Win Your Case at Voir Dire, with Todd Schafer

Welcome to Elawvate the

podcast where trial lawyers,

Ben Gideon and Rahul Ravipudi 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.

Rahul 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,

Rahul 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@elawvate.net

EAW vate.net or go online to

elawvate.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@elawvate.net

or fill out a case workshop

request@elawvate.net.

And Rahul and I will look forward

to chatting with you soon.

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Welcome to the Elawvate

Podcast. I'm Rahul Ravipudi.

I'm Ben Gideon. Rahul,

I know you've been busy picking jury for

social media trial out in Los Angeles.

Can you just give us a flavor

for what's going on out there?

We got about 300 jurors that came

in and they come in panels of

about, actually it's more

than 300, six panels of 70,

and then we hardship 'em. So we one

in the morning, one in the afternoon,

one in the morning, one in the

afternoon, one in the morning,

one in the afternoon for three days.

And then jury selection actually

started on the fourth day.

So we've only had one

day of voir dire so far.

And then we're dark for the next few days.

And then we're coming back in

Thursday and this is a bellwether

set up trials. So we've got three

trials back to back to back.

And the first one, Mark

Lanier's lead counsel,

and then the next two I'm going to be,

so I've been there helping Mark

and his team and it's been awesome.

He's a lot of fun to work with.

Well,

I'm sure you can't share it much more

about it because it's an ongoing process,

but we're looking forward to watching

it play out and hearing more about it

later.

I'm looking forward to

everything becoming public.

So I was hoping opening statements

would be happening this week,

and there's just so much material

that has been subject to protective

orders that I can't talk about.

I can't even share with

my family or anybody.

And so this trial happening is one

of the most exciting things for me

and for the reason I became a trial

lawyer, so I'm really excited about this.

Yeah, it's certainly a landmark case

and a lot of enormous importance.

Speaking of that, we've got

our Super Bowl coming up.

The Buffalo Bills are not

in it. I'm sorry, Rahul.

Sorry, not sorry, Ben. Is that

what you're saying right now?

I don't think we've spoken since

the Bills Broncos game that I was so

fortunate enough to attend. I happened

to be in Denver. I was a good,

great game. Sorry, you lost.

When you saw there live in person,

cooks caught the ball, right?

Was that the interception?

Yeah, the alleged interception.

Yeah. I thought the call

on the field was correct.

Oh my gosh. Oh my gosh.

I will say that watching Josh Allen

play in person is really an unbelievable

experience because you just

don't appreciate the speed

of everything when you're

watching it on TV and watch. I mean,

I had great seats and just when

he's doing his sweep around

going for that first

down running the ball,

and I mean just the speed

of everything and how good,

fast and quick the decisions are, I mean,

it really is impressive to

watch that unique talent.

And then with a broken foot

too, I mean, goodness gracious.

He had a broken foot.

Yeah, he had surgery right after the game.

Because Bo Nicks seemed to have broken

his foot and that kind of helped us out a

little bit the following week that.

Really helped you guys out. So

are you going to the game, Ben,

or are you going to watch it at.

Home, the Super Bowl?

No, I won't be going.

It's in San Francisco or

around there somewhere.

It'll be awesome. Well,

you know what I was thinking

about watching the game

with and then having some

friends over and eating a

bunch of fresh Maine lobsters,

but I've got this friend who never

pays up on his beds. I'm paying.

Give me a date. They'll be there.

I'm very annoyed though because you don't

really deserve them with a season at

the way it ended. But Todd,

one thing you should keep in mind is

you should never bet against Rahul.

He's literally the luckiest

human being in America. Noted.

Todd. We bet on the Patriots Bills game.

I never bet on my team only twice with

Ben and it was for lobsters or I have

to send him some wings. It it's a

lopsided bet. It's an asymmetrical bet.

And then a quarter and

a half into the game,

the Patriots are just walloping

the bills. I was like, oh man,

just send me the address.

Where do I send the wings?

I don't even know how it happened,

but they just made a miraculous

comeback and came back to win that game.

Josh wanted me to have it.

Picked out my flavor of wings.

I sent you my order. You.

Did? Yeah. You probably would've

actually paid up on that too.

I was about to pre-order those.

Alright, the well lobsters

are coming though.

Awesome.

Awesome. Seriously, send me the date

you want and they'll be there. You.

Got it. You got it. Well Todd,

I'm sorry to keep you waiting.

We are so lucky to have you on and thank

you for joining us on this podcast.

I know you've seen and listened

to at least a couple of them.

So we go through our mindless banter

before it went longer this time because I

haven't seen Ben this year,

and so I was really excited to actually

get to see you and then bring in the new

year here in February. So this is awesome.

Thanks for having me.

Of course.

So one of the things that we like to do

for our listeners just to kind of start

the process out is just to learn a

little bit about you and how you got

to where you are right now becoming

a trial lawyer and what inspired

you to do that and your journey.

Really at its core, I'm kind

of a small town Indiana kid.

I mean Val Brazo isn't the

smallest town in the world,

but born and raised in Val Brazo, Indiana.

And I was lucky enough to have a

father and an uncle who were lawyers.

And so they started our law

firm and Schaeffer back in

1977 and they were just two

brothers kind of figuring it out.

