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The Effective Lawyer teaches ambitious trial lawyers how to grow their skills and create a prosperous law firm. Using lessons learned by accomplished attorneys from around the country, we discuss lessons learned through their trials and tribulations. Our discussions cover a vast range of topics sought out by attorneys looking for advice, from depositions to how to market your law firm.
The show is hosted by Jack Zinda, Founder and Senior Trial Lawyer at Zinda Law Group. In less than 15 years, Jack and his team have grown Zinda Law Group from 3 attorneys to over 30, spanning several states and handling a variety of personal injury cases from gas explosions to truck accidents.
Jack and his guests share their knowledge and skills that they’ve acquired through the process of building one of the most successful plaintiff’s law firms in the country.
In each show we cover a new topic that an ambitious attorney would want to better understand, while providing practical skills to improve their legal practice.
For more information, visit https://www.zdfirm.com/the-effective-lawyer
00:00:00:00 - 00:00:14:19
Speaker 1
Welcome to another episode of the Effective Lawyer podcast. I'm Jack Zinda and I'm here today with Max Massey. How are you doing, Max?
00:00:14:20 - 00:00:16:08
Speaker 2
I'm doing great. Happy Friday.
00:00:16:12 - 00:00:22:05
Speaker 1
Happy Friday man. Bar results come out next week. A lot of nervous people.
00:00:22:06 - 00:00:28:10
Speaker 2
A lot of various people. Shout out to, are to law clerks. And, I was reminiscing with them today.
00:00:28:13 - 00:00:29:25
Speaker 1
I was a long time ago for you. Right? It's a.
00:00:29:25 - 00:00:48:09
Speaker 2
Long time. Feels like just yesterday. Because I remember the morning of last year, the Basel's website crashed. Wow. And so the results didn't come out. I was running late because I was frantically checking. Yeah. And page fiance, soon to be wedding. I don't know how. Hopefully. Yeah. Hopefully. Yeah.
00:00:48:11 - 00:00:49:29
Speaker 1
But we'll check this next time next year.
00:00:50:03 - 00:01:10:12
Speaker 2
Exactly. She was like, well, what are you going to do if you don't pass? And I'm like, well, then it might just be a really short day at work. And so I get in and everyone's frantically like, hey, did you pass USA? I haven't checked yet. Why would you even show up if you check? But obviously it all worked out, and I'm sure Samir Julia did wonderfully.
00:01:10:18 - 00:01:21:09
Speaker 1
It is so bizarre to me how Texas handles like. I don't know if they still do this, but when I was getting the results, they posted your name online and if you didn't get it, like you're just name just wasn't there.
00:01:21:10 - 00:01:22:20
Speaker 2
Yeah, that's still the same way.
00:01:22:21 - 00:01:29:24
Speaker 1
Such a weird way to do that. It's not confidential. It's just like, hey, we're just not going to share your name. So all of your friends can see that you are not there.
00:01:29:26 - 00:01:48:21
Speaker 2
That's it. And it's, you know, we obviously every school has a couple people that don't make it. Yeah. And it's it's not the people that you see. It's the ones that you don't that you be like, oh no. Inevitably, like we'll post something on social media like kind of walking that thin line of so proud of for all my classmates, like on a February or something like that.
00:01:48:24 - 00:01:59:19
Speaker 1
We, unfortunately, we've had a couple law clerks that didn't pass there, and it was really rough. That felt so bad for them, when that happened. Because it's tough. Like, it takes another six months for you to take the test again.
00:01:59:20 - 00:02:04:06
Speaker 2
It's so frustrating. But here we are. And, helping out a lot of families. Knock on wood.
00:02:04:09 - 00:02:20:20
Speaker 1
Yeah, man. And, well, this podcast is for people that have passed the bar about to pass the bar. Yeah. And today we're gonna talk about wrongful death cases. We've got some questions that we've gotten around from the law firm, but also from other attorneys I talked to and some of the pitfalls and tips and tactics you can run for wrongful death cases.
