General Damages

  • 07 July, 2022
  • 66 MB
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How do you come up with a number that suits the pain and suffering for a victim of catastrophic injury and all the million-dollar moments they will miss out on in life? On this episode of the Justice Team Podcast, Bob Simon welcomes Bibi Fell, Lourdes DeArmas and Matthew Clandenin for an honest conversation about conveying general damages from intake to closing arguments.

Bibi Fell, Fell Law

Lourdes DeArmas, Chang | Klein, LLP

Matthew Clandenin, The Clandenin Firm


Transcript

Speaker 1: (singing)

Bob Simon: That [00:01:00] is a Sweet Trial of Mine by one of the Justice Team members. And I forget who sings that one, but it’s pretty pathetically bad, but we’ll let you see all the lyrics. We’ll probably run the whole song at the end of this one, but it’s pretty good. Well, welcome to this edition of the Justice Team Podcast. Today, we’re talking about general damages. And a lot of these cases, the biggest verdict numbers that we see are solely general damages. [00:01:30] So today on our panel, we have some rockstar trial lawyers that try cases all over the place, have a good pulse for what the jury is thinking, seeing, hearing, smelling, which is probably the number one attribute. You ever hear that smell is the number one thing that people respond to. Lourdes, did you ever hear that?

Lourdes DeArmas: No.

Bibi Fell: I respond to smell.

Bob Simon: Yeah. If you go back to the hospital, that smell of like Band-Aids, it takes people right there, right?

Lourdes DeArmas: Wet concrete.

Bob Simon: That’s free advice for you guys. So first, immediately, far to my right, if you’re watching on YouTube, [00:02:00] you could see the wonderful Bibi Fell, who is rockstar trial lawyer out of San Diego but practices nationally. Bibi, why don’t you introduce yourself and say what’s up?

Bibi Fell: Bibi Fell, San Diego. I love trying cases. I wanted to be a trial lawyer since I was four years old, so I’m living the dream.

Bob Simon: Well, mahalo.

Bibi Fell: Oh, yes.

Bob Simon: Aloha.

Bibi Fell: Aloha.

Bob Simon: So Bibi’s also, I think, the only one up here that’s gotten a nine-figure verdict out of all of us, unless I know something about you guys I don’t.

Lourdes DeArmas: Nope.

Matthew Clenden…: Nope.

Bob Simon: And to [00:02:30] my right is Lourdes DeArmas, who is a trial lawyer that practices with the firm of Chang Klein. Lourdes, thank you for coming here today.

Lourdes DeArmas: Thank you for having me.

Bob Simon: I can’t wait to talk to you about some-

Lourdes DeArmas: What an honor.

Bob Simon: Yeah, right. And then to my left, of course, Matt Clendenin, who I affectionally dubbed the plaintiff whisperer. And actually, the day we’re filming this day before, he spent a whole day with one of our clients. He was a little bit of a problem to make sure she was able to share depositions going on right now, so fingers crossed that she’s doing everything he told her to do. So Matt Clendenin out of San [00:03:00] Diego and he’s tried several cases during COVID. So how many cases have you tried during the shutdown?

Matthew Clenden…: Three. Got three verdicts since pandemic, so not very big ones but still trying them.

Bob Simon: Yeah, you got to take them to the mat. So we’re talking about general damage, so I’m going to start out… I’m going to start with you, Matt, because whenever we’re talking about general damages, a lot of these things happen before you get into the courtroom, right?

Matthew Clenden…: Yeah.

Bob Simon: So tell me a little bit about your process and developing damages with the plaintiff in the story before you even get in there, and we talked about even the [00:03:30] deposition, what’s that like?

Matthew Clenden…: Yeah. I mean, we meet with our clients and we’re thinking about what are the big ticket items that you want to show, right? I mean, how many lawyers have heard like, “Hey, I’m writing my closing statement or closing arguments as you’re doing intake, right? You’re thinking about that. And so when it comes to deposition, I think that’s the perfect time to really… At least for me, there’s written discovery, you’ve got intake, but your depositions really where you first go the deep dive with your client. And so I’ve got [00:04:00] a system that I do, it’s three sessions. The client gets homework every session, and one of the big parts of that is working up their general damages.

Bob Simon: Yeah. I mean, where did you learn this process?

Matthew Clenden…: So a little bit of my own kind of just general experience. One of the former firms I was at was a really big proponent of the Reptile and Keenan Trial Institute, and so part of that is I learned a lot from them.

Bob Simon: So actually, we had David Ball in one of our episodes and one of our junior trial lawyers [00:04:30] wore a lizard costume the entire… That’s true if you look on our YouTube page.

Bibi Fell: That’s awesome.

Bob Simon: It’s pretty funny. Blake Burtchaell. Blake, if you’re out there, that was hilarious.

Matthew Clenden…: Is he trying to make it into the MILs, right? That’ll be exhibit four on the 30 page, anti-reptile MIL is the lawyer in the lizard costume.

Bob Simon: They’re creative enough. I always asked the judge, look, I’m not going to pull a lizard out of a frog. So Bibi, for you, where does the process start? Because I know at your firm and at Athea you guys are big on general damages, I mean, you guys get some huge results. So what is your process [00:05:00] like even before we get to the deposition in discovery [inaudible 00:05:03]?

Bibi Fell: Yeah, so it really does start at intake, but I try not to overwhelm the client with questions. I mean, they tend to be going through a lot at the time that they call me. So I’m mostly taking things in, preparing for what I call the big visit, and I will set aside an entire day, and very early on in the case and go to my client’s house and I warn them-

Bob Simon: And why do you go to their home?

Bibi Fell: Because people are not great about talking about themselves, [00:05:30] especially men. I’ll talk to some of my male clients-

Bob Simon: You obviously never met a trial lawyer before as a man.

Bibi Fell: No. They talk a lot, but they’re not great about it.

Bob Simon: Lot of quantity, not a lot of quality there.

Bibi Fell: Right? So-

Lourdes DeArmas: Because they’re men, they’re not injured.

Bibi Fell: Right.

