Thinking Outside the Box for a Winning Case Theme

Introduction

A winning theme tells the jury what your case is about and why they should care about it. A lawyer’s ability to craft a winning case theme and communicate more effectively to the jury are essential in trying a good case and, more importantly, getting a great verdict. At the end of the day, when the jurors are deliberating – hopefully some of them are fighting for your case. What’s their best ammunition? The evidence… the law… ideally, yes, but arguably a great theme will be the most memorable part of your case. Your theme, or themes, should be prevalent in every aspect of your case.  

What Does a Winning Case Theme Look Like?  

Not all themes are created equal. Sometimes a theme falls right into your lap as a result of a mistake made by opposing counsel – think: “if the glove doesn’t fit, you must acquit.” More likely though, a gift like this will not be given and you must develop your own theme long before stepping foot in the courtroom. So, how do you actually develop a theme? Don’t start by boxing yourself in to just one theme. Some cases need more than one theme to effectively communicate the issues to the jury. Explore the idea that each major issue in the case deserves and requires its own theme.

Ensure that your theme connects with your jurors by creating a theme around a universal truth that every single one of your jurors can relate to. In a recent trucking case, with stipulated liability, the only issue for the jurors to decide was how much money in non economic damages should be paid to the parents of their now deceased twenty-one-year-old child. “No parent should have to bury their child. When that child is killed due to the negligence of another driver and/or company, they must be held accountable.” The universal truth that a parent should not have to bury their child is one that most people can relate to.

How to Develop an Effective Theme

We usually don’t have a hard time determining what the good facts of our case are – that part is easy. It’s more important to uncover all of your bad facts. Why are you going to lose? Once you fully acknowledge all the weaknesses in your case, try to find a mini-theme that encompasses your case’s weaknesses. The way you develop an effective theme is it to create a story about the scary facts. A common bad fact in car wreck cases is low property damage. The defendants have a powerful visual of a car that has hardly a dent or scratch on it, so it is imperative to have a theme to counter that. Look to undermine this theme with your other facts. Does the plaintiff have significant injuries? Explore in jury selection how someone can have significant injuries if there is no real damage to the car itself. Later, you can explain to the jury that the story behind these injuries is not told in looking at pictures of a care, but in looking at the actions of the defendant driver, for example. If all else fails, do not hide behind your bad facts. Be the first one to stand up during jury selection and say, “The plaintiff’s car was not significantly damaged, who has a concern that he/she doesn’t deserve to be here because of that fact alone?” If your case has unsavory facts surrounding a less-than-perfect plaintiff, own that as well and theme your case to that. For example, “The plaintiff’s life has been filled with bad circumstances and the last thing he/she needed was this wreck.”

Many lawyers believe that a winning theme should be crafted, perfected and then tested on a focus group, which is discussed below. Yes, ultimately, you will want to test your perfect theme in a focus group or mock trial, but before you get there, consider a concept-oriented focus group that is designed to help you develop your theme. A focus group is a gathering of individuals who, ideally, are not like-minded. A concept-oriented focus group is designed to strip your case down to the basic facts, with no fancy lawyering or persuasive arguments. With this method, you allow your focus group jurors to tell you what is important to them, and have them tell you what a winning theme should be instead of the other way around. If your case does not warrant a focus group with all the bells and whistles, be creative. One option to receive feedback on a broad scale is to set a Google-alert for buzz words within your case. You’ll receive an email any time your buzz words appear anywhere on the internet, use these alerts to search social media and local news outlets for the comments section – you may find a theme or two floating around.

How Do You Know Your Theme Works? 

Once you have a winning theme, test it. Then test it again. The smaller the case, the more creative you’ll need to be to test the theme appropriately. Start by simply saying it out loud. Before you use precious resources to test your theme(s) on mock jurors, tell your colleagues, family, and friends about your case. If after your brief synopsis these individuals cannot repeat back to you what your general theme is, you don’t have a memorable theme. And if they don’t understand it, a jury won’t either. A common mistake with this method of testing your theme/case is that often times you are telling your story to like-minded individuals. The more people you can find who aren’t lawyers and who don’t think like you, the better.

Taking your case to trial without having done a focus group or mock trial is bordering on malpractice. Your theme(s) and ultimately your entire case should be tested in a focus group or mock trial. There is no better tool to test if your theme works than a focus group or mock trial. Is your theme simple and easy to explain? Do you hear the mock jurors discussing your theme during deliberations? The answers to both of those questions should be a resounding “yes.” Arguably the most beneficial aspect of presenting your case to a mock jury is that you can present the defendant’s best-case scenario as persuasively as possible. Doing so not only forces you to take a hard look at the other side in order to present it effectively, but it also allows you to learn what the mock jurors will do with the defendant’s best arguments, which you can then protect against at trial.

Implementing Your Theme

It is imperative that you weave your theme into every aspect of the case. It starts in discovery, continues through preparation of your own witnesses, and hopefully onto a juror questionnaire. If you’re waiting for voir dire or opening statement to introduce your theme, you’ve missed several key opportunities. If you are able to weave your theme in your depositions, see if you can get the defendant’s witnesses to agree with your theme.