They were general practice would take

anything they could get and slowly made

their way into doing personal injury

and helping those who have been hurt or

killed.

So they slowly sort of built that

reputation of being aggressive trial

lawyers. My dad always liked

trying cases growing up as well.

And so I was lucky enough to come into

a firm that was doing only personal

injury, wrongful death cases and trying

cases. So pretty unique in these days.

I mean, I only knew what I knew. This

is just the life I lived the way I was.

I'd never been in another law firm.

I didn't know how things worked.

I actually got sworn in and we were

in the middle of a medical malpractice

trial. We actually left the trial.

We for the weekend went down to

Indianapolis and I got sworn in.

I came back and we finished the trial.

Of course I wasn't doing anything in

that trial, it was my dad and my brother.

But literally the day I got sworn in,

we were in trial and then my first

trial was nine months out and

my dad threw me into a sprained wrist

car accident case just to get me into the

courtroom. So I mean, you can't,

don't think a smaller injury

than it's a T-bone type accident.

The guy sprained his wrist and I tried

the case and I won the case. I mean,

I had three or four times the

offer, but as you might imagine,

the offer wasn't very big.

But I was lucky enough to come into a

firm that does nothing but personal injury

and wrongful death that I was kind of

thrown right into trial right away and

sort of learned along the way,

not only through errors

and mistakes I made myself,

but I also was watching my

dad and my uncle growing up.

So I was sort of bred to be a

trial lawyer, I guess so to speak.

We've had a lot of guests on the show

who have similar stories where their dad

was a trial lawyer, started a firm,

and I've always found it's both a blessing

and a curse because there's ways in

which you want to emulate

your dad probably in things

that you learned from him.

And there's probably a way you needed

to chart your own path and find your own

voice. Can you talk a

little bit about that?

Absolutely. So there's no question,

and I like to say you sort of stand on

the shoulders of your dad or your uncle

or everybody who came before

you, but of course there's,

and we kind of talked about

this before we got on,

there's kind of an old way and a new

way and it's kind of a fun synthesis of

trying to figure out both ways,

trying to maybe pull them into the

newer world with technology and

AI and things like that. And then

there's kind of old school ways,

things they do, things that also

you sort of learn along the way.

So it's kind of a great

synthesis of both ways,

but I can't even begin

to explain the benefit of

coming into the situation of having

someone there to help you kind of push you

farther, get you in the courtroom.

And I have absolute hats off to everyone

who kind of charted their own path and

did it their own way without that.

I only know the way I did it,

and I don't want to say it's ever easy

to be a trial lawyer because it just

isn't. But if there was a way to make

it easy, I'll be honest with you,

I walked into a firm where they let

you try cases and money was never

a conversation ever in my life.

We never evaluated a case worried

about spending money here or there,

money or we didn't have to worry about

keeping the lights on or any of those

things. I understand those are

real struggles for real lawyers,

but I was lucky enough to not have those

things that are sort of burdens that

hold you back.

I came out guns blazing and could kind

of do whatever I wanted right out the

gate. So like I said,

I have hats off to those who chart their

own path or didn't have the intro that

I had to the legal profession.

So I'm going to ask a challenging

question right now. Okay.

Who's the better trial lawyer,

your dad or your uncle?

Well, I mean, so if you ask anyone in

our law firm who's the best trial lawyer,

they're all going to say themselves

and as you should I think, right?

So of course I look up to my dad,

but my uncle also gives

me great advice as well.

And it's really in the law firm,

there's five of us, there's me, my dad,

my brother, my uncle, and my cousin.

So five lawyers all schaffers.

And like I said,

I think you sort of need that sort of

chip on your shoulder maybe to say,

I think I do it better than you. It

does happen where my dad thinks X,

I think y we both think we're right,

but it creates a good conversation,

good opinions on both sides, hard to say,

but I can assure you that if

you asked anybody in the firm,

their answer is that

they're probably the best.

Having a strong ego does tend to

be important part of what we do.

Give us some of the insights you've

gained through the years. I mean,

what are some of the things you didn't

know when you were just starting out that

you think now to accelerate the learning

curve of some of our listeners who are

trying to get better at the

craft and learn how to try cases?

I would say in my opinion, at

least the least talked about,

and you don't find a

whole lot of literature,

books and advice on what I

believe is the most important part

of trial is voire dire.

And the reason is somewhat because

state by state it's extremely

different on your time what you can do,

what you can say, how you're doing it.

So there's a wide variety of

depending on what state you're in,

what you can and can't do

or the time you're given.

But my personal opinion is the most

important part of trial is in fact

your jury selection. If you

don't have the right jurors,

I can assure you it doesn't matter

what words come out of your mouth,

it really doesn't matter what evidence

you have. They believe what they believe,

they're never going to bring

back a verdict for you.

And particularly if you're dealing

with a big case and you're talking big

numbers, it's something that I think is

critical. I spend as much of my time,

unfortunately in Indiana,

we're not given a lot of time,

usually our voir dire maybe an hour long.

I spend as much time as I can talking to

people about money and their ability to

award money because that

ultimately is our job.

And I would tell most young lawyers,

even when I came into the practice,

I'll be completely honest with you,

there wasn't a big conversation in my

dad or my uncle's voir dire about money.

And I think there was this natural fear or

trepidation to bring up money because

you don't want to turn off the juror.

