Suing Big Tech and Fighting ICE: Trial Law as Social Change, with Ben & Rahul

Welcome to Elevate,

the podcast where trial lawyers Ben

Gideon and Rahul Raviputi talk about the

real issues that come with

the fight for justice.

So let's find inspiration in the

wins. Let's learn from the losses.

But most of all,

let's keep learning and getting better

and keep getting back in the ring.

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Hey, it's Ben.

Raul and I started this podcast because

we love hanging out with fellow trial

lawyers and sharing ideas

that can make us all better.

And both of our firms also regularly

collaborate with other lawyers across the

countries in cases where we can add value.

If you're interested in collaboration,

or even if you just have a case or an

idea that you want to bounce off us or

brainstorm,

Raul and I are going to be hosting

confidential case workshops the first

Wednesday of each month.

So here's how it works.

If you have a case or an idea that you

want to talk about or brainstorm with us,

just send me an email to ben@elavate.net,

E-L-A-W-V-A-T-E.net,

or go online to Elevate.net and

submit a case workshop request.

We will schedule you for a confidential

30 minute Zoom meeting where we can talk

about your case to see if we can help.

If you feel like there would be good

value in collaborating on the case

further, we can talk about that. If not,

that's okay too.

We enjoy helping other trial

lawyers because we know

someday you'd be willing to

do the same for us if we

needed your help. So again,

if you're interested in

workshopping your case with us,

just send an email to ben@elevate.net

or fill out a caseworkshop request at

elevate.net, and Rahul and I will look

forward to chatting with you soon.

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Welcome to the Elevate Podcast.

I'm Rahul Raviputi and my colleague

who's a fan of the worst team on the

planet, the Patriots, is not

on today, but we'll miss Ben.

But that gives me a lot more time to spend

with Todd Smith and Brian Lesine from

Chicago,

two preeminent lawyers who have earned

on behalf of their clients over three and

a half billion over

their firm's existence,

over a hundred verdicts and

settlements, over a million dollars.

It's unbelievable and unprecedented

the type of career you both have had.

So thank you for joining us.

Absolutely. Good to be with you.

Yeah. And Todd, I'm sorry I

didn't get to see you in London,

but it sounds like it

was a fantastic time.

It was great. You would've

enjoyed it, I'm sure. Yeah.

National Gallery was our final

night, so it was quite special.

Oh, that's fantastic. So

the way we like to do this,

we like to learn a little

bit about each of you,

your background and how you actually

decided to become a trial lawyer and then

really focus on longevity,

both of you with your careers and

continuing to be the best at what

you do for as long as you've done it.

That's what everybody wants to know.

How do you not burn out and function

at the highest level possible?

Just starting at the very beginning,

tell us a little bit about your background

and how you became a trial lawyer.

Raul, for me, it started in

law school actually because,

and I'll say lots of folks say I

want to be a lawyer from age seven or

something. That wasn't me.

But once I got to law school and

found trial practice at Loyola in

Chicago, which was then at that time,

it was one of the early

ones doing trial advocacy.

And I did that and I was hooked.

Tried mock juries during that final year.

And I actually tried a murder

case my third year under a special

rule that our Supreme Court

has with supervision of course,

but in my third year tried a murder

case. And I started out then criminal,

which is all I ever wanted to do. I

did public defending for several years.

Wait, so were you the prosecutor or the

public defender on that murder case?

Oh, I defended. I could

never prosecute. I'm sorry,

maybe some people who listen to this,

but I have no problem with

people who prosecute cases.

My wife was an assistant attorney

general for many years and she prosecuted

actually on appeal murder cases as well.

So had to try and keep people

on death row kind of thing.

And I was ashamed of her, but she

kept losing. So that was a good thing.

But anyway,

I defended that case and a lot of jury

trials and bench trials one after the

other during public defender years.

That was just the way it was.

You'd step up and you often couldn't

put your client on because of a history

perhaps in criminal matters.

So all you could do is cross and close

is what you would have for trial work.

But I learned a lot doing.

It. How did that work on a success

rate of getting your clients off or

minimizing?

I felt like I did pretty well

actually. I was surprised.

I was sometimes surprised,

but you develop an ability to

understand what avenues to take and

we did very well with that.

But there was a lot of very difficult

cases and you do a lot of pleas, frankly,

that too. But I tried a lot of cases. I

went on to join Phil Corboy in Chicago,

legendary trial lawyer there,

a member of the Inner Circle of

Advocates and many other organizations,

led the trial bar locally and led

the Chicago bar. And so anyway,

I was with him for 13 years,

joined Joe Power and tried a lot

of cases with Joe and that firm.

And then about six, seven years ago,

Brian and I started Smith Lucene

and we've been doing quite well.

And so we're pretty happy about that.

Tried a bunch of cases along the way.

Just a bunch. I'd say a little bit more

than a bunch. That's fantastic. Okay.

I have a couple of quick questions.

That first murder trial when you

were a third year law student,

what was the outcome on that?

Well, it was guilty, but

it was an insanity defense.

A young man had murdered his girlfriend

and then planted a bunch of candles

around her bed, put her in sort of

this heavenly sort of appearance.

Then he fled and was caught.