We know your goal in voir dire should be to undersell your case while rooting out the panel members who are not right for your case. Whatever your theme is, using the opposite premise of it during jury selection will either teach you who may be skeptical of your theme or it will out those who downright disagree with it. After determining who doesn’t agree or doesn’t like the premise of your theme, develop an analogy to educate your prospective jurors. Developing an analogy for your theme is a useful tactic to use during jury selection as it may better illustrate your facts. For example, if your client has a pre-existing injury, consider analogizing that to an old woman with frail bones who has been knocked down. Should we excuse the bad actions of the defendant for knocking down an old woman just because she is more susceptible to being injured?

The effective use of a scaled question during voir dire is a good way to obtain feedback on certain themes quickly and from each member of the panel. However, use these scaled questions with caution as they can quickly become tedious and boring for your potential jurors. If you have an hour for jury selection, you may only need two or three well-crafted scaled questions.

Conclusion

Every case must have a compelling theme that will resonate with the jury. Be creative when drafting your theme and enlist the help of a small focus group to assist you with developing a theme. Once you feel comfortable with your theme, test it on your family, friends, colleagues, and a focus group of mock jurors. The theme in your case should be the memorable line that connects you and your case to the jury.

The Interplay between Medicare and Medicaid for Injured Workers

Some individuals are “dual eligible” meaning they qualify for both Medicaid and Medicare.  In certain cases, a Medicare Set-Aside/Special Needs Trust or Pooled Trust Sub-Account may be necessary to preserve the claimant’s dual eligibility.  Medicare Set-Asides are a device used to preserve future Medicare eligibility.  A Special Needs Trust or Pooled Special Needs Trust is appropriate for claimants receiving Supplemental Security Income (“SSI”) and/or Medicaid benefits.  Federal law allows creation of either an SNT or Pooled Special Needs Trust to preserve eligibility for needs-based benefits, such as SSI and Medicaid, post settlement of a workers’ compensation claim.

Dual Eligibility

Dual eligibility is not extremely common, but there is a subset of the injury population who will be dual-eligible.  Understanding who qualifies for both Medicaid and Medicare is vitally important for the workers’ compensation attorney to insure the injury victim’s benefits are adequately protected.  By CMS’s definition, dual-eligible claimants are those that qualify for Medicare Part A and/or Part B and also qualify for Medicaid programs as well.  Medicare coverage can be obtained prior to age 65 if an injury victim qualifies for Social Security Disability.  It takes a total of 30 months for someone that is disabled to qualify for Medicare (Medicare coverage begins 24 months after the first SSDI check is received which takes 5 months and includes the month of receipt, so plus 1 month).

Some Medicare beneficiaries have so little income or assets that they also qualify for state programs through Medicaid that pay for certain out-of-pocket expenses not covered by the Medicare program.  There are several different programs that injury victims who qualify for Medicaid may be entitled to that help with expenses not covered by Medicare.  In addition, there are services that Medicare does not pay for that can be covered by state Medicaid programs.  For example, Medicare does not cover nursing home care beyond one hundred days yet Medicaid does cover that care.

Preservation of Public Benefits for those who are Dual-Eligible

For injury victims that are Medicare eligible or reasonably likely to be within 30 months, a trial lawyer must carefully consider compliance with the Medicare Secondary Payer Act (“MSP”).  For those injury victims receiving needs-based benefits such as SSI and Medicaid, planning is necessary to preserve those benefits.  Federal law found at 42 U.S.C. 1396p, allows for the creation of either a special needs trust or pooled special needs trust for those meeting the Social Security definition of disability.  Assets placed into one of these trusts do not count for purposes of qualifying for needs-based benefits.  In the remainder of the article, Medicare Set-Asides and special needs trusts will be covered along with the intersection of these two public benefit preservation trusts.

About Medicare and Medicare Set-Asides

Medicare and Social Security Disability Income (hereinafter SSDI) benefits are not income or asset sensitive. If you have a claimant who is a current Medicare beneficiary or is reasonably expected to become one within 30 months, then a Medicare Set-Aside is advisable in order to preserve future eligibility for Medicare coverage. While there is no requirement to establish a Medicare Set-Aside, most carries will require one as a term of settlement in workers’ compensation settlements.  An MSA will insure that Medicare’s interests were adequately considered.

Planning for Medicaid or SSI Recipients

Unlike SSDI and Medicare, Supplemental Security Income (SSI) and Medicaid are income and asset sensitive public benefits that require special planning to preserve. In most states, one dollar of SSI benefits automatically brings Medicaid coverage. This is very important, as it is imperative to preserve some level of SSI benefits if Medicaid coverage is needed in the future. SSI is a cash assistance program administered by the Social Security Administration. It provides financial assistance to needy aged, blind, or disabled individuals. To receive SSI, the individual must either be aged (65 or older), or blind or disabled, and be a U.S. citizen. The recipient must also meet the financial eligibility requirements.