And my response was immediately, I

mean, I'm not turning off the juror,

but I want to find the juror who's

turned off. So I want to bring this up.

And if me talking about millions

or tens of millions or even,

I mean some of your cases,

hundreds of millions of dollars

turns you off. I need to know that.

I need to know that honestly upfront

before we even get into it, right?

I think that's probably

the part of trial that

a young lawyer should focus on,

I think is voir dire and they don't

really have a lot of information out there

about doing it the right or wrong way

because of the state by state changes.

I think that's probably, I tell

everyone voir dire is sort of it.

I've had juries come out.

One of our biggest verdicts,

we had a trial where kids walked

out on ice and they fell on ice.

And usually water is a known

hazard and you can't bring a case.

We had an argument that there

was an overflow crib that

created water circulated

under the ice and no one

understood what it was.

And there was an overflow crib and it

looked like it was like a toy or kids are

drawn to it. So these kids walk to it

and they fall on the ice and one drown,

one had a brain injury and the other

brother watches. It's three brothers.

It's a long windup for, it

was a very difficult case.

We didn't know if we were going to

win summary, get by summary judgment.

We did get by summary judgment,

and this was the first case,

and I was a young lawyer,

but I right away recognized voir

dire is important and I spent all

kinds of time dealing with voir dire.

This is the first time my dad really

gave me free reign to kind of do what I

wanted to do.

And we put together this voir dire end

up trying the case Ace winds up with a

30.7 million verdict, which

was fully collectible.

But what was interesting is the jurors

came out to us hand to God and said,

you guys won the case when

you were done with voir dire,

you sat down from voir dire before

you stood up an opening statement.

The case was over with the way I

systematically walked through all of the

bad things in the case,

all of the things we were worried

about and sort of given the multiple

perspectives on it and kind

of seeing how they felt about,

it's not through directly the facts

of the case, but using analogy.

They figured it all out and they said

you actually won the case before you ever

got a word in opening

statement, which was surprising.

Well,

give us an example of one of the analogies

or how you worked through the issues

during voir dire.

And I don't remember off the top

of my head, it's like 10 years ago,

but one major issue was they're blaming

the parents. The kids were there,

so we brought up analogies

about, not even analogies,

but their real world life

about the kids were I think

12, 10 and nine.

And we were bringing up their real world

life of do you actually know where your

kids are a hundred percent of

the time? Do you let kids play?

Do kids have lives mean?

So if we brought those things up to

them to bring out their understand,

you do kind want to say, well,

where are the parents at? Right?

But when you get in the

real world, kids are kids,

they do go down the street or

they do go play. I mean, hell,

I know when I was a kid,

we ran all over the place.

We rode our bikes and did whatever.

No one thinks that's a bad thing.

And so we brought out as many real world

things as we could to make them think

about it.

We also brought up the issue of water

and it being dangerous and whether that

was going to be a defense. And so what

we would try to do a little bit of,

I know Don Keenan was big in the

reptile about some people think this,

some people think that some people think

that you should have your eyes and your

kids 24 7.

Other people think kids should be able

to go play and it's nothing wrong.

And when you put that out in front

of the jury, what felt like, oh,

it's their fault. When

you ask that question,

it's kind of obvious you can't have your

eyes on your kids 24 7 doesn't make any

sense. You can't fault the

parent. And sure enough,

the jury in that case brought back

a hundred percent fault, ironically,

and gave zero to the

parents. So like I said,

we just systematically sat down and

round tabled all of our issues of which

there were plenty,

and it just systematically went through

them all and the jury immediately said,

we thought you're right.

Before you even spoke a word.

How do you like to talk

about money in voir dire.

As directly and as long as I can,

it can be simply saying,

I'll bring up if the judge will let

me bring up a specific number, I will.

If they won't,

then they always let you say tens of

millions or millions of millions or

whatever you're going to be asking for.

Some judges will actually, I argue, Hey,

the defense is going to get up

if it's a liability case and say,

can you bring back a zero? Right.

And I'm not going to object

to that and that's fair.

So I should be able to get up

if I'm going to ask for 30,

40 or 50 million and ask about it,

but I normally I do a little

bit of a stepping stone.

I may just directly ask the

facts and evidence support it.

Could you bring back a verdict to $50

million and see what they say? And if

someone has an issue with it,

my argument to the judge is,

my question is that the facts

and evidence supported it.

If they're not going to do that,

then they're inferentially saying they're

going to ignore the facts and evidence

of this case and you can't do that. And

we would move to have them stricken.

I then would go,

the next step would be explaining to

them the greater way to the evidence.

We call it preponderance of the evidence,

responsible cause whatever it may be.

So what's the greater way to the evidence?

And we go through that and say, okay,

now if the facts and evidence

support it, could you bring back it?

Even if the evidence is

only that we're 51%, right?

Could you still bring back $50 million?

And so I'm testing not only your

ability to give money upfront,

but now I'm testing your ability to give

money in light of the standard. If you

can't do that and you can't

file the standard of 51 to 49,

we would also move to strike.

And then probably my favorite question

about money is normally towards the end,

I'll just say, on a scale of one to 10,

how comfortable are you bringing

back a verdict to $50 million?

And I really like that one.