So we put on an insanity defense and

the jury didn't buy it. But tough,

tough to say, "Yeah, I did it."

But those are tough defenses.

And he was a young man,

he got a lot of years from the judge that

we tried that case in front of at 26th

and California, a fairly notorious

place for criminal cases,

big massive courtrooms back

in the day, ornate places.

And I'm stepping up and arguing the

motion to suppress his confession,

which I though I did well

with, but lost that as well.

But it was a heck of an experience really

was to be involved in a jury trial and

not yet done with law school.

And then how did that feel?

Because this is something that I think

a lot of our listeners grapple with or

are curious about early on. I mean,

you haven't even started your career

yet and suffering through a loss.

How does that work and how's

your mind state with that?

Is it like hitting and move on? I

did my best and move forward or -.

I carry them all with me, frankly.

They stay with me forever.

Maybe that's not healthy,

but you come to believe in what you're

doing and it's tough to take no for an

answer, but that'll happen.

Fortunately, not all that often,

but it happens once in a while and they

stay with you. In a case like that,

you know you've got a tough road, but

you have to believe in what you're doing.

Sometimes you have a case and

it's challenging to even do that,

but you got to put that aside

because if you don't believe in it,

you shouldn't be trying the case.

And then how did you actually meet

Phil Corboy? How'd that all happen?

Well, you're digging deep, but

that's okay. That's all right.

I continued to wanted to stay

in the public defender's office.

There was a guy who ran what's called

the murder task force and I wanted to go.

He wanted me to join him.

My supervisor didn't want me to go

because he wanted me to teach the younger

guys. I was 29. What's the younger

guy, right? I'm still pretty young.

He wouldn't let me go over there. So I

started looking around for criminal work,

but there weren't usually one

lawyer shops back in the day.

And so then I started calling around.

I called Corboy on the phone

when I heard he was looking.

He was on trial and they said he'd

call me back. A couple weeks later,

he calls back and he says, "Hi,

it's Phil Corboy." And I said,

"Oh." And then I didn't know what to say.

He says,

"I'm calling you back." "Oh, okay.

Yeah, I heard you were looking.

Can you come over right now? "And

I said," How about 45 minutes?

"And he was kitty corner

from the Daily Center.

I ran over there after getting my beard

trimmed during that 45 minutes because I

didn't want to see him. I

had a pretty full beard.

He sat me down and we talked a little

bit and I handed him my one page resume

and he throws it back at me.

H says," Fill in the bottom.

"He said," References

furnished upon request.

"I wrote down three judges and he picks

up the phone and calls the first judge

on the list. "Yeah, Warren,

I've got so-and-so Todd Smith here and

he says you'd recommend him for this

job." Oh my God. I didn't even

ask the judge if it was okay.

Just the judge I tried cases in

front of, right? He goes, "Uh-huh,

uh-huh." And then he hangs up

the phone and he just moves on.

I don't know to this day what Wilson

told him. I mean, I kind of know,

but I reminded Wolfson of this

years later. He remembered the call,

but didn't remember what. Todd,

I said positive things about you.

That's what happened to Coreboy.

I was with him 13 years after.

It was a great experience,

sometimes difficult with

senior guys who are passionate.

They show their passion

sometimes in your face,

but it was a great experience.

That's fantastic. Brian,

tell us about yourself. I.

Was that guy that always

wanted to be a lawyer.

I think I might've had a police officer

fireman as a kid, but when I was young,

I wanted to be a lawyer. I was the

son of a judge, but he was out.

Cook County is the largest unified

court system. Southern California,

you guys have all those

different counties.

So my dad was a criminal judge

out in a small courthouse in the

southwest side of Cook County,

so he wasn't in the mix.

I just saw what he did.

It was no exposure to personal

injury or civil litigation because

he was a traffic judge and

then he was a criminal judge.

And then he went back to traffic and I

think I was in college by that point and

I was asking him, "Why'd

you go back to traffic?

You got all these felony

trials." He's like,

"You get paid the same." He had been

doing it for so many years. He was just

done with the eight, nine

o'clock because in Cook County,

it's common on felony

trials, you keep the juries.

He's got transcripts of juries at

one in the morning asking for coffee.

That all said, went to law school.

Even though I always knew I

wanted to become a lawyer,

really wasn't sure what kind

of practice I wanted to have.

I ended up in politics for a

really short period of time,

assisting the Democratic

Party of Illinois,

which kind of led me to

Springfield at that time.

Our Speaker of the House at that time

was the longest serving Speaker of the

House in the United States as far

as state houses, worked for him.

And then the job ended at the end

of session, which was summertime.

I found out that Powell Rogers and Smith

was looking for somebody for the summer

and I was really supposed to go there

just for the summer to help out and then

go back and work for the Speaker

of the House. And by the end of

summer, the opportunity arose to stay.

I stayed and that was for 17 years.

It was a great experience,

got to try cases which each of the

named partners got to really learn from

fantastic lawyers who

knew how to work a case,

knew how to analyze all types

of different cases in their own

distinct ways,

which was a great experience

and also helped teach me that

you got to learn how you do it.

You got to take a little bit from

anybody you can and learn how you do it

because you can't watch a great

trial lawyer and just mimic.