Medicaid provides basic health care coverage for those who cannot afford it. It is a state and federally funded program run differently in each state. Eligibility requirements and services available vary by state. Medicaid can be used to supplement Medicare coverage if the claimant has both programs. For example, Medicaid can pay for prescription drugs as well as Medicare co-payments or deductibles.

A special needs trust (SNT) is required if the claimant is receiving Supplemental Security Income (SSI) or Medicaid. An SNT is a trust whose corpus or any assets held in the trust do not count as resources for purposes of qualifying for Medicaid or SSI. Thus, an injured worker’s settlement can be placed into an SNT so that the claimant can continue to qualify for SSI and Medicaid. Federal law authorizes and regulates the creation of an SNT. 42 U.S.C. §1396p(d)(4)(A)-(C) governs the creation and requirements for such trusts. First and foremost, a claimant must be disabled in order to create an SNT.

The Intersection of Medicare and Medicaid – SNT/MSA

If you have a claimant that is a Medicaid and Medicare recipient, extra planning may be in order.  If it is determined that a Medicare Set-Aside is appropriate, it raises some issues with continued Medicaid eligibility.  A Medicare Set-Aside account is considered an available resource for purposes of needs-based benefits such as SSI and Medicaid.  If the Medicare Set-Aside account is not set up inside a special needs trust, the claimant will lose Medicaid/SSI eligibility.  Therefore, for a claimant with dual eligibility to maintain their Medicaid/SSI benefits the MSA must be put inside a special needs trust.  In this instance, you would have a hybrid trust which addresses both Medicaid and Medicare.  It is a complicated planning tool but one that is essential when you have those with dual eligibility.

Synergy has a pooled special needs trust that is specifically designed to meet the needs of an injured worker who is dual-eligible. For more information, please contact:

Marci Gordon, Director of Sales & Client Relations
Synergy Settlement Services

2420 S Lakemont Ave Ste 160
Orlando FL  32814

(877) 242-0022
Direct: (407) 279-4812
Fax: (877) 349-6980

About the author: Jason D. Lazarus, J.D., LL.M., CSSC, MSCC is a founding Principal and Chief Executive Officer of Synergy Settlement Services.  Synergy offers healthcare lien resolution, Medicare secondary payer compliance services, pooled trust services, settlement asset management services and structured settlements. He is also a founding Principal and President of Multi-Claimant Solutions which offers lien resolution and MSP compliance services for mass torts.  Lastly, he is the managing partner and founder of the Special Needs Law Firm; a Florida law firm that provides legal services related to public benefit preservation, liens and Medicare Secondary Payer compliance.

Inside Look: The Talc-Cancer Connection

On Friday, August 2, a Kentucky state court jury returned a verdict in favor of Johnson & Johnson and Colgate-Palmolive in the state’s first trial over allegations of cancer risks associated with talc products.

It was a turn of events for Johnson & Johnson which had suffered three previous losses on the same question in California and New Jersey, where there are 14,000 pending trials waiting to be heard in a federal MDL.

The plaintiff, Donna Hayes, had argued that her mesothelioma came from persistent exposure to asbestos in Johnson’s Baby Powder and Colgate-Palmolive’s Cashmere Bouquet. J&J’s attorneys successfully argued that Hayes’ cancer was due to exposure to asbestos in garages where her husband worked as a mechanic.

Whether mesothelioma, a cancer of the lining of the lung, or ovarian cancer linked to talc use, the litigation being brought in courts around the country revolves around the central question – do cosmetic talcum powders – Johnson’s Baby Powder, Shower to Shower, and Cashmere Bouquet – contain asbestos, a known carcinogen?

J&J insists there is no asbestos in its talcum powders. The studies being presented at court are based on outdated science, the healthcare giant argues, and talc is not labeled a carcinogen.

As is often the case, these trials must show there was a viable alternative to talcum powder which is cornstarch, an organic carbohydrate quickly broken down by the body.

What does the evidence show?

Evidence presented in the case of Colgate-Palmolive showed the company should have known about the possibility of asbestos in its products. Talc was used from three mines known to be contaminated since the 1940s.

Talc, also known as magnesium trisilicate, is an inorganic mineral and is generally mined from the earth in the same proximity as asbestos, another naturally occurring silicate mineral. 

Testing by the company confirmed asbestos but consumers and the FDA were never informed. 

Plaintiff lawyers have presented a 1982 study that linked talc use on genitals with a 92 percent increased risk for ovarian cancer.

A 1999 study concludes that “avoidance of talc in genital hygiene might reduce the occurrence of a highly lethal form of cancer by at least 10 percent.”

Still in Denial

Johnson & Johnson says on its website, “Science, research clinical evidence and 30 years of studies by medical experts around the world continue to support the safety of cosmetic talc.” 

Facts about Talc is another page on the J&J website explaining the controversy.