It gives people that we sort of

feel like if it's not eight, nine,

or 10, you have to worry about those

people. They're saying, yeah, yeah,

I could give you 50

million. And I said that.

But if you ask them on the scale

of one to 10, how do you feel?

And they say five. Well, like I said,

I really go through it like a process

of stepping through and bring it up as

much as I can about their ability

to bring money back. Because again,

that is ultimately our job. I mean,

that is the one thing we are doing.

And yes, there's fault and I understand

all that, but at the end of the day,

the jury's verdict is either going to

bring money back or it's not right.

So it's the one thing we have to

make sure we know. And I tell judges,

I know there's a bit of a

push in the defense bar.

They try to stop this and thankfully

we've been successful every time getting

around this by briefing to the court,

but I tell the court

at the end of the day,

this is the one job and the one thing

the jury has to do, if there's one topic,

we all have the case law that says we're

looking for a bias or prejudice jury.

So I was like,

the one job they really have is to

either bring back money or not. I mean,

if I can't ask questions about the

bias and prejudice to the one issue,

they really kind of decide

what exactly are we doing here?

That's the most important thing we can

talk about. I mean, don't get me wrong.

In a truck case, you want

to know if they're truck

drivers and things like that,

but ultimately their job is

to bring back money or not.

And I need to know if there's a bias or

prejudice to their ability to bring back

the money without direct

conversation about the facts.

And one thing we do kind

of do as well if we can,

we do have a jury rule that does allow

a judge to give us a mini opening

statement. We've done that. Sometimes

we've chosen not to. Other times.

That's an interesting dynamic where you

get to pitch a little bit of your case

and now you're asking

questions in relationship to

the idea that I did tell you

a little bit about what this is about.

That's a really interesting idea at times

with the right case to see how juries

feel about the facts that

you've actually presented to.

So we do it sometimes we

sometimes don't. But like I said,

we have a bit of a process when

it comes to talking about money.

What about the different

categories of compensation,

medical expenses versus

non-economic damages or loss of

earnings versus the non-economic

damages and the elements in Indiana,

do you have any breakdown of that

as you're doing dire with the jury,

or do you just kind of

keep it as a lump sum?

I do. Now what's interesting is

in Indiana, the verdict form,

I would love to have broken down

verdict forms for each element, right?

Makes it a little easier. Is it 20

million or is it 5 million? 5 million.

5 million fight, right? But we

have to have a verdict form.

Our verdict form is just the big number.

So I personally try to use the big number

as much as possible because ultimately

they're going to have to write it down,

but I can't hide it between 2, 5, 10,

whatever. So I use that as much as

I possibly can. Needless to say,

if you have good economics, I

mean we obviously would use them.

Oftentimes when I'm trying cases

though, I'm trying to exclude economics,

so I don't know how you guys do that.

But oftentimes medical bills lost

wages are just not big enough for me

to care about,

and it's too much fodder for the defense.

I learned this in my very first trial

actually with the sprain and wrist,

and I claimed lost wages and he spent

an hour cross-examining the guy over.

It was like 5,000 in lost wages.

Such a small case I did it,

but I learned right away it was fodder

for him to talk about your medical bills

and your lost wages wage, not about

the life and health of a human being.

And as much as I can focus my case and

the simplicity of the life and health of

a human being is what I want to

do. So often in my voir dire,

I'm kind of saying, forget

about economic damages.

This is about a noneconomic case.

Unfortunately, we have a case,

wasn't my actual case in Indiana

where this issue went up.

There's good case law throughout the

country, so anybody fighting this,

there's plenty of good case law saying

economics are not relevant if we waive

them,

but we have a case that kind of says

it's up to the judge. It doesn't say one

way or the other, but it's a

discretionary ruling. And by and large,

I've had since that case, judges

allow them to use economics.

So I'll spend quite a bit of time in

voir dire explaining that to them.

A couple different

things, again, using that.

Some people think of

medical bills are low,

then the non-economic human losses,

pain and suffering should also be low.

Other people think they're completely

irrelevant. Which way do you lean on that?

And I get the jury talking,

do you think this matters?

Do you think this doesn't

matter? And by and large, again,

the beauty of that question is everyone

sees it in the end once you ask that

question. Yeah, what does that have

to do with it? I'll even ask them,

when my clients think back

to this accident this day,

do you think what they think about

in the midst of this conversation,

get a conversation going, if this

is going to be an issue, I'll say,

do you think what they think about is

the lost wages of medical bills? They

think about the fact that

his life has changed.

His life's never going to be the same.

What do you think they value more?

And I'll flat out say,

point blank amount I'm going to ask

for is going to be many, many times,

maybe hundreds of times what the

economic damages are. In this case,

can you still bring back a verdict for

X amount of dollars pain in suffering?

So if I have economics, I

use 'em, but by and large,

my voir dire is geared

towards non-economic damages.

A recent verdict I had in Newton County,

Indiana, I was trying to exclude,

and it was a fairly big case, and I

think it was like 350,000 in medicals,

which is a decent number, but I

knew in the grand scheme of things,

that wasn't a big deal.

Right? And sure enough,

I tried to exclude it. The judge

let it in, and I never mentioned it.

I never mentioned the number. I

never mentioned economic damages.

The defense put them into

evidence, and sure enough,

they tried to use the noneconomic or the

economic damages to say, okay, 300,000,

give them a million

dollars or whatever it was.