00:02:20:20 - 00:02:30:00
Speaker 1
And I thought it'd be great to have Max here ask me some questions. Since he is relatively new, about 18 months as a lawyer. Yeah. So, Max, what questions do you have on wrongful death cases?
00:02:30:00 - 00:02:51:18
Speaker 2
So it's actually incredibly pertinent because I'm working with one of the partners, Neal, settlement on one of his wrongful death cases, and just being able to navigate with him is is really insightful, really interesting. Obviously Neil's the pro's pro, so he knows exactly what he's doing. But for people who don't know for, you know, people in smaller firms who have never had a case like this, what are some of the pitfalls?
00:02:51:18 - 00:02:54:27
Speaker 2
What are some of the mistakes that they might do early on?
00:02:54:29 - 00:03:21:23
Speaker 1
You know, I think the first thing is to figure out who your client is. And every state is a little different. There's typically two types of cases in a wrongful death case. The first is going to be the beneficiaries, which is typically going to be the children or the parents and the spouse. Now this is state dependent. And why I say this is important because this brings up a lot of things like conflict of interest, also how the money is going to be divided and how you're going to pursue and approach the case.
00:03:21:26 - 00:03:41:07
Speaker 1
So let's say I have a client who their husband was killed, they have three children, but he was also married before and they had a child from that marriage. Or he did. And then he has parents, one who is alive, one who's deceased. And so how do you figure out who is bringing the claim and what they're entitled to?
00:03:41:07 - 00:03:57:06
Speaker 1
So I always first draw a family tree. I find visuals are really helpful for me, especially in these cases. If you do it once, you kind of have it saved and you can always reflect back to it, and then I'll put their name, I'll put their role and I'll just have a nickname for them. I'll say, this is mom, she's a teacher, 58.
00:03:57:06 - 00:04:16:06
Speaker 1
You know, this is estranged girlfriend. They have a two year old. And then the other person that can bring claim or entity is going to be the estate. And that's as if the person had survived and was like their pain and suffering and also the loss of inheritance and those things economic damages from the person that was the died.
00:04:16:08 - 00:04:31:15
Speaker 1
So some states are a little different. They but typically you there can be one on behalf of the estate or behalf on the claimant and beneficiaries. And another question I get a lot of times is how much is each person entitled to. And that's going to be very case specific. And it's actually one of the hardest things to do.
00:04:31:15 - 00:04:49:11
Speaker 1
If you have a case with multiple clients, because you have to be really careful on, you know, representing each equally, if you're representing a bunch and you can run into big troubles both from a malpractice and bar complaint issue, if you have people that can't get along. And also there's a conflict that you can overcome.
00:04:49:14 - 00:04:57:26
Speaker 2
Now, have you ever had a situation where you represented one of the beneficiaries and another attorney represented another one?
00:04:57:28 - 00:05:16:01
Speaker 1
Yeah, I mean, that happens all the time. And sometimes I've been contacted by someone who, let's say it was, they lost their son and they'd been divorced from the other parent, and they initially brought up. Well, maybe you represent my ex-husband as well. And then I found out they hate each other's guts. They don't get along at all.
00:05:16:04 - 00:05:37:14
Speaker 1
And my advice in that situation is to refer them to someone that you can work well with. If they're looking for a lawyer, as opposed to you taking the risk of trying to represent two people that hate each other because it can run to serious issues. When you're trying to decide how to divide the sums. If you're going to do that anyways, make sure you get an agreement between the parties on how they're going to settle the case at the end.
00:05:37:16 - 00:05:57:21
Speaker 1
These are called aggregate settlement agreements in. A big tip in this situation is you want to do that before real money is on the table. It's much easier to get people to agree on a percentage than actual dollars. So if I were over that case and I represent two people, if I get them to agree on a 5050 split at the beginning, the case, that's going to be much easier than if there's $1 million on the table.