In one trial, law firm, Beasley Allen shows on its website two talc products – one purchased from Dollar Tree (Angel of Mine Baby Powder), and another from Walmart (Spring Fresh Powder).

Both have explicit warnings on the label!

“Frequent application of talcum powder in the female genital area may increase the risk of ovarian cancer,” and “Medical evidence suggests that women who use talcum powder as a feminine hygiene product run a greater risk of developing ovarian cancer.”

Should Have Known  

One complaint says the company should have known about the link between ovarian cancer and talcum powder in 1971 when the first study was conducted by Dr. WJ Henderson in Wales.

By 1982, the first epidemiological study was conducted by Dr. Daniel Cramer which found a 92% increased risk in ovarian cancer among women using talc for genital use. Twenty-two additional studies since then have reported an elevated risk for ovarian cancer associated with genital-talc use in women, according to one plaintiffs’ complaint.

Talc was found to be a carcinogen in a 1993 study by the US National Toxicology Program, whether it was found with or without asbestos-like fibers.

Industry PR

As might be expected, industry formed its own association the Talc Interested Party Task Force (TIPTF) to pool resources and defend talc use, and to prevent its regulation.  Scientists were hired to explain the safety of talc, while scientific papers were edited by scientists hired by industry, all to promote disinformation, says one complaint.

The Cancer Prevention Coalition in November 1994 sent a letter to Johnson & Johnson CEO Ralph Larsen, informing him as far back and the 1960’s studies show “conclusively that the frequent use of talcum powder in the genital area pose a serious health risk of ovarian cancer.”

It said 14,000 women die every year from ovarian cancer because it is very difficult to detect and has a low survival rate.

Instead, J&J advertised Johnson’s Baby Powder to “use every day to help feel soft, fresh, and comfortable.” The company advertised its other talcum powder product, Show to Shower with the slogan, “A sprinkle a day keeps odor away.” Another slogan was “Your body perspires in more places than just under your arms,” and “Shower to Shower can be used all over your body.”

Studies show African-American women are more inclined to use vaginal deodorants, so J&J targeted marketing to the black community.

By 1996, the condom industry stop dusting condoms with talc due to health concerns of ovarian cancer.

Since 2006, the International Association for the Research of Cancer (IARC), part of the World Health Organization, has classified perineal use of talcum body powder as a Group 2B human carcinogen.  Among women using talc genitally, IARC found an increase in ovarian cancer risk from 30 to 60%.

Canada has classified talc as D2A or very toxic, the same classification as asbestos.

To this day, the J&J Baby Powder still does not an adequate warning or instructions regarding the increased risk of ovarian cancer with use of the products.

Author, Jane Akre is a journalist who focuses on injuries to women by drugs or devices. She provides quality research, blogs, interviews, content and copywriting services to law firms. She is currently creating the website, www.womenshealthlitigation.com, preparing her first podcast, and would love to talk to you about your goals.  You can reach her through her website www.meshnewsdesk.com or at jeakre@gmail.com (904) 613-2828.

LEARN MORE:

Imerys Talc
http://www.imerystalc.com/content/corporate/About_talc/Health_and_safety_effects/index.php?source=region;2

EuroTalc, Scientific Association of European Talc Producers
http://www.eurotalc.eu/health-and-safety

Material Data Safety Sheet
http://www.beasleyallen.com/media/2017/05/Talc-Material-Data-Safety-Sheet.pdf

Fourth Amended Complaint August 14, 2017, Here 2008 study partially funded by industry-firm representing Luzenac America, a talc manufacturer, here

Defendants Sanctioned in Prince Music Dispute for Wiping Cell Phones

In Paisley Park Enterprises, Inc., et al., v. George Ian Boxill, et al., No. 17-cv-1212 (D. Min. Mar. 4, 2019), a Minnesota magistrate judge granted in part and denied in part Plaintiff’s motion for sanctions due to spoliation of evidence on the grounds that Defendants acted with an intent to deprive Plaintiff of ESI to use in the litigation.

The matter stemmed from the Defendants’ attempt to release songs by the artist Prince without the permission of the Prince Estate. On February 11, 2017, before releasing the music at issue, Defendant David Staley (“Staley”) indicated in writing that he would be indemnified if the Prince Estate chose to challenge the release of the music. On March 16, 2017, the Prince Estate sent a cease and desist letter to Defendants and filed suit on April 14, 2017. On January 10, 2018, the Court issued its pretrial scheduling order, directing the parties to preserve “all electronic documents that bear on any claims, defenses, or the subject matter of this lawsuit.”

During discovery, Plaintiff filed a motion to compel discovery from Defendants Staley and Gabriel Solomon Wilson (“Wilson”) seeking production of text messages that Staley and Wilson sent to each other and to third parties.

At a meet and confer on September 21, 2018, counsel for Staley and Wilson indicated that they could not produce responsive text messages because Defendants had not preserved their text messages. Specifically, Staley and Wilson did not disengage the auto-delete function on their phones. Staley also had wiped and discarded his phone in October 2017 and Wilson had wiped and discarded his phone in January 2018 (and then subsequently wiped and discarded a new phone in May 2018).

