has been changed permanently. According to
the law, and you, through the trial and you only need a view days to bring human beings in to tell
the stories. You can list each of these things out in your opening statement, and you can tell the
stories during your opening statement, and then bring witnesses in to tell different stories, match
up with the same stories, true stories. And then at the end of the trial, the juries are going to see
the law, that you weren’t just making it up, and they’re going to see that the law says that they
must assign a dollar amount for each of these things. And the law is going to give them the
amount of time to evaluate each item of laws. So, when you add it all up, if you just follow the law
and listen to the human beings who you represent and understand them. And have we talked
about medical bills or life care plan or any of that crap? No. You don’t need to. In fact, when I do a
trial I put all this up and I go through it and I spend seventy-five, eighty percent by closing
argument talking about the non-economic harms and the losses, everything I’ve talked about and
then I put up a number and I say, “And these are the medicals. These are the paycheck losses that
out of pocket go to pay every people.” That’s the smallest, the smallest part of this case. Because
that doesn’t compensate, not one penny of all the non-economic harms. The loss of enjoyment of
life, the human losses, which is really the things that we all wake up every day to live for, right?
You don’t wake up every day and live our lives because we care about medical bills, or you know,
really a paycheck. We work so that we can have all of these things. To have a life that’s enjoyable,
to live a life where we’re proud, to live a life where we feel good about ourselves, to be free from
pain. We exercise and work hard so that we can enjoy life and just enjoy breathing and being
human beings. So, the non… we may have economic assets, right? Whatever that equity is in our
home or our vehicle. But our non-economic assets are the things that are most valuable.

[1:02:27] Audience: *inaudible*

[1:02:35] Speaker: The anchor is where we’re, the concept of having an anchor is bringing the jury to
focus on a certain, you know, concept or part of the case or dollar amount and I’m really careful
when I talk about anchors, because of the motions and stuff that get filed. So, I just prefer to say
that’s why I want our focus to be, but you’re right, that the anchor is let’s focus on non-economic
value and not on economic assets and the non-economic losses and not so much on the medical
bills. ‘Cause you can get an expert witness in any case to come in and say, “Well that medical bill is
 too high.” or “He or she doesn’t really need three days of physical therapy per week. You know, it
should only be one day a week or most of the stuff can be done at home and it should only be half
the price of physical therapist charging.” So if we start fighting our cases on those hills, we’re going
to get wounded and the case is going to slowly die. But if we make our case about the human
losses, the expert witness can’t come in and talk about these things. You know why? Because the
law says experts only get to testify about things that they’re experts on. And experts haven’t taken
the time to figure all these things out. When you ask them the questions, “Well are you saying that
the girl I represent isn’t telling the truth when she says she has physical pain?” What will the
expert say?

“Oh, I’m not saying that.”

You’re not saying that, you know, she hasn’t suffered losses during her life, are you? You’re not an
expert on that?

“Oh no”

They’re not an expert on any of these things. And the moment they start to talk about those
things, objection, *inaudible* sees the scope of what the experts are allowed to testify about.

[1:04:48] Audience: Question. When you ask those sorts of questions, do you open the door for them to
walk behind their designated scope and start talking about things like the credibility of the
*inaudible* of pain and *inaudible*

[1:04:59] Speaker: Sure, sure. But most experts are wise. And they’re not going to get into, they will
never ever say, “I think your client’s a liar.” And that’s where if you read a book from Rick
Freedman. It’s called “Polarizing the Case”, it’s a book you should read. You guys should read
“Polarizing the Case”, you should read “Damages”, you should read “Rules of the Road”, there’s a
book out there called trial by human that’s half-way decent.

[1:05:21] Audience: *laughs*

[1:05:22] Speaker: No there’s not all that saying, but it’s a decent book. So, and there’s a new book
coming out, called “Running with the Bulls”, that I wrote too, so… Alright, I’ve gone on for an hour.
What should we do? *inaudible*

[1:05:48] Audience: I think we’ve done a really good job tonight.

[1:05:50] Audience: *laughs*

*** END ***