00:05:57:24 - 00:06:02:01
Speaker 1
And now it's real money, and they're much harder to get along with in that situation.
00:06:02:03 - 00:06:17:10
Speaker 2
That makes sense. In speaking of real money, I'm not saying it's easy to value, you know, injuries or anything like that, but at least we, you know, when there is a car crash or premises case, we have the medical records. How do you value a wrongful death case?
00:06:17:12 - 00:06:34:16
Speaker 1
Yeah, that is a great question. And it is challenging, but it's definitely doable. You have to start with the baseline of what would a jury give in the same or similar case, and what is the range of outcomes that could happen here. And in a death case, you really starting with what's the story of the client who were their friends, their family?
00:06:34:16 - 00:06:58:25
Speaker 1
What was their life like? The second component you're gonna look at is what did they go through when the incident happened? We had a case where someone was killed and they were drugged for about 15ft under a truck, and they survived for about 15, 20 minutes at the scene. And this is kind of gross. But the defense was arguing they had no conscious pain and suffering because they were knocked out and they didn't feel anything.
00:06:58:27 - 00:07:15:27
Speaker 1
We hired an expert that proved that she did have conscious pain and suffering because the way she was breathing, the eye contact she was making, we used a medical examiner to help us with that because that 15 minutes of knowing that you're not going to make it to the other side, knowing you're never going to see your kids again, choking on your own blood.
00:07:15:27 - 00:07:31:00
Speaker 1
That's really gross stuff. And it's horrific what she went through. And that's an important level of damage to show the jury. And if you don't get that in, that doesn't come in in the case, right? You don't just automatically get that damage. And that can add a lot of money to what your clients can tell your clients and ultimately get.
00:07:31:03 - 00:07:49:21
Speaker 1
But back to the original question how do you vote first? I would look at other verdicts. The second I would look at how many claimants you have, and how good is the claim that that individual person has. If I have someone who is a ten year old child and they lost their father, that case is probably going to be worth more than if it was an adult.
00:07:49:21 - 00:08:11:14
Speaker 1
Let's say a 45 year old child who lost their 75 year old parent. Now, that's not always the case. And these are all generalities. And every jurisdiction's different on how much you can get an individual case. But I always start like, what's the story with them and the person? If you have a case, for example, where there was a deadbeat dad who died and the child is coming to you and they haven't seen them a long time, that damage model can be a little more challenging.
00:08:11:14 - 00:08:34:19
Speaker 1
Now, what we've done in those situations is we have told the story of missed opportunities to rekindle their relationship. Okay. To, you know, there was an opportunity before this terrible thing happened for them to which happens a lot with adults, you know, later on in life. And that was taken away from them. We had a case where this adult, he was by in his early 50s, he died on a construction site.
00:08:34:23 - 00:08:51:23
Speaker 1
And it was really interesting. This is before body cams were really a big deal. Or most people knew they existed. And actually, the police officer on the scene had gone there, and the worker had pointed up to where he felt like he fell right there. And he landed there. And he wasn't wearing this stuff. And it was actually really good for liability in that case.
00:08:51:26 - 00:09:06:24
Speaker 1
But the hard thing on that one was he had not been the best father, and his daughter was like 24 years old, and they just started hanging out with each other again, like a year before this happened. And the defense was making a big deal about this. He went to great dad and there was an acrimonious divorce.
00:09:06:27 - 00:09:12:14
Speaker 2
But we had defense. So actually say this is a tarnished relationship. This was not a good person. Yeah.
00:09:12:14 - 00:09:33:24
Speaker 1
And they're if they're a good defense lawyer they don't say it that aggressively. If they're a bad one you can kind of lure them into that. But they imply that, they'll tell you that in mediation. They'll tell you that in those other situations, but then they'll be more smooth about it at trial. And what they're trying to do is contrast the relationship to what people consider a high quality or a strong relationship, you know, versus, someone who doesn't have a strong relationship.