Lourdes DeArmas: Yeah.

Bibi Fell: Yeah, I asked them, “Do you have any pictures of yourself?” Well, no. They don’t have any pictures of themselves. They all say that. No, I don’t really take pictures. Okay. If you ask them for the information that you need, it’s very unlikely to get it. You’ll barely [00:06:00] scratch the surface. So I come in and I’m like, “I am going to be very rude in your house. I’m coming in. I will take off my shoes, but I am going to go through every room in your house and I’m going to pull out photo albums and we’re going to turn on your TV and we’re going to pop in old VHSs. I’m coming. Get ready.”

Bob Simon: And Lourdes, you chimed in about that machismo feel so-

Lourdes DeArmas: Oh, yeah.

Bob Simon: … being a Cubana, right?

Lourdes DeArmas: Latinos.

Bob Simon: Latinos. So I represent a lot of Latinos [00:06:30] and we find a lot that same thing is I don’t have photos of myself. I’m tough. It’s all good. How do you break that down?

Lourdes DeArmas: And it’s also the worker, right? And when they lose their job, they’ve lost part of their identity because they don’t know what to do, because they’re the breadwinner of the family. So where’s their role when they’re sitting at home? And you just have to sit there and talk to them, and like Bibi said and I think Matt too, it’s not just [00:07:00] one session. It’s a couple of sessions because in the first one, they’re not going to tell you. We had a trial right before COVID with a Latino man that lost his job in a car accident, and he didn’t know who he was. When you ask him, “No, everything’s fine. Everything’s fine.” But when you dig deep down, everything’s not fine, but you don’t get that… I don’t get that from him. I got it from his family members, and that’s where I usually tend to go. Your client can only give you so much. The family members are the ones that have the story.

Bob Simon: And when do you disclose [00:07:30] this stuff like the damages witnesses, the family members, any stuff you got from the home visit? Is this stuff that you last five days before trial, you slide in the exhibit binder, how’s that live?

Lourdes DeArmas: No. I usually get cases and I’m sure you do too close to trial. I wish I could get some cases at intake. We don’t generally get that. We get them referred out. Sometimes the plaintiff’s attorney… I mean, the plaintiff’s depos already been taken, but as soon as we start collecting the information, I give it out. I supplement as [00:08:00] I go, amend or even just do a cover letter here. I’m planning on using this for trial. Never hold onto pictures, never hold on any witnesses because you’re not going to get them in trial. And if you think you can come in and all of a sudden there’s a photograph of them vacation 10 years ago, that’s not coming in.

Bob Simon: Yeah. And we don’t want to ever risk lack of disclosure for being excluded, right?

Lourdes DeArmas: Right.

Bob Simon: For stupid reason. So Matt, what are things that you look for? Like yesterday, for instance, you had a very proud worker [00:08:30] that didn’t want to open up. I mean, do you have different playbooks you have to use to have people open up in different ways, depending on their backgrounds?

Matthew Clenden…: Yeah, so you got to go with the friends and family for damage witnesses. But when I’m working specifically with a plaintiff for their depo, they always want to come with facts, right? I can’t walk my dog anymore or I have a hard time doing laundry, but that fact isn’t worth anything. So the first thing I do is I give him homework to think of stories that tell [00:09:00] those facts. So instead of “I can’t walk my dog anymore”, your client I was working with yesterday, she actually had to give up her family dog because she couldn’t walk the dog anymore.
It’s like, “All right. Tell me about the dog Chico, right?” And so you’re like, “Tell me where’s Chico’s favorite dog park. What’d you do with Chico?” Now, you’ve got a story, but you’re still not there yet because you have to connect the story because not everyone’s had to do that. So even though you go, “Oh, my gosh. That’s tough.” [00:09:30] The jury and other folks aren’t necessarily connecting with it yet. Maybe they are, right? If you had a dog, like I saw Bibi go, maybe you have a dog, you think about that, but some people have it, so then you have to have them build what they’re feeling.

Bob Simon: How are you building that story for 12 strangers that might be a year down the line from that meeting that you’re having?

Matthew Clenden…: So the witness prep for the depo is direct motivation for trial. So it goes [00:10:00] like the continuity, but I’m building it earlier during the plaintiff’s depo, but the final step is you have to tell them they have to connect the fact to the story to how it makes them feel to the emotion. “So I was depressed and desperate that I had to give up my family member Chico,” right? Everyone’s been through that, that feeling. So you have to go from the fact to the story. So I always coach clients during witness prep, the insurance lawyer’s never going to ask you, “How does that make you feel,” after you tell them a fact or a story. So I would say, “Imagine they [00:10:30] ask you that after every time you talk about something you’re going through and then tell them.” You have to tell them.

Bob Simon: Because at the time they’re taking the deposition, because a lot of cases settle. I mean, everybody here tries a lot of cases, but most cases do settle. I mean, the person you’re speaking to through the deposition is the adjuster defense lawyer, mostly the adjuster.

Lourdes DeArmas: Right.

Bob Simon: So I mean, you got to think about what they want to hear and have your case resolved at that time. So Bibi, when you actually get to in front of that jury, in front of that audience of 12 or eight of your federal court, wherever, [00:11:00] do you ever do a little bit of a pivot on your damages explanation in front of, depending on who that audience is, after researching those juries, jurors?

Bibi Fell: Oh, yeah. And one of the things I’m talking to them about in voir dire… They see, for me, voir dire isn’t just jury selection or jury deselection, it’s how do I communicate my case to you, 12. I mean, that’s the opportunity that it is. So when I’m talking to them about what’s the most important relationship in your life, and they talk to me about this [00:11:30] special person and what is it, what’s your number one memory about that person. If you could go back in time, what’s the one point in time that you’d want to go back to with that special person, if it’s like a death case. Well, now, I’ve got ammunition. And in most cases, there are those moments of time that my client can bring out or other people can bring out in testimony. So I’m not talking to people who have never owned a dog, right? I might shift the focus of those moments [00:12:00] because life is just this collection of moments. I might choose different moments that I bring out in trial based on what the jury has told me is important to them.