The jury of course rejected

that, but in Indiana,

they bring 'em in and I'm trying

to keep 'em out. I'm predominantly,

I would say, more times than not trying

to keep economics out of the case.

And if you look at it through that

lens, and this case is just about,

is the life and health of a

human being worth a lot of money?

I like standing on those grounds, right?

That's the argument I want to have.

Fighting over nickels and

D over economics is not.

That's a defense game.

I get so cheap sometimes on it though.

It's like if they owe my client the money,

then I want my client to get the money.

And then if they're going to stipulate

to it and then it makes it on the verdict

forum,

this is a big discussion in our office

all the time because different people

have totally different perspectives.

Not saying I've got a blanket approach

that I always want to keep the economics

on the table, but even when they're low,

sometimes I still like to have it on

there and talk about how cheap these guys

are. They won't even pay my client

the 50 or $80,000 in past medical

expenses unless the jury tells 'em

to, even though they agree to it.

So it's just such a fascinating issue.

And if liability is an

issue, it makes sense.

I see that argument because they're

trying to say, I don't give 'em anything.

Right? My problem is when I'm not

saying liability are admitted,

but maybe there's comparative, they

know they're at fault. The argument,

which is the best argument I think they

have is saying, Hey, give them that.

Give them the lost wages. We feel

bad, right? We're good people.

Give them that and then give them, in

the case that I was explaining, he said,

ironically, the guy had no lost

wages, which was an amazing thing.

He was a farmer for whatever,

but he had three 50,000. He said,

give him that and then

give him a million dollars.

And he was hoping we were

in Newton County, Indiana,

and he was hoping that sounded like

a lot of money for what it's worth,

the jury,

and bringing back a verdict of $30

million. So they obviously rejected when I

talked with the jury after

they were offended by how,

and I made a big deal and rebuttal

about how ridiculous this was.

This man's life has only worked this

or that. But at the end of the day,

I worry,

I guess is what I say is that their

best argument is give them the

economics and then give them what seems

like maybe a decent number and will a

jury buy into that, right? A lot of

jurors, particularly maybe small counties,

can say, wow,

they're going to get paid his medical

bills and give him a million bucks.

That's the concern. I try to take that

off the table if I can. But again,

in that case, it's another

perfect example of it coming in.

It obviously didn't affect anything,

and he tried to use the same argument,

but I do got to say in voir

dire, I made it crystal clear,

we are asking for way more.

And I again,

dealt with this issue in

voir dire extensively to

make sure they realized this

doesn't matter. And in closing, I usually

use, I talk about buckets for each.

I go, there's a bucket of

economic or lost wages maybe,

and there's medical bills and then there's

human losses or whatever you want to,

however people want to call it. And I

say one bucket doesn't affect the other.

So whatever the medical bills are,

it doesn't mean that the human

losses aren't a big deal.

And oftentimes in this case,

it was partly a brain injury.

I say that unfortunately,

there's nothing they can do.

The mere fact someone has an injury,

it's the saddest part of the case.

There's nothing they can do for this

man. Modern medicine's a great thing,

but there's nothing they can

do for this man to fix him.

We could fix his knee if it was his knee,

but it's his brain. There's nothing we

can do. So his medical bills are low.

That doesn't mean his life hasn't changed.

The most important valuable

thing a human being has,

the best asset we have is our brain

and they've damaged it forever.

That's important and that's valuable

regardless of the fact there's no medical

care and treatment because we can't do

a whole lot for this person. So again,

it's always, I think that the defense

loves to call 'em low. I mean,

in the context of the case, three 50

was low economics they like to use.

Of course, if you have a life

care plan, I mean the right cases,

you have a life care plan or someone

you had to change jobs or can't work.

I mean, we're talking, we'll of course

work those up and we use those as well.

But those are of course,

significant catastrophic injuries,

which we get some of them,

not quite as many as you guys.

Maybe when you get 'em, they're great,

but normally we're trying cases where

the economics aren't that big of a piece

of the pie.

I imagine Indiana's not the most hospital

environment for plaintiff's cases.

Can you tell us a little

bit about folks there?

The people you're seeing show up for

jury duty and these lines of voir dire

questioning.

Are you finding you're excluding a

lot of people for cause based on this?

Yeah, I do find quite a

bit of people who will be,

they don't want, particularly,

we're talking big dollars in,

call it a herniated disc case

where they have a few injections.

We might be seeking four

or 5 million at trial.

People don't jump out

of their seats so bad.

But when you're looking at big

dollars, 30, 40, 50 million,

we do see people do have

issues with it, which again,

as another maybe teaching point to any

younger lawyer listening is you should

thank those people. The minute

someone tells that to me,

I'm the happiest guy in the courtroom,

I say, thank you, thank you,

thank you for having the

courage. To be honest,

I don't know if you thought I wanted

to hear that, didn't want to hear that,

but you had the courage to tell

me the truth, and I appreciate it.

Does anybody agree with Mr. Smith?

Right?

I'm trying to find who that was the right

thing to do. You did the right thing.

I'm proud of you,

and you have courageous human being for

standing up and saying what you believe

in, who agrees with them. And

I try to find as many people.

And then just common sense, if you

think about how that plays out,

is you get rid of those jurors.