00:09:33:27 - 00:09:54:19
Speaker 1
But in that instance, we did this really interesting technique called psychodrama with a really great person. Pat Montas, who we've worked with tons of times to help prep witnesses. And she's she's amazing, so gifted, where you go through what the people went through in their memories with the loved one. And we actually had the ex-wife come in and the daughter and we went through when they were at the hospital.
00:09:54:19 - 00:10:12:03
Speaker 1
Now to pull the plug, we went through some of the memories when she was a kid, brought those to life. Because Robert's case is about telling stories about what was and what could have been, and you have to paint a vivid picture for the jury of what that is, and you want them to compare it to their own life or people they know there's lives to show.
00:10:12:03 - 00:10:27:18
Speaker 1
Like, what is this missing hole? You know, every dinner, the person's not there. You know, if they call them every night, they're not going to be there to answer the phone. They're not going to be there for the first wedding. They're not going to be there for, you know, the grandkids being born in those stories are really powerful in deciding what the case is worth.
00:10:27:18 - 00:10:46:25
Speaker 1
And then you want to focus group it with the evidence, and you want to make sure you include the bad stuff on your side as well, because the defense will be smart about how they get things in. And trust me, if they were abusive at all, that's probably going to be coming in. If they you know, cheated on their spouse and you're claiming loss of consortium, you know, that's an issue.
00:10:46:25 - 00:11:02:19
Speaker 1
That's a fair question now because you're bringing that into play. So you want to really think about what the damages you're bringing up. We've had situations where we intentionally did not present the wife's wrongful death claim, because it was really they had a bad relationship with the kids. It was great, and it was going to detract from the overall case.
00:11:02:19 - 00:11:22:21
Speaker 1
The impact was going to happen. And so once I have all that information, I've got the jury verdict from other cases, I've got focus group information, and then I use my own experience to decide what it's worth and make sure you always do a charge. There's a big difference between, a case with 15 lines on the charge and one was like three, you know.
00:11:22:24 - 00:11:41:22
Speaker 2
Going back to the focus groups, I've been a part of three now, and it's always interesting trying to find that happy medium of we want to advocate for our client, but we also need to present all of the bad facts. Yeah. How do you present that in a way that it almost doesn't seem like you're advocating for the defense.
00:11:41:27 - 00:11:55:08
Speaker 2
And I say that half heartedly, jokingly, because the last when we did, the focus group organizer messaged me back and said, hey, it almost seems like you're giving the defense more than you're giving yourself.
00:11:55:08 - 00:12:14:27
Speaker 1
Yeah, well, I think well, one, I think that's important to do in focus groups and we do almost all virtually now. But we were doing a lot in office in person. I would tell them was a little fair, but I don't think it was that bad. I would tell them that I was hired by both sides, that I was a traveler, and I used to travel, travel a ton for my job.
00:12:15:00 - 00:12:33:15
Speaker 1
And I decided to start doing focus groups, so I could spend more time with family. And so, because I've had a lot of cases, the plaintiffs in the fence, trust me, and they brought me this case here today to present to you and my job is to tell both sides of the story of this case. So that's one trick to try to make sure, because even if they know you're on the plaintiff side, they will have by you cause they don't wanna let you down.
00:12:33:22 - 00:12:50:24
Speaker 1
And then I try to think of what are the worst facts for me that are going to come in, and I make sure to include those and any that are borderline, you know, our own facts. I try to make sure I say it very objectively without any sort of spin on whatever I'm trying to say. And I think also videos, pictures are really helpful as well.
00:12:50:27 - 00:13:06:17
Speaker 1
A lot of people make the defense's case way worse than it might be a trial. And you get kind of not great results because it's not helping you. And I would say focus groups the hardest is on valuation. There's some really great focus groups that'll do with really big data site sets. Now I'm blanking on the name.