Bob Simon: Yeah. And Lourdes, you do a lot and teach a lot about jury selection, deselection, whatever you want to call it. How do you work in this theme about damages while you’re doing that?

Lourdes DeArmas: Well, usually, I get the jurors to start talking about their own lives, and a lot of them will bring up the injuries that they have. And then when you’re talking to them about [00:12:30] the injuries that they have, then you ask them, “Do you have any pets?” If that’s the main issue to your client without saying my client has a pet, just, “Do you have any pets? And how did that affect the way you were able to take care of your pet? Is that pet like a child to you?” So then you’re starting to get the jurors to think about that emotional connection. And by the time your client brings out that story, they already have it.

Bob Simon: We have a lot of cases that have like medical bills that are [00:13:00] injected to past and future, and the other side wants to argue they’re inflated. It’s ridiculous. Do you ever waive those medical bills just to talk about these general stories and pick a jury that way?

Lourdes DeArmas: Absolutely. Generally, depends on the value of the case. If the bills are under a hundred thousand, I waive them. There is no reason if you are trying a big case that you’re going…

Bob Simon: Anchor it.

Lourdes DeArmas: Yeah. And then spend time arguing about nickel and dime-

Bob Simon: Losing credibility on the [inaudible 00:13:30].

Lourdes DeArmas: [00:13:30] Yeah. And I’ll just wave that and then just go straight to the general damages. But when you’re talking to a jury about those bills, if you have significant bills and they’re going to nickel and dime you, you talk to the potential jurors that have been injured that have had cases, “How was it when you went to the doctor? Did you use your insurance? How was that? Did you get a bill? How did that make you feel?” And then they start bringing out the issues that the judge doesn’t let you talk about, if you get them to talk about it, right?

Bob Simon: As judges, [00:14:00] we were picking a jury in Iowa recently. And the judge was like, “You’re not allowed to say a number in opening or the jury, but if a juror says it, you can go ahead and carry on,” and they always say it [inaudible 00:14:10]-

Bibi Fell: You’re like, “Pick a number between one and 10 million.”

Lourdes DeArmas: Right. Yeah, and one of the things that I think that I try to do, and I get people that I talk to about juries is get the jurors to talk more. If you’re speaking more than the jurors, you’re not doing your job. So ask them, and if there’s any dead pan, where no one’s saying anything, then go [00:14:30] back, “So Mr. Smith, you said you have two kids. Tell me about them,” and then you get them comfortable again, before you ask the questions about what if you lose your house because you can’t pay for the medical bills, and then you get their opinions that way to keep them talking.

Bob Simon: So another thing is when I have cases, depending on the venue, sometimes I’ll ask different types of questions to the jurors. I found generally more conservative issues. They want to more punish a crime that has been done, figure out what that crime is, [00:15:00] right? So I might pick a jury different way depending on that, but I knew one case where I was almost absurd. We were only be discussing general damage in the case. Defense had a whole bunch of shit they want to talk about, who cares? We’re going to get there. So I went through and asked every juror, “What are your goals in life? And what are your passions? What do you look for during the weekend?”
And we just had a conversation about that and it was a leading because I asked one of the defense experts when he was up there. Well, he was valedictorian in his medical school, wanted to do all this, and here he was, just testifying against people [00:15:30] for 20 years. And when I asked him, “What were your passions and goals when you were in medical school?” I mean, you could hear a pin drop and the jury hated that person like ultimate betrayal. But Bibi, when you’re in there and you think you’re picking a jury just for general damages, how do you get this jury to emotionally open up to you in your case?

Bibi Fell: I listen to them. I mean, I think that’s the biggest thing we do as lawyers. A lot of people think all lawyers get up there and it’s about them. And they’re putting on this show. I think the best lawyers [00:16:00] spend a heck of a lot more time listening. And how much more interested in me are you if I have already communicated to you that I’m very interested in you.

Bob Simon: Correct.

Bibi Fell: Right? And we want to build an environment where the people in the courtroom, the people on my jury are interested in the other people there. So we’re going to care about each other’s stories and it’s not until you make somebody else feel comfortable like they can let their guard down, that they’re willing to let somebody else’s story and actually affect [00:16:30] them.

Bob Simon: Wow. So do you have… I’ve seen lawyers make the mistake, the nonverbal things that you’re doing, ask a question to a juror, what do you do when they are responding to your question?

Bibi Fell: I’m looking at them. I’m nodding along. I’m listening. I’m reacting humanly. I mean, if they tell me something sad, I have a genuinely sad reaction. If they tell me something surprising, I have a genuinely surprised reaction. If they say something funny, I giggle a little bit. I think we have to [00:17:00] step away from this formula that we think lawyers should do 1, 2, 3, 4, 5, 6, 7, 8, 9, 10. And then that will make a good lawyer, which will make for a good case and a good verdict, and we just have to go back to being people.

Bob Simon: People.

Matthew Clenden…: In my last trial, the defense lawyer during jury selection was asking some question and a juror told them that their mother had died. I forget exactly what the question was. And the defense lawyer kind of got this look, Bibi, and then said, “And so will you be a fair and impartial juror in this trial?” [00:17:30] And you’re like, “You just have to…” If they had just reacted humanly, that defense lawyer could have connected with the panel, but they didn’t. So I like that story because I just went through that.

Bob Simon: Yeah. And a lot of people lose sight that, at the end of the day, lawyers… Whatever we’re doing, we’re almost salespeople. It’s a dirty word. People don’t want to talk about, “Oh, you’re a salesperson.” Well, you kind of are. I mean, you’re selling a product to 12 strangers and you want to kind of warm them up to the product that you’re selling. Sometimes it’s general damage. Sometimes it’s a product liability, whatever the case may be. But Matt, [00:18:00] whenever you’re getting in there with the clients and you’re in their home, are you looking to take any type of photographs yourself to help tell their story while you’re physically in their home?

Matthew Clenden…: Maybe I should, that’s something I don’t do. I obviously want all of their stuff, but when I’m there experiencing it, I don’t like to be behind the lens. I just want to-

Bob Simon: Oh, I love it myself when they’re taking all kind of photos. Bibi, how about you? Are you taking photos in their house?