In ruling on the motion, the court initially held that the duty to preserve evidence arose no later than February 11, 2017, when Staley sent an email regarding his plans to release the music. Turning to the next prong, the Court emphatically held that Defendants Staley and Wilson failed to take reasonable steps to preserve relevant ESI. First, the Court held that both Defendants failed to take reasonable steps by not disengaging their auto-delete functions and by failing to put in place a litigation hold. More egregious, according to the Court, was that both Defendants wiped and destroyed their phones after they had been sued, and, in the second instance for Wilson, after the Court ordered the parties to preserve all relevant ESI and after the parties entered into an agreement regarding the preservation and production of ESI.

Having met the prerequisites for a finding of spoliation, the Court then turns to what, if any, sanctions are appropriate for the Defendants’ failure to preserve relevant text messages. Finding that the Plaintiffs are prejudiced by the deleted texts, the Court holds that sanctions are appropriate under Rule 37(e)(1).

The court then considers the appropriateness of sanctions under Rule 37(e)(2). Finding that the Defendants acted with an intent to deprive the Plaintiff of the evidence, the Court holds that Rule 37(e)(2) sanctions are warranted.  The Court states, “the wiping and destruction of Wilson’s phone for a second time are perhaps the most egregious or unkindest acts of all. Wilson got rid of his phone in May 2018, after: (1) litigation had commenced; (2) Plaintiffs served discovery; (3) Plaintiffs expressly informed the RMA Defendants that they intended to seek discovery regarding Wilson and Staley’s text messages; and (4) the Court ordered the parties to preserve all relevant electronically stored information in its pretrial scheduling order. Any one of these events should have been sufficient to put the RMA Defendants on notice that they needed to preserve their text messages and phones. The Court can draw only one conclusion from this set of circumstances: that they acted with the intent to deprive Plaintiffs from using this information. Rule 37(e)(2) sanctions are particularly appropriate as to Wilson, RMA, and Deliverance for this reason as well.”

However, the Court refuses to impose sanctions under Rule 37(e)(2) at this time on the grounds that discovery is still on-going and that it is more appropriate to defer consideration of those sanctions to a later date. Notably, though, the court states that the Plaintiff’s request for an adverse inference instruction will likely be justified in the future.

Instead, the Court ordered, pursuant to Rules 37(b)(2)(C), 37(e)(1), and 37(e)(2) and the Court’s pretrial scheduling orders, Defendants to pay reasonable expenses, including attorney’s fees and costs, that Plaintiffs incurred as a result of the Defendants’ misconduct. In addition, pursuant to Rule 37(e)(2) and the Court’s pretrial scheduling order, the Court also ordered the Defendants to pay into the Court a fine of $10,000.

Stay abreast of the latest eDiscovery trends with International Litigation Services’s Plaintiff-focused eDiscovery blog, ESIcaselaw.com.   Every month, International Litigation Services (ILS) scours the latest developments in eDiscovery case law to bring important cases to the Plaintiffs’ bar’s attention, with an aim to highlight cases where Plaintiffs are scoring victories for their clients and also to show the traps they can fall into through avoidable mistakes.  Check out a recent ILS case summary below where Plaintiffs took Defendants to task for intentionally destroying critical cell phone data and come hear two ILS litigation consultants (Elizabeth Koenig and Jennifer Hisel – ADD hyperink to conference agenda) share eDiscovery tips with you in New Orleans in September.

Juggling Your Law Firm, Home Life and Winning in Business

After two weeks of practicing law, I was shocked and dismayed when I opened my first paycheck and realized that at a small personal injury firm, I was making close to nothing and could not even pay my rent. My boss sat me down and said, “In order for you to be successful you need to bring in business.”  I hit the streets running. I met with unions and spoke at events and quickly realized that I had an ability to market to get business. I was compassionate and could listen and was able to garner large settlements in negotiations easily. After building up business in my law practice I started a company that soon became the largest litigation funding company in the country where I ran the attorney marketing department. Since inception I have traveled the country and have met with and presented to hundreds of law firms. I see what works and what does not work.

Fast forward 26 years and I am now an owner of a fast-growing multi-platform financial service company specializing in plaintiff funding, transportation and medical funding. I run our marketing department and am proud to say that we have achieved growth in a competitive marketplace with organic marketing. We have not spent money on ads, SEO or TV spots. We simply create a buzz because we have mastered the 3 Ps. The 3 Ps are passion, promotion and publicity. These are the recipe for the success of my company, Momentum Funding and have also been the formula for the most successful woman run law firms across the country.

As lawyers, we were never taught in law school how to market or how to run a business. Many of you will be judged, promoted and compensated based on bringing in new clients. Many of you can advocate for others. That is how you were trained in law school. However, when it comes to advocating for yourself to get business you are more uncomfortable. Not to mention, that after a long day of work you find it exhausting to spend your evenings at networking events.