00:13:06:17 - 00:13:23:07
Speaker 1
I'll put it in the show notes, but there's 2 or 3 that do a great job with that that we've used. And they'll get big data sets of, focus groups like 300 and give you some rough values based on 300 people. And once you get to that number, you can start getting kind of accurate of what a jury might actually give, based on the evidence you have.
00:13:23:13 - 00:13:30:10
Speaker 2
So one that I guess we'll give them the, the free shout out. So shout out to the iPhone storage people I know.
00:13:30:13 - 00:13:33:05
Speaker 1
I believe this one is recorded.
00:13:33:08 - 00:13:39:10
Speaker 2
Fingers crossed. If not, we'll just hang out again. Yeah. The one that we've used recently is a motion track.
00:13:39:10 - 00:13:40:18
Speaker 1
Yeah. That's it. Yeah.
00:13:40:18 - 00:14:01:06
Speaker 2
And they, they gave us so much data and the one that we use prior and I don't I'm not going to besmirch any names here. The things that they would bring us and we just settled that case. But the, the biggest critical fact that they were able to surmise from the actual focus group was that we need jurors who watch the show Blue Bloods.
00:14:01:08 - 00:14:07:07
Speaker 2
Really interesting. That's a crazy, like of all of the hours of this focus group, that was the biggest takeaway.
00:14:07:08 - 00:14:09:07
Speaker 1
I mean, it was there like 12 people that watch the show.
00:14:09:08 - 00:14:27:20
Speaker 2
I guess it was like, I mean, I, I don't even even heard of that show. Yeah. You got to be on CBS. Noted, noted about three times Wednesday, of all things. But, you know, going back to this, how do you obviously, wrongful deaths can be incredibly emotional. Yeah. Especially when you put real money out there. Yeah.
00:14:27:22 - 00:14:33:22
Speaker 2
How do you navigate, you know, the the intense family relationships through all this?
00:14:33:25 - 00:14:49:05
Speaker 1
You have to be have a lot of emotional intelligence. First know how to read a room and you need to decide if these people should be together or not when you're handling the case. I a lot of times will not have the folks together for mediating. Because if there's tension at all, you know, have them separately.
00:14:49:06 - 00:15:11:22
Speaker 1
The other thing is I try to get them to work through the emotions as early as possible. In the case, as far as their problems with each other, you know, if it's siblings with the parent and then you really want to make sure if you're representing multiple people that you had that ever get. So an agreement, you talk about that it's difficult if the relationships are close to pass, like what's more or less it worth.
00:15:11:24 - 00:15:28:12
Speaker 1
I also have a general rule. If I'm representing, a child like a small child in a death case, and I'm also representing the grandparents, the person that's deceased, I won't represent the grandparents unless they are up front going to give a lot a big majority to the small child. And I've had situations where it's surprising where they wanted an equal share.
00:15:28:12 - 00:15:54:09
Speaker 1
I'm like, this is AA5 year old. You're you know, your relationship was important to this child is not going to have a dad forever, you know, and so use common sense. Always bring the temperature down. Be very careful of the conflict rules because remember, you have to share in the evidence given to each other. You can't hold back if representing both people in a lot of times it's a lot of talking, you know, a lot of sitting there and listening, letting people be angry, be mad, and you have to be okay with just kind of absorbing that.
00:15:54:09 - 00:16:10:25
Speaker 1
And then helping them get through it. I also, in their cases, especially involving children, I try not to give as many updates to the client as I do in other cases because it's just a reminder. It's just like a painful point sometimes. They want a lot of updates. I actually find a lot of times they just they don't want as many as in other cases.
00:16:10:26 - 00:16:16:27
Speaker 1
Maybe I'll call like a friend of theirs too. There'll be a next round in the case because those are just so emotionally charged and so difficult.