Bibi Fell: I’m taking so many photos and I try to get them [inaudible 00:18:27] when they’re not looking, and then I get caught and I’m like, “Oh.”

Bob Simon: But-

Matthew Clenden…: [00:18:30] So you just use them for yourselves?

Bob Simon: Yeah, just for our private stash. No, I use it in the case because… So I teach it at our firm. I was like, “Everybody, you have to meet with the client. When we get the case, go in their home and then figure out what I call the hook.” Figure out what makes an emotional attachment for you was something the story you can get behind, which most people get behind. We have one girl that was dealing with infertility due to her shattered hip. And her OBGYN told her she probably never carry again. And we went to her house on Christmas and she had Christmas cards taped [00:19:00] there, all like family members with their kids.
And she didn’t think she would just give… I took a photo of it and I was like, “How does that make you feel?” And she started crying. We would’ve never gotten that, had I not gone to her home to take that photo. I go at their medicine cabinets, even though I’m told not to, this is… Oh, come on. I’m calling this the Bibi rule. I open it up. Mountains of pain medication and stuff, and that was one of my biggest verdicts, the jury told me it was because of that photo, they had made it real for them. But you-

Bibi Fell: You know one thing I started doing that [00:19:30] I think really works is get to the client really early and give them a bag or a box, and that’s where they’re supposed to throw all their discarded pain medications because if they just talk about the pain medications they’ve been taking for the past three years, it doesn’t connect. It’s hard to imagine. But if you come in with a big box or multiple bags and you actually dump that out on the floor in the courtroom, they can see all these little bottles. That’s how you take a fact and make it into something with impact.

Bob Simon: [00:20:00] Yeah. And how about photos, imagery that you use, Lourdes, to help either pivot to a different story for your plaintiff or the damages witness? What kind of stuff are you looking for?

Lourdes DeArmas: Well, one of the things that came to mind when you were talking about that is not only pictures, but I had a client once that had a bad fracture of her ankle. It’s called the calcaneus fracture, that is incredibly painful. There’s no real cure, especially if they don’t put the bolts in the right way. You get necrosis, and I wanted to see… She was talking about how she set up [00:20:30] a makeshift closet in her bathroom where she would take her medication when she got out of bed, then she would drag her leg behind her. She would sit on the toilet to get dressed. I wanted to see what that process was. So even just seeing her going through, lay down in bed, and I know it’s like playing make believe, but she got in bed. Then she went through the whole process and then I could visualize it and then explain it to a jury, especially in closing when you’re trying to give them that imagery [00:21:00] of her talking. But photographs are very important, I don’t take pictures and maybe now I’m going to.

Bob Simon: Well, yeah [inaudible 00:21:06].

Lourdes DeArmas: Because I always thought… I’m very literal and I’m very rule-based. So I’m like, “I can’t testify and lay foundation to this. How am I going to get these in?” But I mean, I know that there’s a process, but that’s why I don’t take pictures, but I take pictures that they already have and try to incorporate them. I had a client once that she had early… I did it with Ashley. She had early CRPS in both hands and Christmas was [00:21:30] very important to her. So we got pictures from her decorating the Christmas tree that now she can’t, right? So then there was the picture of the way she decorated before and then her daughter’s decorating it after. And she had like a visceral reaction to it when she saw because she could no longer do it, and her daughters quite can’t do it the way she likes to do it. So just having that story come out during trial was very effective, I think.

Bob Simon: Yeah. Now, let’s take a quick pivot and talk about how you ask for the money. [00:22:00] Will you get there in closing… I like to get the number out in jury selection, but you [inaudible 00:22:04].

Lourdes DeArmas: I do too.

Matthew Clenden…: Yup.

Bob Simon: But the jury’s going to wait for you if you gain credibility in closing to tell them how much you think it’s worth for pain, suffering, all that stuff. Bibi, what’s your formula? Do you do per diem? Do you give a number? Just break it down for the listeners how you do this.

Bibi Fell: I don’t have a single formula. I have multiple different formulas, and I come up with the number kind of based on my gut and what I feel because I do feel. I have to truly believe it, [00:22:30] right? If I hesitate to give them that number, then I know I’m not asking for the right number. I need to be able to firmly believe that number. And so I come up with a number first and then I go, “Okay, how am I going to get there?” And sometimes if you have a lot of economics, you can say something like, “Hey, this is only three times the economic damages.” I don’t know why people think it’s a rule, but they do think it’s a rule. So as soon as you say that, like my experiences, that after [00:23:00] when I talk to juries, they’re like, “Oh, yeah. I mean, that’s what it’s supposed to be, right? Three times economic damages,” and they just give you that number.

Bob Simon: There’s some case law in some jurisdictions that say you can’t tie it to the economics.

Lourdes DeArmas: Right.

Bob Simon: So the creative way you just say, “A woman’s worth more than a medical bill and these are the medical bills.”

Bibi Fell: Right.

Bob Simon: They’re thinking that process anyway.

Bibi Fell: And so the other thing… I mean, the other thing I’ll use is kind of that argument is like, “Well, she would 10 times rather be the doctor than the patient on that table,” right? So now, I’ve made [00:23:30] an argument for 10 times. Sometimes I use the moments they’re going to miss, million-dollar moment. The wedding that they’re going to miss. Well, that one moment. Would they pay a million dollars to have that moment?

Bob Simon: Yes. So when you’re giving that argument to the jury, do you have a graphic that you’re using? Do you have a timeline to go over those million-dollar moments?

Bibi Fell: No. I might show a picture like a stock photo if I want to capture an image, I might show a picture of a family member getting married or a picture of [00:24:00] a wedding dress, mom’s wedding dress, or something like that, but usually, I’m just talking to them.

Bob Simon: Have you ever done the deleting them from the photos, the family photos? You ever-

Bibi Fell: I’ve not done that.

Lourdes DeArmas: I like that. Wow.

Bibi Fell: I have not done that.