The first step is to find your passion and then promote it. Find your niche and focus on telling your own personal story. Writing a business plan can help you discover what sets you apart from other lawyers. For example, what do you specialize in? One lawyer I know was previously a registered nurse. She uses her medical knowledge and background to market as a nurse lawyer. This furthers her litigation strategy and increases her settlements. Other lawyers refer her cases as they know she has the expertise to work on complex medical cases. The nurse lawyer promotes herself by speaking at events, writing articles and setting herself up as the lawyer with medical expertise.

Another lawyer I know handles car defect cases. She is a mother who became an advocate in her state and local governments to change the car seat laws in her state. She had young children at the time and was able to take her passion for children and help others. She uses this passion to create a name for herself. As a result, lawyers across the country refer her product liability and catastrophic cases. Her passion was promoted by her involvement in government where she has become a leader in her state trial organization, creating a name for herself politically and professionally.

One of my favorite marketing niches is the lawyer who has become the motorcycle lawyer. She had a case early in her career where an injured motorcyclist hired her and she settled his case for a considerable amount of money. She then became passionate about motorcyclists and joined many local motorcycle clubs and advertised in motorcycle publications. She is also plastered all over billboards in her geographic market and has become a household name in her community.

Finally, the third P is promotion. Promote yourself through many channels and you will soon determine which channel works for you. Community outreach and charity are key. Find the organizations you feel passionate about and involve your friends and family. This way you can involve your family in order to have the balance you need in your home life. Some lawyers find that speaking engagements and/or political involvement will help promote them. Finally, take on a leadership role in a local organization.

Publicize depending on your budget. As my company Momentum Funding does, you can publicize through organic channels on a small budget by writing articles, contacting the press when you speak at newsworthy events and marketing to your database through emails, letters, and website promotion.

Finally, in order to achieve the balance, you need to juggle your work with your home life and have FUN doing what you love.

A Guide on Dealing with the Media

A Guide on Dealing with the Media

How to Win With the Media

Fake News. The term makes me cringe.  Not only because it’s generally said as a preemptive strike by people who want to distance themselves from any present or future unflattering stories, but because it often is just not true.

I’m not speaking about the National Enquirer or US Magazine, I can’t vouch for entertainment or celebrity news, but I can vouch for news reporters. I’ve been one since the late ‘70s and have worked in about nine newsrooms, some radio, mostly television, affiliates, owned stations and CNN.  Reporters work long, hard hours, often for very little pay.  Print reporters, who generally make less than broadcasters, make much less, work even harder and with less of the glory, in my opinion.

Journalism is a calling, one fewer and fewer young people are entering. Journalism schools are being overrun with public relations majors.  PR job hours are more normal and the pay is generally better.

But there may be times when your law firm needs to get out its story. You have a great case and want the public to understand. You may be looking for others who are harmed by a drug or a device, or may want to win your argument in the court of public opinion.

No consumer should have to wait the many years a mass tort takes to understand the dangers of a device or drug that your discovery has uncovered.

I’m thinking talcum powder and ovarian cancer.

Twenty years ago, physician and professor of environmental medicine and occupational health, Dr. Samuel Epstein, of the Cancer Prevention Coalition, told me never to use talcum baby powder genitally.  It is linked to cancer because of asbestos fibers found in the talc. The particles lodge near the ovaries, causing irritation and eventually cancer.

How many lives could have been saved had his warning received widespread attention decades ago?

Only today is the public hearing about this warning buried in the long-overdue litigation and the enormous jury verdicts for plaintiffs that have made the headlines. 

The public shouldn’t have to wait to get this important information!

The media is the way to get out the word. But how do you pitch a story without being taken for a ride?

Hopefully, you are a news consumer in your local area and from national outlets, radio, newspapers, broadcast.  There is always a friendly reporter in your area. 

Consumer “On Your Side” types are still a feature of every television newsroom.  Contact them or find someone who works a similar “beat” for a newspaper. Don’t leave out alternative papers. They too have readership and reach.

Have a meeting over coffee. Let them know you are well-meaning and that as a personal injury lawyer you too work “in the public interest,” just like holders of the public airwaves (broadcast).

The bottom line is this – whoever gets a story to a reporter first is the narrative that will likely prevail.   

So find a friendly face in the crowd and tell them the story.

But what if there are things that cannot yet be revealed?

Understand that reporters use a language.

Most reporter follow the Society of Professional JournalistsCode of Conduct. It is a good and thorough code for professional conduct. Read it.  Cite it to them. Most reporters have been encouraged to follow at some point in their career. 

Here is the language you use with a friendly reporter including the ground rules for information that can and cannot be revealed.   

Off the Record – means they cannot use it.  They must find another source to go “On the Record” with that information.  Make sure your reporter understands that promise.

On Background – Meaning they can use the information but it didn’t come from you. It is simply the context they need to tell a story.