00:16:17:00 - 00:16:26:09
Speaker 2
That makes sense. There's emotions, but there's also a lot of evidence for these cases. So what from the jump is important to do to make sure it doesn't come back to bite you?
00:16:26:12 - 00:16:50:13
Speaker 1
First what I said before, do the family tree. And I see people miss this all the time. Get birth certificates, death certificates, marriage certificates, divorce decrees. There's so many times when people think they're divorced or not. Yeah, they don't think they're married. They are. I mean, we had this crazy case when I first started practicing and we got hired by this grandmother who had a five year old child, and it was a relatively young grandmother.
00:16:50:13 - 00:17:03:29
Speaker 1
The son had a child at like 22 or something, and he lived with his mom, never married. And the, you know, the child's mother, hired another lawyer, but she didn't have a claim because they're not married. Right. Or she was claiming that they were common law.
00:17:04:02 - 00:17:05:20
Speaker 2
I was about to bring that up. Yeah.
00:17:05:22 - 00:17:24:15
Speaker 1
And in Texas, to become a married witch, almost nobody knows this. And it's kind of crazy. You only have to have three things. One, you have to cohabitate. You have to agree to be husband and wife, and you have to represent to others in writing that you're married. So if you file joint taxes, if you tell people that you're married, that can be married just as powerful as, like you went to the courthouse.
00:17:24:18 - 00:17:42:20
Speaker 1
Yeah. And so she was claiming that he called her his old lady, and that meant that they were married. Now, this brings up such a difficult issue, right? You don't want to be fighting about that in front of the jury. Think about what that does to the value case. Like now everyone looks greedy. They look terrible. Like grandma's arguing with, you know, maybe mom of the child.
00:17:42:20 - 00:18:01:27
Speaker 1
And so that was a really, really difficult situation to navigate. We were able to handle it and get it kicked out in a family law court. That way it couldn't come in in the personal injury case. For some reason. They never told the defense about their claim. I was able to convince her lawyer just to go through me and not bring it up so it would hurt the case, and they agreed to do that, which helped a lot.
00:18:02:03 - 00:18:20:01
Speaker 1
The other thing is, we've had situations where the defense tried to get a DNA test to verify that a child was the person's. I would not agree to that if someone's already been adjudicated as the parent, because under most states laws that even if it did come back as a different genetic, that there's still the father or mother, mother would know.
00:18:20:01 - 00:18:38:04
Speaker 1
But father, under all legal circumstances. It's a weird wrinkle, but get the birth, death, divorce. I always get the divorce certificates. In any big case I have, even if it's not a death case, because there's so much stuff in there that they may claim abuse. They may claim, you know, because people get really angry during divorces.
00:18:38:04 - 00:18:39:23
Speaker 1
And the other side will find that stuff.
00:18:39:28 - 00:18:40:15
Speaker 2
Right?
00:18:40:17 - 00:19:02:28
Speaker 1
The other thing is get the Emmys report, medical examiner's report that will have the cause of death. You may sometimes hire your own M.E. to do your own examination. That's where that cause you have to really be on top of the case fast. I've only done that one time, but most of the time the M.E. will say like, what was the cause of death and have some indications about what happened, especially if it's, a wrongful death and someone died from a natural causes.
00:19:03:00 - 00:19:28:10
Speaker 1
Some other things to do. Go to their house to get evidence of what their life was like. Pictures, videos, talk to friends. That can be very powerful for those cases. Even going if you go to the funeral or if someone if they had the funeral. As for the videos that they put up, they usually play videos at funerals, like memories of the person get those is a great the to show what the person was like, what they went through, those sorts of things.
00:19:28:13 - 00:19:34:28
Speaker 2
What about, you know, critical evidence to the case if it is a wrongful death, a crash or anything of that nature?