So it was a great experience.

And then probably a couple

months before COVID,

Todd and I made a decision to go out

on our own and then COVID happened,

which was a totally different podcast

on opening up a practice during COVID.

That all said,

we've been at it for six plus years

and we've been growing for six

plus years,

which is a whole different set of

experiences because you kind of

over 17 years hopefully learn,

I think I did learn how to practice

law and work a case up and try a case,

but then you segue into

how to operate a practice,

which the two things

don't always go together.

No, they don't. That's amazing.

And so was it a setback opening

up the firm shortly before

COVID or did it turn out 2020

hindsight being a good thing?

That's an interesting question. There

was a lull in the action, of course,

because the courthouse

was shut down a good bit.

So that was kind of a relief in

certain ways because we didn't have the

pressure of, gosh, are we doing enough?

Because we couldn't do anything,

I guess. But I'm not

remembering that it was.

Because all of a sudden

when it opened up again,

the cases were going to pile up and we

just had to get busy and work and answer

ready for trial because if you're ready

for trial and that way the case is going

to settle or it's going to get

tried, one of the two, right?

I was going to say the same thing.

It did allow Todd and I and went

out with another young lawyer

to take a breath because when

you're opening up a practice,

you have everything there and

then you have existing cases and

that can spread you thin. So it was

nice to take a little bit of a breath,

but then at some point

you got to get going.

And I think for all of us

across the country as trial

lawyers and especially for

our clients, at some point

you got to get moving.

And the court system kind

of over time implemented

ways to get the cases moving again and

then we were out to trial and we've been

doing it ever since for the past

probably four and a half years.

Amazing. So both of you,

just hearing your stories,

it reminds me a little bit of

what I was going through as well.

You had the blessing of getting to work

with some really amazing trial lawyers

alongside you and with

Corboy, with Powers,

Rogers, everybody else,

and then being amazing

talents among yourself.

I got to work with Walter Lack,

Brown Green, Bruce Boylet,

and then of course Brian

for all these years.

When people ask,

I always say that is the best learning

experience every single day to be

surrounded by the best of the best.

Whether we're actually talking about

cases or just seeing them in action,

there's so much to learn and little

nuances that each of them do that are.

Some work, like you said, Brian, and some

of them just don't fit my personality.

And there's a lot of things Brian does

that I can't do. But do you feel a

similar way in that there's a lot that

you've gained off of being surrounded by

and working with a lot of

these other fantastic lawyers?

I sure have, yeah. I mean, Corboy,

it wasn't like you got instruction.

It was more, if you got instruction,

it was pretty firm stuff.

I think I pointed that out earlier,

he could be in your face. You don't.

Want the instruction, that's

when something went wrong?

I'm hiding. Not really,

but sometimes I'd wonder,

why did he say that a couple of

days later and it finally sinks in?

It was an amazing experience.

I wouldn't be whatever kind of lawyer

I am today and the success I've had

without a guy like Corboy having

given me that opportunity,

having the kind of passion he had. So

I'll finish by saying on this subject,

Joe and I tried some cases together

power. I learned a ton from Joe, frankly,

and Larry Rogers and

I tried more together.

It was great because he does

it one way, I do it the other,

but it works out and it worked out

very well. We had a good run, 27 years.

Yeah. I would just add, I tell

people when young lawyers,

I guess I'm at the point of my career,

sometimes young lawyers ask me for

advice on what to do, what next steps.

I always tell them you try to

work for the best people you can.

I'm sure there is a name out there,

but I'm hard pressed to

name a prominent lawyer that

didn't work for or work with

other prominent lawyers.

I was slightly different era than Todd,

but still cut my teeth in an

era when the instruction I

got usually started with the lawyer

giving that instruction from 10 offices

away and then approaching as I heard

their displeasure with choices made,

it served me really, really

well and it is just to be in it.

I know back in the day

people would say, "Well,

you can go watch trials and learn it

that way." And now there's Court TV and

you can see some great lawyers trying

cases and I've watched some of that and I

think it is helpful.

It is great experience,

but to see how somebody under

the hood working up a case,

it is not to use a sports analogy,

but it's truly the reason why when

you're in college or the NFL and you see

these great coaches, they have these

trees because they learn from the best,

they incorporate what works,

they try to not use things

that they see didn't work.

And it's just to be in it

with someone who's done it and

be able to just absorb

those practices and their

collective experience, it just serves

you so well. I think it's really, really.

When young lawyers ask what to do,

I give them that advice every time.

Not everyone has the same opportunities.

I got lucky in my career

in certain respects,

but it's just so important to

work with good experienced people

and see how it's done.

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and learn from the best.

Brian,

earlier you were saying that you get

to see some of these other lawyers have

done and see what fits with your

personality and style and then

maybe incorporate some of those things

and then not incorporate others.

What are some of the things that you've

learned from other trial lawyers that

kind of fit in?

Do you have any cool little tricks that

you learn from others that really fit

your personality? And I say tricks,

but obviously I don't mean tricks.

No, no, no. I know what you mean by

tricks. My personality is more methodical.

It's hard.

This is not a criticism of Todd because

I think he'll think it's criticism.