For the Record – Means that you can be quoted.  Make sure you are carefully crafting what you want to say. There are generally no do-overs.

Have your reporter friend recite what they mean when they say “Off the 
Record,” so you can check their understanding just in case they have a different interpretation.

They may look at your with surprise.  How do you know that?   Well you’ve read the code of conduct and you understand the rules. Do they?  If they do not, finish your coffee and say have a nice day.

Again, reporters work long, hard hours and for little pay. It is a calling and a good reporter is passionate about that calling. Reporting is one of the fastest ways to see the world and come face-to-face with issues of our time. Occasionally you even have a front row seat to history.

These people do exist and they can be immensely important in helping you craft your narrative to the public.

Use the media to your own ends and you may find your story, your litigation, gains traction to bring you clients and to raise awareness of a real and emerging danger that the public needs to know now, not years from now when the harm has already occurred.

3 Successful Tips for Getting Your Exhibit Admitted Into Evidence

Presenting a well thought out demonstrative has the power to compel a jury to see angles of your case words can’t illustrate. But laying the foundation for getting your exhibit admitted into evidence is a major part of the battle lawyers often overlook.

Taking steps to properly lay the foundation for your exhibit will ensure you and your visual team are on the same page in illustrating the most important evidence, communicating the core themes of your argument, and complying with all the requirements necessary to prove your exhibit is admissibly bulletproof.

We break the process down into these three simple steps.

1) Collaborate Early With Your Exhibit Team

Meeting with your exhibit team early enables both you and your team to foresee all the requirements needed to recreate an accurate presentation that includes all the facts, statistics and evidence to strengthen your case. It also allows time to organize all the technical assets required to produce the most powerful presentation possible.

2) Establish a Clear Understanding with Your Exhibit Team About the Themes of Your Case

The evidence doesn’t speak for itself as persuasively as the larger story. Making sure your team has a clear understanding of the larger arguments you’ll be communicating to a jury will ensure the production process connects the evidence with the more compelling themes of your case – resulting in a clear, cohesive message that resonates with the jury.

3) Adhere to a Proofing Process that Allows Expert Witness to Provide Feedback for Revisions in a Timely Manner

The final step to ensuring your exhibit will be admitted into evidence is to have your key expert participate in the proofing process to ensure he or she agrees w what has been created represents an accurate account of what happened. Adhering to a proofing protocol that incorporates your expert’s feedback as early as possible will minimize the amount of revisions and ensure your exhibit is finished both timely and most importantly, accurately – with a feeling of confidence that it will overcome any objection from the opposition.

Once you have an expert-approved trial exhibit that communicates the themes of your case while being accurately grounded in hard evidence, you will be ready to have it admitted into evidence with peace of mind.

High Impact’s team of visual strategists, artists and developers can build and customize your digital presentation for any case involving personal injury, medical malpractice, birth trauma – or any subject involving complex information.

Ms. Esquire: How the Legal Field Is Changing for Women

Ms. Esquire: How the Legal Field Is Changing for Women

Law has traditionally been a men’s profession. It wasn’t until 1868 that the first female lawyer in the United States – Arabella “Belle” Mansfield – was admitted to a state bar association. Fifty years ago, female lawyers were unheard of. Even thirty years ago, the percentage of women in law was woefully small.

It wasn’t until the 1990’s that females began joining the ranks of the legal profession en masse. In 2000,an estimated 28.9 percent of all lawyers in the U.S. were women. At the beginning of 2017, that percentage had grown to 36 percent.

Now, we live in a world in which the legal field is changing to become friendlier and more accessible to women who aspire to practice the law in a wide variety of areas. There are women judges – even three female U.S. Supreme Court justices – as well as female litigators, general counsels, law school professors, and law school deans.

In this state alone, we’ve had multiple female chief justices of the Supreme Court of Alabama, including our current Chief Justice Lyn Stuart. In the 2016 elections, furthermore, nine female judges – African American females, even – were elected as circuit and district judges in Jefferson County.

What’s more is that more and more women lawyers are joining the elite ranks of partnership, even in some of the nation’s biggest firms. As of 2017,over one-fifth of all partners in the nation were female. An estimated 18 percent of the managing partners in the nation’s 200 largest law firms were women. And nearly half of all associates and summer associates were female.

Within my firm – Hare, Wynn Newell & Newton – we have three female associates and three female staff attorneys. Our women lawyers have been recognized nationally for excellence and are a part of the thriving legal community in our state.

The future looks bright, as well: women received 47.3 percent of all law school degrees awarded. (Plus, 54 percent of leadership positions in collegiate law reviews are women, and 49 percent of all editors-in-chief are women.)

The legal field is changing for the better for women. Our daughters are growing up knowing that if they have the aspiration and ability, they, too, can become lawyers – and even partners and deans and judges. They see that women are capable of driving substantial changes to policy at all levels and are influencing the practice of law all across the country. They also can see how female lawyers can use their experience as a catalyst for involving themselves in the community at large, whether it is as an activist, nonprofit advocate, or politician.