00:19:34:28 - 00:19:57:15
Speaker 1
Well, one, figuring out what the mechanism of the death was, that can be really important. And then two so had a case where it was a fire death case, and it came down to how the person, how the fire started and how they died. And so we went out to the scene to see actually where his body had been, had the pictures were gruesome because there was pictures of him, like reaching for the doorknob in his like charred body.
00:19:57:19 - 00:20:23:18
Speaker 1
Wow. But knowing like where the set up was, like where the fire would have started. I like to know everything surrounding the incident itself and try to see if I can recreate it in my own head. Like, where did it start? What occurred? What happened next? We've done it in a lot of industrial accident cases. And that, again, the mechanism of injury is really important because if it's a gas explosion, what was at the gas pool and we get to the wall, was it a burn that also can affect your damages?
00:20:23:18 - 00:20:42:25
Speaker 1
Because what did they go through prior to dying? You know, we've done accidental shooting cases in you watch the movies and it looks like gunshots don't really hard to get shot and kind of just die. But actually they're very painful. You know, if a bullet goes into your chest, it goes into the lung, goes into the cavity, blood is coming in, you're actually choking to death.
00:20:42:27 - 00:20:59:03
Speaker 1
And that's how you die. And that's horrific. So that evidence of what happened can be really important as well. And if it's a truck or a car wreck, the seatbelt usage, the airbag don't fall for this trick. The defense a lot of times will not bring this stuff up and say, I don't, you know, give me a liability case.
00:20:59:03 - 00:21:14:27
Speaker 1
Well, agree. You know, liability clear. But then get to trial and say they'll say well maybe 9010, maybe 8020, maybe 6040 is whatever the jury wants to do is fair. And they'll bring up stuff that you didn't think about because you thought it was a guaranteed liability case instead of plugging those holes. So don't fall for that.
00:21:15:00 - 00:21:23:20
Speaker 2
Okay. In terms of the defense stipulating to liability, do you just agree to that or is that something you would fight?
00:21:23:22 - 00:21:40:17
Speaker 1
Well, you can't necessarily fight the stipulation of liability if they want to agree to it. But what you can do is get in the evidence. You want to get in through other mechanisms. One punitive damages. If that's an issue in the case, you can bring in there. Also, you can bring in through the non economics of the case itself.
00:21:40:24 - 00:21:58:27
Speaker 1
So if it's a drunk driver and they hit and hurt or killed someone, the fear of being on the road, given there might be other drunk drivers out there can be part of the mental anguish damage. Also telling the story of what happened is important to explain the damage model. But that's a common trick I see when it's a clear liability case.
00:21:58:29 - 00:22:16:06
Speaker 1
Also, you want to make sure you brought in the right people. So if it's negligent trainee negligent supervision, they typically will not concede to that. Right. So those other claims can be helpful for getting the evidence that shows the full harm because you have to do that to get full justice for your client. Like if things don't happen in a vacuum, right?
00:22:16:06 - 00:22:21:04
Speaker 1
The jury needs to know what occurred to really fully adjudicate the case.
00:22:21:07 - 00:22:33:26
Speaker 2
Now, let's say everything went swimmingly. The defense says, here's all the money. We're good to go. Have you ever had or seen situations after settlement where you're like, oh no, this went wrong.
00:22:33:28 - 00:22:51:02
Speaker 1
And so many times not really went wrong stuff we anticipated, but I knew was going to be a problem. So one example is you cannot find one of the beneficiaries. That happens a lot. So like you've got everybody lined up. The defense wants a full and final release and someone's missing and no one knows where they are.
00:22:51:04 - 00:23:07:13
Speaker 1
Sometimes you can get the defense to carve out a portion for that person and just set it aside for them. If they were show up. Most of the time, they want you to indemnify that person for future claims. So sometimes we'll just say no and keep pushing the case to get closer to trial. And they'll they'll cave sometimes.