Todd's ability to show emotion,

to express a point is very authentic and

in what I've seen very impactful.

It's impactful to me and I sat second

chair with him just sitting there and I

know it's impactful to the

jury because of the results.

I'm not saying that they're

moved by their own emotion,

but I think they're moved by the

point he was making, how he shows it.

I don't have that in my toolbox.

I have to be more methodical about it.

It's not that I don't

care about the client,

but my ability to show that

type of emotion to express a

point, I don't have that in my toolbox.

I've tried to utilize it in different

ways and it's just not in my

personality type.

Doesn't mean I don't care.

It just means that sometimes

when I've tried it, I go,

"Your emotion should be at a 75 out of

100." I just automatically go to 100.

It doesn't work so much for me and

it's not a trick because with Todd,

I've seen it. I've seen

it with other lawyers.

It's completely authentic and it's

completely within their personality,

but at the same time, it just

doesn't fit the way I operate.

That's one thing that I've seen

lawyers do really, really well,

but it has to be 100% authentic.

I can see Todd when his glasses come off

for a second and he's going to lean in

to make a point and he's

showing that emotion.

Lawyers in Cook County that

have tried cases against Todd,

he'll sometimes get motions

in limine that he can't cry.

Okay. Now stop it. Well, I tried

a lot of death cases, right?

I tried a lot of death cases

of children. I'm telling you,

that's one that just gets me.

Do I get choked to touch? Yeah.

So all of a sudden I see emotion

in limine. Smith can't cry. Well,

I wasn't crying. It was just a

matter of. It takes a moment.

It happened in this Reinke case,

this malpractice case that we were going

to chat with you about where I did get

choked a little bit.

John Reinke's in such terrible

shape after what happened to him.

This pretty impactful stuff that was

shown to the jury and I think it hit them

hard. It certainly hit me

hard, but Brian's right.

I've caught a couple of emotions. Smith

can't cry, Judge. I'll say, Judge,

I'm not going to cry.

But sometimes it happens.

I've tried way more wrongful death cases

of children than I'd like to even think

about. That's one where that

happened. I choked up. I had to stop.

I had to stop and take a breath and so on.

And you really have to pick up what fits

and working with and observing great

lawyers.

Everyone's got a slightly different

personality and they have a slightly

different approach and you really see

what works for them and you try to

incorporate what you can,

but you can't use everything

because it just doesn't fit you.

And authenticity is, I

tell people all the time,

in a jury trial, somebody may be able to.

When defendants are just throwing

garbage in, that's a lot of what we see.

They'll try every argument they can.

They got 12 explanations for why

they should get a not guilty.

When it comes down to it,

most of them have holes and sometimes

they're able to try to sell one or two

jurors,

but they can't sell all 12 because 12

people are going to sniff it out and

know that you're a phony. You just

really have to be true to yourself and

incorporate that into the

narrative of the case.

That's a great point. So then Brian,

without sort of that emotional connection

that you've observed Todd accomplish

in a lot of his trials, what's

your way of connecting to a jury?

I try in cases to.

I use the word methodical,

but be as open as possible,

front as many issues as I can.

And I know we all do that

and approach it as that I am

a honest broker advocating for my

client and let me tell you both

sides of the story and this

is what they're going to say.

And I know many of us incorporate

that into their practice,

but even before a lot of

those books were written,

I saw people who I practiced under doing

those types of things and I saw how

impactful it is to where

the jury picks sides.

We all do that. You

turn on a baseball game,

inherently you're going

to root for one team.

And you see how some lawyers

have this presence and it's

not from showmanship, it's

not from salesmanship.

It's just this authenticity presence

that the jury trusts what they're saying

because they're telling them the straight

story. This is what happened and it's

this way to advocate by

telling them how it is.

I try to incorporate that as much

as I can. I don't think I'm 100%.

I'm striving and I just

find it so impactful.

The lawyers I've worked with, when I

see it, I see how it can sway a jury.

Todd, what's your approach and what are

some of the things that you learned from

colleagues of yours?

I tell you,

I was so fortunate to try cases with some

good lawyers in the public defender's

office. So once I started doing civil

cases, I was going out right away.

Mr. Corboy handed me a

couple hundred files.

Oh my goodness.

Well, it built up to that.

Everything rolled downstream to me.

I was the new guy in the firm and all

of a sudden everyone's handing off stuff

to me. I was out to trial

constantly in civil,

which is not that common and

not very common anymore at all.

There were civil trial lawyers in

Chicago that tried a couple hundred jury

trials in their careers. That was

a lot on the civil side for sure.

I've always had what I think is my

better areas of trying cases and

one of them is cross-examination.

I feel like I thrive there.

I like staying in control,

being in control of witnesses.

So adverse exam,

lots of people don't put defendant

docs on the stand on adverse.

I think we've won cases doing that,

putting somebody up right away.

So I still tend to do that if it's

the right move. Sometimes it's not,

but often it is.

If you can destroy someone or come

close to it right off the bat,

the jury's wondering what

the heck's going on here?

Why are they trying this case

maybe? Even if you get that far,

you might get concessions of negligence,

right? When maybe you don't often.

I have worked at trying to get those

kinds of admissions that that would be

careless, wouldn't it, sir?