Bob Simon: I’ve done the… You put up a photo of the family photo or them with their son, if they’re a single parent or daughter, and you say… Machiavelli once said, “You can only injure part of a man. But if you injure a part of a man, you injure the whole thing,” and you start clicking [00:24:30] and the person disappears from the photo. And it could be at Christmas, which it could be anything. And then what I usually do in rebuttal is bring them back and power the jury. They have the ability to bring them back. But juries now, they have a very short window of attention spans.

Bibi Fell: They do.

Bob Simon: They need to have a lot of visual stuff. So Matt, what do you do… But Bibi, do you use any type of “This is pain. It’s worth this much per hour, minimum wage,” or just the number?

Bibi Fell: Sometimes. If that’s the only way I can get to my number, I’ll use a per diem or I’ll use minimum wage or I’ll use the salary that they were making before [00:25:00] the injury. I’m basically hunting for numbers to find a way to justify-

Bob Simon: Interesting.

Bibi Fell: … what my ultimate number is.

Matthew Clenden…: And I was going to latch out of that because the last two trials I’ve had have been missed cases, real whiplash, super small damaged missed cases. And I normally don’t like per diem. I like what you guys have said. You find a way to connect with the jury, but not on like, “Hey, I’m going to give you a math formula and then you’re going to believe in my algorithm to give them that money.” But when it comes to the smaller cases, I think jurors… It’s really easy [00:25:30] for them to latch on to an hourly-

Bob Simon: It’s true.

Matthew Clenden…: … or a per diem. You go, “Look, in our society, we value freedom. We value our time. Somebody is worth something.” When they go to work at McDonald’s, they’re worth something. When they go… Everyone’s time is worth something. You go, “Look, this is what they went through. These are their medical appointments. If you just gave the minimum wage for the time that they had to do, that would be worth X. And in a small case, it works. And I think in a small case, it’s easier to support that. It’s not as cheesy, I guess, rather than if someone’s got a lifetime [00:26:00] worth of a bad ankle fracture.

Bob Simon: But Lourdes, how do you get them in jury selection though to start thinking about those general damages at the end?

Lourdes DeArmas: Well, and that’s where you bring up their own experiences, right? You’re getting them talk… If you do it the right way and you listen to what they’re saying and you get them talking and a lot of attorneys will shy away from one potential juror that is talking about what of a bad experience he had with his accident and how he’s barely sitting there and he takes a lot of medication. I go after that person and I [00:26:30] let them talk because even though I know the defense is going to get rid of him, I use him now to set up my damages, right? Talk to me about how you feel getting up in the morning. How many medications do you have to take? Does it upset your stomach? I use the themes from my case through that person setting up the general damages.

Bob Simon: Even though you know that-

Lourdes DeArmas: But they’re going to-

Bob Simon: … they’re going to get kicked off.

Lourdes DeArmas: They’re going to get kicked off.

Matthew Clenden…: Let them hurt.

Lourdes DeArmas: But the judge isn’t going to stop you if that person’s talking, right?

Bob Simon: That’s right.

Lourdes DeArmas: And how does that make you feel? And how many doctor’s appointments? How long did it take [00:27:00] you to go to the doctor’s appointments? Were you sitting around? Were you frustrated? You’re getting your client’s picture through that one juror that you know is going to get kicked off. And most attorneys, younger ones, will stop talking to that person because they don’t want the defense to kick them off, right? Oh, this guy’s called. Because now, you can use that person to bring out your damage picture.

Matthew Clenden…: Well, it’s same for the rats too, right?

Lourdes DeArmas: True.

Matthew Clenden…: The anti-tort jurors. You’re like, “Tell me more.” Could lawyers shy away? [00:27:30] They’re like, “Oh, okay. That’s a bad juror.” You’re like, “No, tell me more,” so the rest of the jury hates you and doesn’t want to be like you when they go back to the [inaudible 00:27:35].

Lourdes DeArmas: And another trick that I use, which is why I think that I’ve been successful, knock on wood if people start using my method and maybe I won’t be, of getting a lot of jurors off for-cause is that I make the argument for the ones that are against the defense. I don’t just ask the judge for mine [inaudible 00:27:51], I ask him for all the potential jurors. And I know that the law is that the defense go first, I like going first because I’m the one in control back [00:28:00] there. And once I set that tone with the judge that I know what I’m doing with for-cause challenges, I don’t even [inaudible 00:28:07].

Bob Simon: I do in front of the jury. Same person you have up there talking about the pain, everything he’s gone through, obviously defense going to kick him off and get off for-cause, let him say all that stuff and say, “Would you agree you would not be a fair juror for the defense in this case,” and they’ll say yes and say, “Your Honor, I’d like to step. If we want a fair jury, I’ll stick with defense to excuse juror number four.”

Lourdes DeArmas: Oh, I like that. I don’t do that.

Bob Simon: Oh, yeah. And then I go to someone that’s the poison, and said, “Let me ask you a question.”

Lourdes DeArmas: Right.

Bob Simon: You’re [00:28:30] the juror for me. No, why not? Let’s hear it. Who else feels that way? Let’s go. But Bibi, whenever you get in front of that jury and you give your opening statement, we’ve talked about jury selection, how are you setting up for the damage? Do you give your number in opening for what you’re going to ask for in economics or generals? Or are you going to see how it plays out or does it depend?

Bibi Fell: It depends. I mean, if I have a lot of faith in my client and a lot of faith in my liability case, I’ll give the number. If I am like, “Look, if things [00:29:00] go well, if my client testifies well, this is worth X. If she doesn’t, then it’s…” I don’t stretch my credibility. So sometimes what I do, because I do like to anchor with a larger number, I want them to start thinking about larger numbers, even if I’m not entirely sure I’m going to get there is I’ll give a range. I usually do give the economics and then I’ll say, “I’ll be asking for somewhere in the range of X to X times the economics at the end.” And it’s a range that’s large enough that if something [00:29:30] really bad happens and I’m worried about my liability case, my number in closing will be at the bottom end of the range. If everything goes beautifully, my number’s going to be closer to the top.