00:23:07:15 - 00:23:24:23
Speaker 1
Sometimes we will figure out a way to craft a waiver that protects our clients, but doesn't indemnify them against this person's future claim. Sometimes what its actual limitations were not. If it's close on that, that way the claim is extinguished. You have to worry about it. That's probably the most common one. The other is you need to make sure how you navigate subrogation issues.
00:23:25:00 - 00:23:45:06
Speaker 1
If you're not representing the estate, you do not have to account for leaks in Texas. This is my own personal opinion. So check your own statutes, all the stuff. Check your own statutes. But you don't have to handle the links because you don't represent the person that the lead is attached to. Right? So but if you do represent the estate, all of a sudden you do have to deal with it.
00:23:45:06 - 00:23:57:22
Speaker 1
And you may have screwed your client out of a lot of money, because you can still release all of the claims through the wrongful death beneficiaries if they're actually the, heirs of the estate, and they can extinguish everything with them to deal with the legal issues that you might have to otherwise.
00:23:57:25 - 00:24:00:14
Speaker 2
Like the, the explicit this is not legal advice.
00:24:00:18 - 00:24:05:08
Speaker 1
I you did lawyers, right? Yes. It's not legal advice, anyone. This is barely advice.
00:24:05:11 - 00:24:20:06
Speaker 2
So, I mean, in terms of attorneys who are out there trying to to help out families who are going through this, you know, what is kind of the big three takeaways that they should learn to not mess up?
00:24:20:09 - 00:24:26:17
Speaker 1
Yeah. Well, to me, and I think this is Max's way of saying he's done here, he's like, I gotta get back to work.
00:24:26:20 - 00:24:26:23
Speaker 2
You.
00:24:26:23 - 00:24:43:23
Speaker 1
Keep me here till, like, eight every night. You make me, like, sit in this like, guest room. So I would say the three big takeaways. I would say, number one, know you represent. Get the right documentation. That is key. If you don't know who you represent, you're like, you're flying blind to always do a jury charge. Again, these are all simple things.
00:24:43:23 - 00:25:01:23
Speaker 1
But like if you have 15 or 30 blanks and you send to the defense like, hey, they have 30 blanks to fill. And if they just do 130 times, that's $3 million. If they do, you know, a million, that's $30 million. And once people start filling in blanks, it's easy, right. And number three, think through the conflict issues.
00:25:01:23 - 00:25:19:02
Speaker 1
And really I'm going to add a fourth, with all the different folks you're representing. And don't be greedy that it can really kill you and you can get in trouble, get a bar complaint, get sued. And it's it's not worth it. There'll be another case. And I'd say the fourth is get the client's story. You really to maximize value, you've got to tell a story.
00:25:19:02 - 00:25:38:23
Speaker 1
Don't give up. If you at first you don't think they had the best slide. Everyone has a story to tell. It's either about the past or it's about future. Like lost opportunities. They would have turned their life. They were an alcoholic, but you know, they wanted to turn life around. They had hopes to turn their life around. They were a high school dropout, but they had a dream of being a craftsman.
00:25:38:23 - 00:25:46:14
Speaker 1
They were going to get there someday. And you have to tell that story through people and through pictures and through words to really make the most of these cases.
00:25:46:20 - 00:25:53:28
Speaker 2
There was a great quote that came out of Troy last year was A lot of jury or a lot of trial is just competitive storytelling.
00:25:53:28 - 00:26:13:19
Speaker 1
Yeah, I agree 100%. And who tells the best story wins. And you actually don't have to be the most, I know, charismatic. I mean, you can be relatively not charismatic and tell a beautiful, powerful story through pictures, through words and let that do the talking for you and just getting massive outcomes. Well, this has been great, man. I appreciate it.
00:26:13:19 - 00:26:13:28
Speaker 1
Always.
00:26:13:28 - 00:26:14:10
Speaker 2
Pleasure.
00:26:14:12 - 00:26:28:29
Speaker 1
I was your pleasure, sir. And, till next time. Thanks.