You have set a bunch of people who

could give $50 million, right? In 2020,

hindsight kind of obvious,

right? Once you think about it,

it's like you want to find these

people to deal with it upfront,

and then you have a jury of people

who are at least willing to listen,

not going to give it to you.

The defense is going to get up and have

their own side, and you can give zero,

you can give less.

You're going to listen to the evidence

and they're going to listen to the

evidence.

But at least you're going to consider,

I put on a case and I show that this all

really happened and this is a problem.

You can keep an open

mind to a large number,

and that's something you want to find out.

But I would say probably my biggest

advice to anybody trying cases

in Indiana or any other

conservative state,

don't let people talk

you out of it though.

I like to think I've sort of proven

in some degree that you can try cases

anywhere and get big verdicts.

And I think maybe the

biggest problem is people get

talked out of trying cases

in a conservative county

or a conservative state

because they're scared and they do the

same tactics with me and they try to tell

me about all the past

verdicts. No one's done that.

And I think the answer is maybe people

aren't trying enough cases here. Maybe

people aren't doing it the right way,

I guess. And at the end of the day,

I try to tell people, don't get scared

about trying cases in rural counties.

If your ultimate point to them is we

think the life and health of human

beings worth a lot of money, I'm just

telling you, I don't care what state,

what county you're in. There's not that

many people who are going to have crazy,

crazy blowback on our life

in here, in this county,

in this town is valuable too.

It's not just Chicago, la,

whatever it may be, where you

hear about these big verdicts,

the life and health of the human being

everywhere is important in value,

but you may even say something like

that in closing or whatever. So yeah,

I do find some people speak

to the issue and I will say,

I love those people. I'm happy that

they have the courage to say it to me,

and I encourage more people to say it

to me when someone does bring it up.

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What are some of the popular defense

themes in their voir dire that you've

seen, and are there any that

you found to be effective?

And then how did you kind

of pre counter punch those?

Yeah,

so they want to talk about economic was

one of the things we were talking about.

They want to talk about economic damages

a lot because they were trying to bring

the verdict, in my opinion, anchor as

they call it, the anchor to that number.

They try to bring the verdict down.

Certainly personal responsibility

when they're trying to blame your

client, particularly maybe in a trip

and fall, slip and fall type case.

They bring that up a lot, money.

Those are probably the two main things

I can think of that I go in saying,

I know we're going to

have to deal with this.

And I have maybe the simplest flip

on the personal responsibility.

I just focus on corporate responsibility.

I kind of get there first.

Mind you assume a

corporation's involved, right?

It's hard to talk about personal

responsibility if it's like a car accident

where the defendant's wrong because

there's personal responsibility on their

end, so they don't do that.

But usually it's,

I feel like a corporate world

and so I'll in voir dire,

maybe sort of focus their attention

to the best I can on corporate

responsibility, corporate

safety, following safety rules,

whatever it may be before

they ever get there.

And I may even bring up the

idea of personal responsibility

in light of that to

kind of head them off. Sometimes, again,

I'm limited so I can't always do it,

but if I feel that there is a important

point that I think the defense

is going to bring up, I actually try

to bring it up in voir dire first.

I'll bring up their point for them,

but I'll try to do it in a giving them

the other side of the coin rather than

just letting them raise it.

So sometimes I'll bring up the worst

parts of maybe my case or what I think

they're going to bring up in voir dire.

I'll bring it up first to put my own,

I don't call it spin, but

my own perspective on what

they're going to bring up.

What about sympathy?

Does that ever come up?

Does the defense try

to conservative venues?

I guess I don't know if they ask about

if people hate corporations in general

and if there's an anti-corporate

sentiment in general out there,

or try to get off people who even

wear their heart on their sleeve

or however they want to say it. Does that

ever come up in some of your vo dires?

Yeah, sure.

I sort of bring it up a question I like

asking if there's a corporation, again,

on a scale of one to 10, something along

the lines of on a scale of one to 10,

you strongly agree or disagree,

corporations will manipulate the

system to avoid responsibility.

I kind of jumped into it right away.

I know they're going to bring this up,

so I do it in a way that lets them say,

which by and large I've gotten great

answers to. And it's a fair question.

That's a fair question to ask of a jury.

How do you feel on a scale of one to 10?

A corporation will manipulate the

system to avoid responsibility,

and then you kind of use

that as a touchstone,

a theme throughout the

case at a cross exam,

you could bring about manipulating

something and closing argument.

You reiterate it, and it does become

sort of a theme that I think all of us,

at some core level,

we are always saying it's amazing to me.

Sometimes I think there's great trial

lawyers and trials I've watched.

These are these touchstone points

that sometimes I just say it out loud,

I just say it, what we're getting at,

which some people hint at and I get

there's some science to that too.

Let them kind of figure it out.

But I'll oftentimes just

say what we're thinking.

They'll bring up the corporate stuff,

but usually I bring it

up in voir dire too,

if I have a corporation

on the other side first.

But sympathy as well though too.

You asked about sympathy and not that

I don't necessarily do it in voir dire,

but in closing, they'll

talk about if they bring it,

they make a big deal about sympathy in

voir dire. I'll bring it up in closing,

talking about, they talk about

sympathy. We're not here for sympathy.

They've had sympathy for many years.

They've got a lot of sympathy.