I personally want my daughter to see me as a role model and learn that life is about helping others with the talents and gifts we have. When it comes to law, women have a unique ability dig deep into others’ lives and tell their stories. I want my daughter and other daughters to believe they have that abililty, too – the ability to have compassion for people and their situations.

Some of the progress was made the old-fashioned way, through decades of perseverance, determination, and hard work from trailblazers. Some of the progress being made today and into the future is accomplished by groups likeMs. JD, a student-founded nonprofit working to support women in the legal profession.

Every time a mother, guidance counselor, teacher, or mentor tells a young woman that yes, the law could be for them, though, more progress is made – one woman at a time.

It’s an exciting time to be a female practicing law in today’s America. There are still challenges that need to be overcome – for example, there is only one female lawyer in the Alabama legislature – but female lawyers have shown that women are just as capable in practicing law as men, and can provide rich insight and experience to the ever-changing nature of jurisprudence. There are real benefits to having women at the table, not just in the conference room but in the courtroom, and there are many situations in which having a woman represent a client is a real advantage for the client.

Support our nation’s young women as they choose a career, and if their dreams happen to settle on the practice of law, encourage and cultivate them. They can – and with hard work, will – become a reality

Networking 101

Networking 101: What They Forgot To Teach You In Law School

Everyone knows that being a speaker at a high profile seminar is the professional equivalent of getting a huge endorsement from some icon in your industry — being asked to speak means you must be knowledgeable, interesting — you must be a “player.” So, you have instant credibility as you wander the halls of the event hotel — you’re invited to the speakers’ reception, you get a special badge and ribbon, you’re elite.

But what if you’re an attendee, swimming in a sea of people, trying to make a name for yourself at a conference? How do you connect with others and establish yourself amongst all your peers? You are attending the conference to hopefully learn, but more importantly, to lay the foundation for future business deals and partnerships. The alliances and relationships that you begin with other attendees at seminars will likely come into play in the future. The time will likely come when you will need an ally or information — knowing who to contact at that moment will be critical. When that big problem or choice opportunity lands on your desk, you’ll be glad to know who to reach out to for answers, advice, or partnership. Conferences are where these professional relationships are built and cultivated.

Most legal conferences and trade shows are set up with the attendee in mind: the organizers want their seminar to be “user friendly” and they want you, the attendee, to be able to make the most of your time there and then in turn, want to return again and again. Keep that in mind as you are planning — the organizers should be your resource, your ally.

Here are some specific tips that will help you navigate your way through your next seminar:

1. If They Build It, You Should Come

At Mass Torts Made Perfect, we’ve established a forum and reception specifically for 1st time attendees. First Timers are invited to a workshop where we discuss the different aspects of the program and answer their questions, and then have an informal cocktail party where they can begin the practice of networking. But out of 200 or so first-timers, only around 100 attend this event organized especially for them. 50% of them are missing out on this exclusive introduction and opportunity to really gain a foothold at the seminar, and the chance to meet some of the speakers who attend. It’s important that if the seminar organizers invite you to a special event that you attend — they are doing this for you! Your time at the seminar is important — don’t waste it wandering around alone when you could be at a great networking event.

2. Location, Location, Location

Stand next to the bar at the cocktail party, or next to the coffee urn at breakfast. Just doing that will probably solve all of your networking challenges! It may seem obvious, but in the meeting room, sit at a table with other attendees — don’t just hang in the seats in the back. Definitely attend any lunch or meal event and sit at a table with others — most of the attendees are in the same boat you’re in — they don’t know anyone either. At MTMP, we work with our vendors to host several meals, and it’s surprising how many people skip the luncheons or reception to go back to their room to read email or go shopping, or go sit by the pool. This is a working conference and every event is meant to help the attendee maximize his or her time there.

3. Meet the Vendors — They Are Smarter Than You!

The exhibit hall at MTMP is full of vendors who are there to tell you about the latest greatest trends in their industry. Don’t be afraid of them — they won’t bite. (And they often have cool giveaways and raffles for things like flat screen T.V.s and iPads!). These vendors are knowledgeable, enthusiastic, and genuinely interested in finding those attendees who could benefit from their product or service. If you visit their booths, you’ll find that they have a lot of information to share, and they tend to know a lot of the players and are extremely well-connected. Many of them have been doing this for 15, 20 years. They are not to be avoided — they are a fantastic resource — use them!

4. Embrace Your Inner Extrovert

Knowing what your objectives are when you attend a seminar is important — you need to figure out what you want to accomplish while you’re there. If you want to get involved in the new Essure project, approach the Essure speakers after their talk. If you are looking to meet specific lawyers from firms you’re interested in working with, enlist the help of the seminar staff to find those attendees. You will need to reach out repeatedly, and that can be difficult even for people who consider themselves social. Just remember that it’s a numbers game — the more times you reach out, the more chances you’ll have to make a good connection.

Oh, and lastly — wear comfortable shoes. You’ll be glad you did!