I've learned that in civil cases

because we didn't call witnesses,

but it's like cross-examining anyway.

I've learned a lot about undermining

the other side's case along the way,

making sure you do - When do you.

Start that?

Oh, you start it right away.

You have to start it in opening.

You start it even in voir dire

to some extent. Absolutely.

If you have the right voir dire questions

and talking about how people lean on

stuff, which way do you

go and you make it sound.

And it is an objective

issue, you find it, oh no,

I think the right way to do it is this

or that. Or if you find people that way,

and that's another issue, of course,

voir dire. That's an underrated talent.

I've seen some really

good lawyers on voir dire.

Brian and I had a trial with a fellow

about a year ago who really was good at

getting challenges for

cause. On the defense side,

he was very talented with that.

I'm at the age I am and the

stage of my career I am,

but I'm still learning. Ryan and I though

a lot of that guy's ability to handle

voir dire. So that was a couple of the

things that I've learned along the way.

And then when you talk about

control during cross-examination,

how do you maintain control of a witness?

It's almost always with the leading

question unless I can ask the direct

question, which I don't mind asking

if you know you can get away with it.

Another way that I found useful

is when you get the answer you

didn't want with the first question,

I always have a backup with the well,

and then I go to a second question,

which they are far more connected to the

first one and they're far more likely

to have to acknowledge it. A lot of

the questions you find that you ask,

they're not going to be doing very well

no matter how they answer it, yes or no.

Those are the kinds of questions I like

to ask as well, that kind of control,

but it's leading, of course.

For me, it's always leading.

Some people say they try to get away

from leading, do it more dynamic cross,

see what you can find, right? I don't

like losing control. Maybe that's a fault.

I don't know.

No, I'm with you on that.

And open-ended questions,

unless they're already

trapped and in a bad spot,

it seems way too risky to just kind

of throw those out there and get the

rehearsed response. Fantastic. Okay.

So you were talking a little bit about

that case and let's talk about it now.

We tried this case earlier

this year in April.

We got a verdict and the case was an

emergency room medical negligence case,

and it was a man from Huntsville, Texas,

a law Haul truck driver

who actually had an MBA.

John Renke was his name and is his name.

John was in Champaign-Urbana

waiting to get another load,

staying at a local hotel down

there. Woke up one morning,

July the 11th of 2022 and had a

terrible headache about 6:00 AM

and it progressed to get

worse during the day.

And he went to the ER at the

OSF Heart of Mary Medical

Center.

John reported then at three o'clock

to the hospital and it was a nine out

of 10 pain, but that was all he had.

These emergency room cases kind of

scare me because they are cases in which

the doctor is seeing someone for

the first time almost always,

most of the time anyway. So they're

strangers. They have no history on them,

that kind of thing.

So it scares me that way or concerns

me maybe is a better word for it.

And then on top of that, there's often

when people think of an emergency room,

it's a chaos that's going on.

So this is something that they're going

to be given a bit of some flexibility by

the jury in terms of what they

did or didn't do as my concern.

Our expert in the case, I expressed

that concern to our expert,

really good guy out of Cedars-Sinai in

LA. He said, "Todd, that's the point.

You've got this one chance.

You've got one chance to get it

right." And so wow, that was wow,

that's terrific. That's the way I'm

going to think about it. Anyway,

John was diagnosed with a tension

headache. He got a CT done.

He had no other abnormalities of any

sort other than the headache. He was

diagnosed with a primary

headache. Those are migraines,

the ones that won't kill you.

But he was discharged and 53 hours later

he's found unconscious in his hotel

room.

His parents actually were on the way up

to help him get his truck back because

he wasn't feeling well. So when they

got there, they knock on the door,

he doesn't answer and they

open the door, the staff does,

and he's on the floor looking like

he's trying to be crawling to the door.

It wasn't a stroke.

That's what I've kind of said about this

case because a lot of people think, oh,

this has to be a stroke.

It wasn't a stroke.

John had diabetes that was undiagnosed

and found when he got to the next

hospital after they resuscitated

him, but it took 20,

25 minutes to do that.

They got him to another hospital

locally and they quickly diagnosed by a

blood test his diabetes.

His blood sugar was 1,367.

Normal is like a hundred. And his A1C,

if people don't know what that is,

an A1C can tell you what

the average was during the

last 90 days of what the blood sugar was.

His was greater than

14. It only goes to 14.

So it was even beyond

what the scale could read.

And what we found from that was

important for proximate cause. The A1C,

we wanted to know what was his blood

sugar that they didn't test for back then.

It was average of 355. So

he was in a diabetic crisis,

undiagnosed diabetes at that time.

He should have had a blood test.

We tried to make the case simple.

All you need is a blood test.

The case was a classic

differential diagnosis Raul.

That's a lovely case for me because

it's something they're taught in medical

school right off the bat. What's a

differential? It's all the possibilities.

How do you set it up?

The most lethal at the top and work your

way down next lethal and so on is the

way you should do it because

you want to catch it.

Even if it's not the most probable,

you want to catch the dangerous one.

That was our case.

And the only way you can do that

is by doing the proper tests.

All that was done for him was a good one,

a CT scan. You do a scan of his head.