Bob Simon: I love it.

Matthew Clenden…: I think you get credibility too. If you get up in front of the jury, you go, “Look, I gave you a range and I want to tackle an issue head on, you may be questioning blah, blah, blah.” Or, “You may have seen when the doctor said, blah, blah, blah, and it contradicted this other person.” It gives you credibility to tackle some of the warts [00:30:00] in your case head on I think.

Bob Simon: Yeah. I mean, when I ask for general damages, I just say a number. I don’t equate it to… Sometimes I’ll do it in rebuttal a little bit on whatever I think is appropriate, but I just don’t per diem. It’s like, “Hey, this case is worth six million bucks. That’s what it is, this is what you have to give.” And I think you get credibility, I mean, throughout the trial, but I’ve been doing this a lot where I polarize two paths and I show it in opening. You got two paths here for the jury.
One path, if you believe our story, it’s whatever number you say, a range, four [00:30:30] to eight million. If you believe their path, it’s two. Or just make up a number and polarize and say, “We have a stark disagreement on this.” And I polarize and I show the two paths at the end, the closing, say, “Look, and here’s the conspiracy theory. You have to believe to pick path number one for the defense.” Everybody’s in on it, that’s been very successful. And I just say the number just because there’s been a few case on California like the newspaper ad, you’re not really supposed to do anymore. Do you know that? It’s so stupid.

Bibi Fell: I heard that, but that case, that’s not… When [00:31:00] I read that case, I was like, “Yeah, that’s not how you’re supposed to do it.”

Bob Simon: Yeah. No, it’s not… The person did it improperly.

Bibi Fell: Right, right. It doesn’t mean you can’t use the newspaper ad. It means you can’t use it wrong, which you could never use it wrong.

Lourdes DeArmas: One of two things that I do in closing for damages, which goes with what you just said, is I do a graphic of all of the doctors I brought in to testify and then the one defense doctor.

Bob Simon: Oh, yeah.

Lourdes DeArmas: And then it shows there’s seven people saying that my client is injured and here’s the one paid by them that says it’s not. And [00:31:30] then another thing that I started doing was… It’s gumballs and I know it’s rudimentary and like very elementary-

Bob Simon: Did you say gumballs?

Lourdes DeArmas: Gumballs. So I have three jars or however many different jars.

Bob Simon: Oh, I thought it was a figurative serve, but you actually have gumballs.

Lourdes DeArmas: Yeah. Yeah, our client had three pre-accident visits complaining about her lower back and then had a hundred visits complaining about her lower back afterwards. So I pour out the gumballs. Here’s the three visits that they’re hanging, and then I pour the [00:32:00] 170 into a jar, and just hearing all that plank is kind of impressionable to a jury, and then they see the different jars. How many surgeries? How many surgeries before? How many surgeries after? Zero on one jar, and then like five on the next jar. And I was walking through Smart & Final one day before closing and I was like, “Huh, maybe this will work,” and it did. It depends on the jury and depend on the jurisdiction.

Bob Simon: And that’s why I think that timelines are extremely important. I mean, just [00:32:30] basic black and white timelines to show here’s all the medical treatment you can even add in for closing. Here’s things that are going on their life. Here’s when they hired the defense experts. Here’s when they were following with the video camera.

Lourdes DeArmas: Right.

Bob Simon: Let’s put in perspective.

Lourdes DeArmas: Yeah.

Bob Simon: Matt, actually, because you’ve been trying just as a matter of purpose to getting back in the courtroom after COVID, these damages cases are worth couple thousand dollars just to do it.

Matthew Clenden…: Yeah.

Bob Simon: So how do you find… Because I think it’s way harder to communicate general damages, if any, in those type of cases.

Matthew Clenden…: Yeah, and so that’s why… Lourdes, [00:33:00] you’re right on. I bring in the meds. You got to put the meds in because the jurors are going to be like, “Yeah, we’ll give you your economics, but what’s your sprained neck worth for three weeks?” Those are tough.

Bob Simon: And then how do you find… Do you try to find an emotional hook to your clients, the better story tell?

Bibi Fell: Oh, yeah. Okay, so there are a couple different schools of thought, especially when it comes to women. There are some women who say never, ever, ever cry in the courtroom. And there are other women who say, ” [00:33:30] I cry in the courtroom because it’s real,” so I’m more in the-

Bob Simon: So you’re talking about you crying, not your client or both?

Bibi Fell: Well, usually, we end up both crying. So I do a lot of listening for years. I do a lot of listening. I get to know them.

Bob Simon: You’re going to get emotion limited that you cannot cry. Have you ever seen the one they did at [inaudible 00:33:46] Arash Homampour. That’s hilarious.

Bibi Fell: I can’t help it.

Bob Simon: I know, but…

Bibi Fell: And it’s not like I’m sobbing, right? It’s just like one… I can get a hold of myself.

Bob Simon: A [inaudible 00:33:56] tear.

Bibi Fell: No, but-

Bob Simon: I just made that up. You can use it, Matt, if you like.

Bibi Fell: Right. So [00:34:00] I don’t really tell my clients what I think of them, like how much I admire them. They hear it for the first time in closing, almost every time.

Bob Simon: Wow.

Bibi Fell: And so-

Bob Simon: How do you communicate that though during closing?

Bibi Fell: Well, I’m communicating it primarily to the jury, but there is a moment where I look over at them and I tell them what I think about them.

Bob Simon: Oh, my God.

Bibi Fell: And they end up-

Bob Simon: I don’t know about you, but if I look at my client and say that, I’d start crying no matter what.

Bibi Fell: Right.

Lourdes DeArmas: Yeah, me too.

Bibi Fell: You can’t help it.

Bob Simon: Well, man.

Bibi Fell: So it’s real. I mean, [00:34:30] and I can look away if I have to because it’s getting too intense or whatever, but there’s something that happens in a client when they’re fully exposed, but accepted and you can see it. So yes, I connect with them. I connect with them and I feel what I say to them and I have huge respect and admiration for them.