We're here for justice to make it right

to right the wrong that's been owed

here and they now owe it. So

if they are hammering sympathy,

I'll let them do it. And then in closing,

I'll make it crystal clear

we are not here for sympathy.

And then even turn it around because

oftentimes I had a case against JB Hunt

where my client was horribly injured,

wheelchair bound, brain injury,

horribly injured, and they

brought this up about sympathy.

You're going to feel bad

for her, horribly injured.

And they did that and I let them

do it. And then in the case,

they were acting like

their truck driver was so

injured, he couldn't set out

his flashers and triangles,

which was the point of our trial,

but their truck driver was so

injured that they wanted sympathy.

And so I in closing said to them, you've

heard them talking about sympathy,

sympathy, sympathy. Incredibly. Who was

it here? Who asked you for sympathy?

Who put on the case asking for sympathy?

It was them trying to get

sympathy for their person.

The only thing I ever asked you to do in

this case was judge this case based on

the rules. I never asked

for sympathy one time,

but you need to judge this case based on

the rules and whether JB hunt violated

the safety rules and they

didn't violate the rules.

They're the ones putting on a

case about sympathy. And in fact,

the irony of the whole thing

was the guy completely lied.

He said he couldn't move, but he goes

to the doctor and the doctor discharged.

He's not even, doesn't stay the night

at the er. I mean he's perfectly fine.

So they had this big windup I felt like

of sympathy because our client was hurt.

And then I said the exact opposite.

I'm not looking for sympathy at all.

I just want you to do what is right based

on the rules of presented to you here.

And the defense is passeng simply.

So it sort of blew up in their face.

You've had an amazing run

of getting really great

results in case some cases that seem

really challenging from a damages

standpoint, getting values multiple times,

probably what many lawyers would

tell you that the case was worth.

And that goes to your point about

valuing the human losses and the human

damages, and you clearly are very

effective at making the case for that.

How much of that do you think is driven

by the liability side of the case?

We spent a lot of time on the money

side and the conventional wisdom is that

it's anger at the lack of

responsibility and they're

violating safety rules,

putting people at risk.

That really drives the

economics in a case.

Are you finding that and

how are you working the

liability side of your cases to

accomplish that?

Of course, the better liability argument,

the more egregious the safety violation,

the more the jury is going to be upset.

Even one more step is even if it was

simple or cheap or easy to fix and they

didn't do it, that's always going

to help increase the verdict.

In the state of Indiana, unfortunately,

we have horrible punitive damages law,

so we never bring punitive damages

because it changes the standards.

I don't want to confuse the jury and

then 75% of the money goes to a victim

compensation fund. My client

doesn't even get the money.

But if you're in a state where you can

collect punitive damages and you can

utilize that, obviously I know this

is kind of segueing back into money,

but if you have a big defendant,

a lot of money and you can get that

into evidence. We've never done that.

So for all of our verdicts, I've

never been able to say, Hey,

JB Hunt's worth 13 billion.

I mean, people have common sense.

They know they're worth a lot of

money, but the egregious the liability,

the better obviously. And it's also

great when to give the JB Hunt example.

That was really a liability

case. She was badly hurt.

They knew that was not the

issue. It was about liability,

but I was using some of their own

policies and procedures against them.

It's your standards, policy, procedures,

and then they're trying to talk

them away. It drives the jury nuts.

All I'm asking JV Hunt to do

is follow their own rules.

They're acting like I'm an unreasonable

person in this courtroom saying,

follow your own rules,

which you admitted you created and put

into place to prevent the exact type of

accident which happened

in this case. Credibility.

We all know credibility

in the courtroom is king,

and I like to stay true to that. I try

to be the most reasonable person in the

courtroom, which is kind

of a weird thing to say.

I'm not a polarized 1000%.

I only see things this way.

I try to be reasonable with both

sides and I hope the jury takes away,

I'm not just plaintiff lawyer

pushing for the plaintiff.

I'm a human being talking

from a human standpoint.

And I can understand both

sides of this. For instance,

to give you a small example, in that JB

Hunt case, right? In closing argument,

I actually said something like, the

guy did report to JB Hunt, by the way,

his legs weren't working. He said

that, and then he goes to the hospital,

checks out and everything's

fine. He gets discharged.

So I said something to them like ladies

and gentlemen, the driver in this case,

he's a human being and he

was in an accident and he

damaged property and he was

scared and he called his supervisor.

And those things you see in the reports,

they're true. He said those

things because he was scared.

He's a human and that's okay

maybe, and maybe that's okay.

We could give him a pass for

doing next. He's a human.

But what isn't okay is

knowing that that wasn't true.

Coming back in this courtroom and JB Hunt

telling you that lie a second time to

get out of paying for what

they did to this woman's life.

Maybe we can forgive the first one

because he's a human, but the second time,

this is ridiculous.

You can't come into a courtroom

and say this thing a second time,

particularly after we've

unearthed all the evidence,

proving what he said was not

true. So I try to be like,

I can understand where this guy's coming

from. I can understand how we got here,

how this evidence exists.

We see this in the records because it's

true. That was said, that was done.

We have to look at it as real people

and explain why is that the case.

Another simple example I

had is I had a case where my

client,

bunch of gas cylinders fell on his

leg and hurt his leg really bad.