There's nothing up there,

but they didn't check the rest

of the body is the idea, right?

You got to know what's going on otherwise.

You have to look for a metabolic cause.

He needed two tests and only got one.

He needed a basic metabolic

panel and he didn't get it.

And there were a number of different

paths we developed to show how that could

have been done. We said a stroke

alert should have been called. I mean,

they're looking for a brain hemorrhage.

That's a stroke alert right there.

And that would have got him a blood test.

He was given contrast and he had gout

in his history and he was a heavy

fellow, so his body mass index all

was indications for risk of diabetes.

They should have done a blood test.

There were four different ways he

should have gotten a blood test.

It was that simple. The basic metabolic

blood test would have gotten him.

And that's what really was the case.

A differential, get him a blood test,

you would have found his

diabetes undiagnosed, but

nonetheless, that's the case.

We ended up getting a $51 million verdict.

The jury was out about four hours,

something like that. We took a high low,

about the three hour

point of 15 on the low,

35 on the high.

The client was really insistent that

they didn't want to lose.

And some 75 year old mother and father

taking care of John in his home,

he suffered a severe anoxic brain

injury. He can't speak, can't walk,

can't do anything. But we did a video

and it showed he's there. He's in there.

They tried to say he was

vegetative. We said he was not.

He was what they call minimally

conscious plus. So yeah.

Wow. Ben talks about med mal

cases all the time. And honestly,

it's really hard for me to

follow a lot of the times,

all the different 50 syllable words that

are being used back to back to back.

There could not have been a

more simplified presentation

than what you just did

now. I totally get it.

And so now I'm just curious when

you - I want to make sure I give.

Jason some credit here.

Jason Williams in our office

was instrumental in putting

a lot of that together.

He helped a lot. I tried the case

with him. He did a wonderful job.

I closed and did some other witnesses,

but he did a lot of the work too.

So it was a good trial. I shouldn't

have interrupted you there. Go.

Ahead. No, no.

So flashing back to sometimes your

approach on cases is to call the doctor

first and sometimes you don't.

Was this one where you called the doctor

first and how did the cross-examination

go?

We called him, but we called

him on a narrow issue.

A really nice guy. He was one of

our problems. He really nice fellow,

African American. He

commuted from Chicago.

That's how we kept the case

in Cook County in Chicago.

Two hours down to OSF in

the Champaign-Urbana area

where the University of

Illinois is. I think I may have said

that already, but really nice fellow.

We called him solely on what we call,

maybe everyone knows, a parent agency.

He worked for a separate ER company

that did the ER work at OSF,

but he acknowledged things like,

"Yeah, I wore my badge that says OSF.

I never said that I wasn't an

employee." He actually was in a video

taking the first shot for

COVID that we showed to show,

and it had both sides to it. He's a

good guy doing that. On the other hand,

it was someone he's doing for OSF,

right? So he looks more like their agent

and we were able to easily establish a

parent agency on that,

which was important to being able

to resolve the case at a high level.

Was there any expert on the other side

that disagreed that had a blood test

been done, it would not have

been helpful in treating him?

Yeah. It's interesting. They did

defend it to some extent that way.

There were a couple though that said

that had to be in the differential.

In other words, metabolic cause.

We were able to get out of

this one ER expert. Yeah,

should have been in the differential.

And the only way you could determine if

there was a metabolic cause was to do a

blood test. So he conceded

that. So in closing,

I was able to say, because they

were critical of our expert,

said that he hadn't done his blind look

at the case and made all this noise

about how he shouldn't be believed.

I actually said to him, look folks,

we don't even need him. We don't

need Ken Corey. We love Ken Corey.

Great witness, but we don't

need him. Their guy admitted it.

So I could just do like that. And frankly,

I think that helped a heck of a lot

that you're able to turn and say,

so what? They put up a guy and the

guy admitted that had to be there.

That means you have to have that blood

test. He didn't get it. Had he gotten it,

they would have seen diabetes,

they would have treated it and

this wouldn't have happened.

It sounds like one of their defenses

might have been that he's so gravely

injured that he's no longer

even aware of his condition.

Yeah, they did do that. Yeah.

I mean, how does that play out? It's

such a risky defense to me, but -.

I think they did have some

success with that actually.

Not that 51 million was low. We were

happy with the jury's verdict, right?

On the number for future care,

they cut our number to the

jury about in half, the jury,

what we had for our care plan.

But they then gave, in Illinois,

we have a piece of an element that

is called shortened life expectancy.

So we can pick up something there if

they decide they're going to argue that

it's a shortened life expectancy,

he won't be around that long.

That's what happened there. They had

a guy from Virginia Commonwealth,

I'm forgetting his name, a physiatrist

there. He worked with some nurse,

sort of a tag team effort

locally put together a care plan.

But he said, yeah, he's in a

vegetative state. And John wasn't.

And I think they should have

gotten hurt for that, maybe even

more.

Than they did. John was clearly a

higher level than that. A sad level,

of course, very sad, but nonetheless

higher and minimally conscious.

And he would respond to his mother who

would try to make him do things and he'd

have to slowly move. He was there.

So that was a battle though.

You're asking about that.

Yeah, they put a guy up.