Bob Simon: Wow. I mean, there’s something that I… I had to call it [00:35:00] the Good Will Hunting, usually rebuttal that I do this, but remember that scene at Good Will Hunting, whenever he hugs Robin Williams and keeps telling it’s not his fault. So I do this in rebuttal, the same type of thing where I tell the client, I speak to them, thank them and I’ll say the thing that nobody’s ever told you, “It’s not your fault. You did nothing to deserve this.” And I’ll look at the jury and I’ll repeat, “It’s not your fault.” All they wanted to hear and say something different like, “You do have value.” I did this in a child molestation case one time. And the juror was all crying, but it was [00:35:30] super powerful because you look the jury in the eyes and just tell them. This is all your client wanted here. You have value, right? But you need to believe it, and that’s why I think… Lourdes, what do you do to find that personal hook? Do you ever have a client you hate?

Lourdes DeArmas: Oh, yeah.

Bob Simon: How do you like them? How do you learn to love those you hate?

Lourdes DeArmas: Because then you focus on their injuries and what they went through as opposed to them, as a person that you don’t like, right? And that goes through when… I do the stories too. [00:36:00] I always tell my clients, “Give me three or four stories, don’t just tell me what you can’t do anymore,” and then I talk to their family members about what they can’t do anymore.

Bob Simon: Didn’t you have a trial where your client was so unlikable, you actually told the jury… I think it’s you and Chris told the jury, “You’re going to hate this person. Let me tell you why.” [inaudible 00:36:16] good story.

Lourdes DeArmas: Yeah. Chris did that and I’ve done that in the past too. And I had this punk kid who showed up at trial with… And that’s why I stopped having my client sit next to me.

Bob Simon: Oh, never. Never. [00:36:30] Do you agree?

Matthew Clenden…: Yeah, very.

Lourdes DeArmas: But he came and he was sitting there and he had like this one side blue and did this weird thing with… And he was just such a jackass. And that’s what I’m like, “No, they’re sitting in the back now,” if I even have them there at all, but it came out through his mom and through his best friend, not him. And I try to set up my trial where my client goes last so that everyone… It’s never perfect because they’re there as [00:37:00] filler. And sometimes if the client is a jackass, I don’t have them there, so they can’t be filler. And I have everything’s scheduled. I usually have my liability experts first, then my damage experts, then my damage witnesses, the client goes last because if they’re unlikeable, the story that is told is already done.

Bob Simon: And you get them up over 10 minutes up and off.

Lourdes DeArmas: Yeah, if that. I have a case that is about to settle. So I’m not really revealing anything, but my client is crazy. She’s batshit crazy. They have seven sub rows [00:37:30] of videos on her, but her injuries are real. She got rear-ended by an 18 wheeler. My plan in trial was not even to call her at all. Let them call her 776, set up from the beginning. My client’s crazy. All of the issues that she has, she tells everybody, she elaborates, but she’s lonely, but she’s really injured. So here are 10 doctors credibility that they’re fighting is let them call her up and let them look like jackasses.

Bob Simon: I had a trial where [00:38:00] I did not call my client and the defense forgot to do a notice to appear, subpoenas. And as the case kept going, multiple week trial, and I realized my client was lying about everything. And this is a dispute of liability, this pedestrian case. And my God, third week of trial, I get… I’m superstition, trial very early, and my co-counsel calls me. And he’s like, “Are you at the courthouse?” I’m like, “Yeah, of course, I am.” He goes, “You got to go third floor, so-and-so’s getting arraigned downstairs.” I said, “What did you say?” It’s one of those courthouse where like criminals downstairs, the civils upstairs. So I went there and made my first and only criminal appearance, and he was about to be sent back to the [00:38:30] clink. And I said, “Your Honor, Ms. Attorney, he’s upstairs in a trial, can we-

Lourdes DeArmas: Wait?

Bob Simon: Yeah. After that, they let him wait. And I sent him on the, quote, unquote, “witness protection program.” You’re out of here, brother. Get out. He kicked the can down the road, and he never came to trial, and the defense couldn’t call him because they never did anything, and jury still… I mean, they worded over a million bucks. I mean, 75% on the defendant on dispute of liability, but we story to… Same thing, I put my client to the end, so they have to be up and off, their story’s already told you.

Lourdes DeArmas: Yeah.

Matthew Clenden…: By the way, stop making [00:39:00] excuses for why your client’s not there.

Bob Simon: [inaudible 00:39:03].

Matthew Clenden…: I’ve heard a million different things. Oh, say that it’s hard for them to sit because of their injury or say that they have to take care of a loved one, just dismiss your client. They’re not here. You don’t have to make up an excuse. The jury doesn’t care.

Bob Simon: Say in jury selection.

Lourdes DeArmas: I always tell the jury in jury selection because I have my client there before and then have them get up during jury selection. And I tell the jurors, I’m having him or her leave. The reason is because I want you to tell me-

Bob Simon: How you feel.

Lourdes DeArmas: … how you feel, and it’s hard for us to talk about people when they’re sitting right [00:39:30] there. And they may not even come back until they testify. And that’s a decision I’m making. Would you agree that you’re not going to punish them for a strategic decision I’m making not to have them [inaudible 00:39:41] here so that everyone can testify and the evidence can come freely without worrying about this person sitting there, agonizing about stuff that people are saying about this?

Bob Simon: And jurors just stare at your client anyway.

Lourdes DeArmas: They do.

Matthew Clenden…: See, I don’t even explain it as much as you do, Lourdes. I just say I’m dismissing them. I introduce [00:40:00] them right before voir dire, dismiss them and just say, “I just want you guys to be honest, I just dismiss my client.” That’s all I say, and then they never come back until they testify.

Lourdes DeArmas: Well, I don’t want them to have a neck injury, and then watching every time they pick up a bottle, turn their head.