He had compartment syndrome

as a pretty bad injury.

He had to change jobs and

it was sort of a mess.

But they got a work report

and the work report said,

I have no injuries. I'm fine.

He said all these great things.

They have this sparkling report from

him, he signed, he fills it out.

And instead of beating around the bush

and trying to come up with some clever

whatever, we just told the jury the

truth. We were reasonable people. We said,

ladies and gentlemen, in the

real world, if my client,

this human being as a family has to feed,

he writes down the truth into that note

and says all these problems he has,

he's going to lose his job.

That's the real world.

So he puts something in there that simply

wasn't true because he needed to feed

his family.

This document that they thought was so

important that this is going to kill us.

Your own guy is saying he's fine,

which was true. But the real world,

the human aspect,

the reasonable person in that

courtroom understood what I was saying.

He's doing what he needed to do to

provide for his family and we're going to

make it okay. It was not true. It's

a lie if you want to call it a lie.

But he was doing what he needed to do

as a human being for the benefit of his

family. So I try to be reasonable.

I want to be in that reasonable

area, not so I'm all defense.

I'm all plaintiff.

And if you walk out of the courtroom

that way with credibility being a

reasonable person, speaking to

them like a human being, I mean,

I think you're going to win most of

your trials, I'll tell you that much.

Yeah, that's extremely

insightful. And in my experience,

completely correct. And

I think a lot of lawyers,

it may take decades to learn that lesson

because what we're trained to do is to,

like you said,

find some creative way to explain the

document or to file motion li to keep it

out or elevate its importance

by objecting to things.

All of those things are

the wrong approach to that.

What you just did takes all the

energy and wind out of the sails

of that argument, and you're trusting

the jury that they're going to get that.

But if you can't trust them with that,

you're going to lose anyway. Right?

So it's just such a great

insight, such a small thing.

But that same concept applies

to so many things in every case.

It not only is to your benefit to

be reasonable and tell the truth and

view things as a human, but it immediately

makes it look like now they're like,

we know. That's why he wrote it.

Why do you keep talking about this

defense lawyer? So now in the courtroom,

we have a lawyer and we have a human

being, and you want to be the human being,

not the lawyer. And that's

what that ends up doing.

And they don't don't know when to stop.

They keep pushing and pushing

that lawyer's edge, if you will.

And that's what jurors hate.

That's what jurors reject.

I always tell people the irony is,

and I'm not saying they're

going to tell me this,

but when you walk into a courtroom,

if jurors dislike lawyers,

I think it's ironically to my benefit,

because I like to think

by the end of this,

you're going to see that I'm not the

lawyer in the courtroom he is or she's

whatever you're going

at the end of the day,

the lower bar you have

for a plaintiff's lawyer,

if you think the least of me,

it's kind of easy for me to

get over that bar. Right?

So you see what I'm trying

to say. So ironically,

I think it's weirdly a benefit

where they go, wow, this guy,

he doesn't look anything like the guy

on the billboard. You're not that bad.

Exactly what I thought he

was be at all. And in fact,

you come away being a

reasonable person saying,

and then your ultimate end all pitch kind

of regardless of the cases is saying,

our real discrepancy here,

maybe there's a liability issue.

It's just saying we think the life and

health of human beings worth a lot.

The defense disagrees.

And one thing about getting

big verdicts is people too

oftentimes are worried about,

worried about just what happened and has

happened to that point when really the

biggest part of your case is your future

focusing on what hasn't yet happened.

But jurors, again,

they do understand that when you say

maybe you have a kid in his twenties,

I don't get to show you

this kid when he's 50, 60,

70 years old and all this is significantly

worse. He's got multiple surgeons.

I don't have the benefit of that.

You've got to do this today,

but you have to consider all that time.

And I'll even use that going back to the

medical stuff where they talk about the

medicine I'm like,

they're only talking about the medicine

for the last three years, right?

This kid's got 40, 50, 60 years

of dealing with this. The future.

Why are we even looking at that number

to try to say what this human losses are?

And when you start looking at

human losses over 50 years,

even on what's considered a small

case, kind of famously in our office,

I tried a case,

kid was 22 years old and all he had

is a herniated disc in injection.

No surgeries, just one injection.

Medical bills were $10,000.

And I wanted to ask for 2.3 million

and my dad fought with me and said,

it's too much money.

It's too much money, whatever we fought,

well I did it anyways, right? So I

asked for 2.3 and the jury gave me 2.75.

So needless to say, we had a

good laugh where we were wonder,

my dad thought it was like, this is crazy.

You're asking for $2.3 million in a

herniated disc with one injection,

and the jury gave you more

money than I asked for.

So it's being human and

reasonable in the courtroom,

I think is what ultimately, that's

who you're talking to, right?

You're appealing to them as

people, not as lawyers. So I mean,

that's the number one takeaway I think.

Well, Todd, thanks so much

for doing this today. I mean,

there's so much great

insight here for people.

I hope they will follow your advice.

It's going to help a lot of lawyers

get better results. And Rahul,

good luck in the remainder of your

voir dire. Hope that goes well.

Thank you. Great seeing you, Todd.

Thanks so much for joining us.

Great seeing both you. I

appreciate you having me,

and I'm looking forward to

reading about the big verdict.

Looking forward to seeing you guys soon.

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