That's not the best defense in the world,

is it? It doesn't sound like it to me.

It's like, yeah, we really, we took all

of his life. Yeah. We hurt him so bad.

We hurt him so bad. Yeah. So you don't

mind when they're trying to do it,

but you like to try to defeat

it nonetheless.That's amazing.

Congratulations in doing a great service

for your client. Thank you very much.

Yeah, differential diagnosis. So

you'd be surprised for your listeners,

how often you can find it in a case and

use it because it's a very basic medical

process you go to try and keep things

from slipping through the cracks. Exactly

what happened here.

I would just add to this little story

is was not a trial lawyer in the case,

did nothing in the case, but

watched parts of it here and there.

Sometimes when you hear

about a case, you're like,

how did this case go to trial

when there was a big verdict,

the plaintiff lawyer explains what

the evidence was and you're thinking,

what was the defense saying? How did

it go to trial? I mean, realistically,

I saw when the defendant doctor

went back up on the stand,

when the defendants called him

in their case, very nice man,

came across very considerate,

presented very well.

When Todd and Jason were putting this

together, he did about 90% right.

And the fear is when you're in an ER

case that the jury gives the doc the

benefit of the doubt.

It's a one time event and somebody

presented with a headache. Do you know how

many headache cases doctors get in the ER?

And we're supposed to do a million

things for every single case.

We told the guy to follow up. If

you continue to have problems,

you can come back. You can go to

follow up with your own doctor.

And those were kind of the underpinnings

of what I saw in the defense case where

Todd and Jason, they did a great

job overcoming those issues.

And that's why Todd's talking about a

trial because they were arguing these

things like even what plaintiff's saying,

they were denying that a

metabolic needed to be done,

but it was acknowledged that he did all

these things. It's not like he said, oh,

here's a headache. Here's some

Tylenol, go home. He worked up issues.

He just didn't work up the right one.

And so they did a great job on that case.

Raul,

the last point I think I'd want to make

is that I think the idea that they had

on the defense, and maybe they should

have pushed it even harder than they did,

was they did an entire claim to have

done. Anyway, it was in the records,

review of systems. And the only thing

the man had was a headache, right?

And there was nothing else. That was

a concern that would sell. It didn't,

but I think I would have emphasized it

more if I had been them and really worked

that harder.

So I think we got a little bit of

a break the way they handled that.

You mean in the sense that, I

guess that could cut both ways.

So if they leaned in hard

on review of systems,

that would be their counter to your

differential diagnosis argument,

but then your counter

to that would be, well,

why'd you have to review the whole system

if you thought it was just a headache?

I mean, that goes right

back to your different,

that almost warrants getting a blood test.

They simply said that's standard

of care. You review systems.

It was part of my effort to make sure

I wasn't missing something is the way I

thought they'd present that.

And if they really should have

worked harder to show that,

maybe it wouldn't have worked for them

because bottom line is we had these four

ways. And I though stroke

alert was a very good one.

They were a primary stroke center, this

hospital. And so they have a protocol.

They didn't have anything

wrong with their protocol,

but they didn't do a blood test,

which was part of the standard

protocol you see in a lot of places.

So that's what that was.

We had a really good stroke director from

South Carolina who testified for us in

that case. She was wonderful.

Amazing. Congratulations.

And it's great you did the high low

because then your client actually gets the

benefit of the money and it improves

his quality of life. Exactly.

And it's great we got the high, right?

Oh yeah, absolutely. Absolutely. Well,

you really had to do something there

because there's a lot of risk and the mom

was the main one involved in that issue

with us. She didn't want to go there,

but we needed to get that high up to

where it was. Some people say, "Gee,

that's a pretty high low." I was glad

to have that low be as high as it was.

That was helpful,

but fortunately we didn't have to

incorporate it into the result. Oh, Brian,

tell us about your recent trial successes.

The more recent case really isn't a trial.

It's a slightly different perspective

because you've got these great trial

lawyers try cases. You go out on

cases, but some of these cases,

and this is an example,

it's a crossing case and it's what

you'd want to call an ultra hazardous

crossing.

But the issue in the case was there was

a person who had died who was waiting at

a bus stop because the car

was thrown into the bus stop.

A different lawyer worked the case up

with me. He represented that estate.

The car pulled forward into the path

of a train and there was alcohol in the

system of the driver that was

highly debated. It was like 0.08,

but never charged with anything because

the police blood tested the wrong person

because in the accident they

couldn't figure out who was driving.

But all that said, railroad cases,

you start off with all the

preemption that a railroad gets.

And then this was a case where our

commuter rail line was running on the

railroad tracks. So our commuter

train, which is a government agency,

they have overlapping something

called the Tort Immunity Act.

So they have the protections that

government entities get in the state of

Illinois. So besides the underlying,

I had to argue that it was the

commuter rail and the railroad,

the setup of this intersection.

I had the weaving through the Tort

Immunity Act and as well as all the

preemption issues because you can't talk

about a speed of the train because the

train was traveling under the federal

speed. So you can't talk about speed.

So it was always the case

was about acceleration,

that it shouldn't have been accelerating

into the crossing because you couldn't,

if you said the word speed, you

were going to be preempted out.