Bob Simon: I like to do… I put my client there. If they’re casually injured, I have a new rule that they’re not there even for jury selection, and here’s why. Do you get so many jurors of for-cause due to sympathy because they say like, “If your client’s a quadriplegic or super brain injured, they will just…” But I don’t think they have that visceral reaction, the person’s not [00:40:30] there, but if they’re not as… I do a lot of spine fusion cases and I’ll say, “Look, I’m asking for multimillion dollars and here you see this person walking, talking, breathing, living. Do you think this person’s not worth that? Or do you think they’re a liar, cheating, a fraud? Again, we want to get the poison out. I had one juror raise their hand and say, “I think he’s lying.” He didn’t even hear anything about the case, and-

Bibi Fell: I’ve had that happen too.

Bob Simon: … you can see all the other jurors like, “What is this? Where is this coming from?”

Bibi Fell: Right.

Lourdes DeArmas: Right.

Bibi Fell: And it flips the other way, but I don’t-

Lourdes DeArmas: And then you get that through someone who’s taking care of the mom that had a back injury, was your [00:41:00] mom able to walk?

Bob Simon: Yeah. Bibi, what type of damages witnesses do you look for, that you’re calling to tell the story? Do you have like clusters?

Bibi Fell: I like the person who knows them best, right? It’s usually a spouse or a family member. I like older kids, if they have kids that testify well. So 10 years older, and they’re very short. I like people who the client won’t tell you about because they think, “Oh, they’re not a witness because I don’t see them [00:41:30] anymore. Oh, my racketball buddy, I haven’t seen them in two years because I’m not playing racketball anymore.” I think those are really powerful witnesses. I had a guy who was a trainer and he wasn’t able to work as a trainer anymore after the injury, we called one of his former clients. He didn’t know that person very well. She said, “Yeah. I went every week. I loved taking his bootcamp classes and then all of a sudden they weren’t offered anymore.” And then the defense is like, “Well, when’s the last time you talked to so-and-so.” The last bootcamp class I attended three years ago. [00:42:00] So I like people who have different perspectives.

Bob Simon: Different stories to tell, yeah.

Bibi Fell: Yeah. Someone close and then other people who haven’t talked to the guy or gal in a long time because they’re not out there living their life anymore.

Bob Simon: And Lourdes, how about you when you’re dealing with the Hispanic culture, very proud, say that hardworking male, that a lot of us end up representing, that breadwinner. What damages witnesses are you looking for to help tell their story outside of family?

Lourdes DeArmas: [00:42:30] Outside of family, a workmate.

Bob Simon: Yup.

Lourdes DeArmas: A boss.

Bob Simon: Those are the best ones, I think.

Lourdes DeArmas: Someone that has seen them in the trenches, especially a boss. How are they? Do they ever complain? When they were injured on the job that has nothing to do with this case, tell me, did he come into work every day? Yes. Did he ever complain to you about pain? No.

Bob Simon: Did he file a claim against you for these injuries?

Lourdes DeArmas: Right, so that is important. And friends, a buddy that he goes to drink beer with that he can’t do it anymore. He still does, [00:43:00] and now he’s complaining more or drinking more. See, I never shy away from the bad facts. If my client’s now an alcoholic, why not bring that up? Some of that is gold, and then in closing you bring up… I can’t sell per diem. I’m not mathematical. It doesn’t come out genuinely. The time that I tried it, I had a terrible verdict. So I do moments. Remember when she couldn’t go to that wedding and she was watching her best friend’s wedding on an iPad with her leg up at the kitchen table, [00:43:30] that’s worth something. This is what I would ask you to give her for that. And so I go through setting up the story, all the moments that everyone’s talking about throughout the trial, and that’s how I come up with a number.

Bob Simon: Yeah. I mean, how much you remember those old 900 numbers? How much would so-and-so pay for one minute with their loved one that died? One minute. I’m asking you for if you break… They’ll break it down in their head, whatever, 15 million. So we’re pretty much out of time here, but I want to start, Matt, if the listeners wanted to reach out to you, how best do they [00:44:00] find you?

Matthew Clenden…: Yeah, sure. My cell phone.

Bob Simon: Go ahead.

Matthew Clenden…: Is that dangerous? Is that like not-

Bob Simon: Hey, man. It’s up to you, bro.

Matthew Clenden…: All right.

Bob Simon: You do you.

Matthew Clenden…: I’ll give you my email.

Bob Simon: Look at all that fear. Did you see this? Smelled it.

Matthew Clenden…: All right. All right. (619) 432-9685. Text me or call me anytime.

Bob Simon: Bibi, how about you?

Bibi Fell: Bibi, B-I-B-I, @fellfirm.com.

Bob Simon: F-E-L-L.

Bibi Fell: F-E-L-L.

Lourdes DeArmas: And I’m kind of like Matt, if you send me an email, I’ll get [00:44:30] lost in the abyss. I get like 400 emails a day and it’s terrible. I know I need to be more responsible. So my cell phone would be easier if you text me, (310) 424-0449.

Bob Simon: Yeah. And text, don’t call please, right?

Lourdes DeArmas: Yes. Text, because I’m not going to pick up the phone.

Bob Simon: By the way, do you think… I think emails are now archaic.

Lourdes DeArmas: They are.

Bob Simon: Thank you for saying that.

Lourdes DeArmas: And there’s like a thousand of them and then they get lost in… I emailed you.

Matthew Clenden…: I even thought about doing like a permanent response email that just says like-

Lourdes DeArmas: Text me.

Matthew Clenden…: … This account is loosely mine. Here’s my service [00:45:00] email.” If this is a service document, it has to go here. But other than that, just be aware this is loosely mine.

Bob Simon: My voicemail has been intentionally full for four years.

Lourdes DeArmas: I want to put on my voicemail, “If you reach this, just text me,” because I’m not going to listen to it.

Bob Simon: That’s true. Well, everybody, thanks for listening to this edition of the Justice Team Podcast, info@justiceteam.com, where you could do me at robert@justiceteam.com. Obviously, I’m not going to read it. He’ll get lost in the abyss. You can text me at Matt Clendenin’s cell phone number, and he will reach out to me. So thanks for listening to everybody, Everybody, thanks for coming on.

Lourdes DeArmas: Thank you.

Bibi Fell: Thanks.

Matthew Clenden…: Thanks, Bob.

Speaker 1: (singing)

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