Your experts no good.

We ended up getting involved in the

case about a year after it was filed.

The clients I had had two previous

lawyers. So we had to unpack a complaint,

get past the motion to dismiss because

of all the preemption as well as tort

immunities and then work the case up.

The case ended up

resolving for 23 million.

Two of the young women had head

injuries, significant at the time,

but really by the time we

were getting close to trial,

they hadn't really treated in a couple

years and were living their lives.

And the other one had orthopedic leg

and hip fractures to their lower leg.

The case settled for 23,

but it was this evaluation of risk

because we had a dangerous crossing.

It was basically a crossing

that was three streets,

one of which was on an angle and

the train came through the middle.

The barriers of the guards that come

down was offset for the intersection.

So if you pulled up to the intersection

and this was at night and you didn't see

that it was a crossing,

it would come down behind you.

And that's what it actually did.

And when it came down behind

them, there was video of this,

they kind of backed up,

bumped into it and then started to creep

forward and one of them remembered what

happened. And so they explained

they were looking around.

We had claims of trees and vegetation

were too close and were in the right of

way of the railroad's land.

So it blocked the view of the oncoming

train and then they slowly crept forward

and the train hit them. But obviously

from the defendant's perspective,

they drove into a train.

What are they thinking?

So it was this analysis and we mediated

the case and worked to resolve it over

the course of three months,

but it was just really evaluating the

downside for these three young women and

getting a point where they got a really

substantial result. But at a jury trial,

I used some great experts,

but it would've been a hard sell to tell

my client that I'm going to keep the

alcohol out and they pull forward in

front of a train. Now on the plus side for

us, we had the vegetation.

We had this very odd intersection where

you're supposed to actually stop about

two car lengths from the intersection

in order to be behind the gate.

But at the same time, the argument

was why would you pull forward?

If you never pulled forward,

the train would've passed by.

It was a great result and it was the

analysis of the risk of that situation to

our three clients who a jury could

do a few different things with that.

The case ended up resolving

about a month before trial.

We had gotten through plaintiff's experts

and we were still going to do defense

experts,

but it was a great result for the clients

on a case that we had plenty to say,

but the underlying hump that

we would've had to overcome was

driver at alcohol,

you pull forward in front of a train

and trial lawyers across the country

look at railroad cases. They're the

built-in protections that railroads

get, the law is built for them.

And first time in my career,

I saw state law preemption where

the railroad was allowed to

argue that the state looked at

this intersection and said it was

okay 15 years beforehand,

so no jury can argue that it's not okay.

We even had that hump to get through

and we were trying to weave our way

around it. But you can't say

speed, you got to say acceleration.

My goodness. Can.

I add something, Raul? Yeah. I

was so impressed with, I mean,

Brian's my partner of course,

but I've handled some crossing cases

in my career and I think they're

tough as nails. I mean,

I've been preempted out more

than once in cases on those,

but he danced through all of that.

And think about Brian on cases

like this, even when they're tough,

I've noticed his insight and belief,

and this goes back to you got to believe

in the case you're trying and handling,

right? If you don't, you better

hand it off to somebody else.

But the belief and passion for the

issues in Brian's own unemotional way,

remember he was talking

about how he's not emotional.

I'm not emotional.

I don't know how to correctly apply

it to a situation. It's not -.

But what I'm saying is that belief in

the case comes through in an outcome

like this. That's the case.

He had another one where we had a man

who basically walked himself into a power

line that was too close to the

building. He was squeegeeing off.

But I think Brian's belief in that case,

despite that contributory fault that

could easily be argued against you,

that turned into a massive result

for us, a settlement again.

But nonetheless,

it was because we were able

to put punitive damages

onto the case and threaten

with the punitive damages

as well. So anyway,

that's what comes out of this outcome,

I think, for people, for me anyway,

for this person, is to say, look,

this is what can happen when you believe

in the case despite major challenges

like preemption and contributory fault.

That's amazing. And you're spot

on, Todd, in the description there.

I mean, that is an incredibly

hard case on so many levels.

Federal state preemption, finger

pointing on immune issues. I mean,

it's just unbelievable, unbelievable.

And congratulations to you and doing

an amazing service for your clients.

What I've learned here today is that

you guys don't take on easy cases.

That's amazing. That's the hardest

of the heart. Well, if you.

Came along, we'll take them.

I know we're pretty much out of time,

but can you let people know if

they want to reach out to you,

work with you on a case or

steal some of your brain power,

what's the best way to get

ahold of you both? Smith.

Lucine in Chicago, right?

70 West Madison Tsmith@smithlacine.com and

Brian's blacene@smithlaceene.com.

So that's the way.

Primarily, I would say, Raul,

thank you for asking that question.

You always want to hear from people,

but we can be of help in Chicago.

We want to be.

Fantastic. And thank you both for spending

time with me today. You're amazing.

And I love this podcast because I get

to spend time with you and I get to

learn amazing new things. So thank you

for teaching me and all our listeners.

Yeah.

Say hello to Ben.

Definitely will. Yeah.

Thanks for putting this together

and inviting us on. Yeah.

Thank you very much. We

enjoyed being with you.

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today? If so, tell a friend.

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