Latest / Coopers' Code / From Hung Jury to $24M Victory - Part 2: A Tale of Two Elder Abuse Trials

Transcript

From Hung Jury to $24M Victory - Part 2: A Tale of Two Elder Abuse Trials · Coopers' Code

• 0:00
  In our case, there were so many things that could have done.
• 0:03
  The facility had like a 36 page fall prevention policy with all
• 0:09
  these beautiful like decision trees and things where if they
• 0:13
  came in with this condition and they have this risk factor, you
• 0:16
  should do XY and Z. But none of those things were
• 0:20
  done in our case. Howdy and welcome to the show.
• 0:25
  I'm very excited to have another one of our after action reviews
• 0:28
  where we're going to do a deep dive into a recent case and an
• 0:32
  outstanding result. Today we get to sit down with
• 0:36
  Carmen Quadani and Kelsey Craven, both from Stebner
• 0:41
  Gertler and Quadani. They're going to talk about
• 0:45
  their trial, successful trial in the Donahue versus MBK senior
• 0:49
  living case. And and it's not just one trial,
• 0:52
  it's two trials because there was a hung jury along the way.
• 0:56
  Let's go into the second trial. You are trying this a second
• 1:03
  time. You've gotten feedback from
• 1:05
  sounds like 8 out of 12 of the jurors in terms of what the
• 1:09
  issues were, what some of the hang ups were in the jury room.
• 1:13
  How did you then translate that into the presentation and the
• 1:16
  theme for the case? In the first trial, the defense
• 1:20
  did a decent job at really blaming the pandemic on
• 1:24
  everything, right? You know, unprecedented pandemic
• 1:28
  at all. All facilities like this were
• 1:30
  having an extremely hard time with staffing.
• 1:32
  It's, it's not our fault we're excused from this.
• 1:36
  And I, I think in the first trial, we didn't really tackle
• 1:41
  that pandemic issue head on as much.
• 1:44
  And we also, it was more just, oh, they should have done this,
• 1:47
  They should have done this. Whereas the second trial, it was
• 1:52
  more of a theme of, yes, there was a pandemic, yes, it was
• 1:56
  affecting the ability to staff adequately.
• 2:00
  However, they still had choices despite those difficulties and
• 2:04
  they still decided not to take those choices that would prevent
• 2:07
  harm. So instead of just saying they
• 2:10
  should have done this, it was more of a just a a theme of
• 2:15
  choices and and they just kept choosing the bad choices.
• 2:19
  Right. And the other thing that we did
• 2:21
  differently in the first child, the defense really was that in
• 2:27
  terms of the wrongful death cause of action, that Miss
• 2:31
  Donnie, you didn't die of the hip fracture, that she died of
• 2:34
  dementia and she was going to die of dementia anyway.
• 2:37
  And they had a very qualified expert, you know, an expert who
• 2:41
  is a palliative care doctor to testify about dementia.
• 2:45
  And she did so intelligently. And in the second trial, where
• 2:51
  we pivoted was to have our expert sort of talk about that
• 2:56
  first and show that, yes, she had dementia.
• 2:59
  And yes, you know, the process of dementia ultimately leads in
• 3:04
  death. But where Miss Donahue's life
• 3:08
  expectancy trajectory before was a sort of a straight line, when
• 3:13
  she had the hip fracture, it caused an abrupt change in that
• 3:18
  line. And then their expert really
• 3:21
  couldn't shouldn't have anything to say to that.
• 3:23
  And it would have been incredible for her to say that
• 3:28
  it didn't, you know, just because Miss Donahue had been
• 3:32
  walking before and then she became bed bound.
• 3:34
  She lost a bunch of weight after the injury.
• 3:38
  She developed wounds from her immobility that she never would
• 3:42
  have had. And so the lesson we learned was
• 3:45
  the harder parts of the case in the first trial we needed to
• 3:50
  take control of and tackle head on in the second.
• 3:53
  You mentioned earlier that in the elder abuse world, fall
• 3:57
  cases are the are kind of considered the hardest of the
• 4:01
  cases. Why is that?
• 4:04
  Because everybody knows someone who's had a fall that's elderly,
• 4:08
  and because no person in long term care could ever say that
• 4:13
  every fall can be prevented. I mean, probably the only way to
• 4:17
  do that is to like restrain someone or something, which is
• 4:20
  terrible. You know, nobody's going to say
• 4:23
  that's what should have been done.
• 4:25
  And So what you have to show and what our experts testified to
• 4:30
  and what we showed in this case was not that they had an
• 4:34
  obligation to prevent every fall, but they had an obligation
• 4:37
  to do everything they could. To have a fall prevention and
• 4:41
  mitigation plan in place to sort of account for every possible
• 4:45
  variable, to make changes anytime there's a red flag that
• 4:50
  comes up or to evaluate, and to try to reduce the likelihood of
• 4:55
  falls and reduce the risk of harm if there is a fall.
• 4:59
  And if you do those things and you do everything you can and a
• 5:03
  fall still happens, you know, maybe then there wasn't anything
• 5:08
  you could do. But in our case, there were so
• 5:10
  many things that could have done.
• 5:12
  The facility had like a 36 page fall prevention policy with all
• 5:18
  these beautiful like decision trees and things where if they
• 5:21
  came in with this condition and they have this risk factor, you
• 5:25
  should do XY and Z. But none of those things were
• 5:28
  done in our case. In fact, the person who was
• 5:32
  responsible for training the staff on that policy didn't even
• 5:35
  know that it existed. So I I thought that was pretty
• 5:39
  compelling to the jury as well. That sounds like it must have
• 5:43
  been a great moment in whatever deposition and whatever cross
• 5:47
  you were doing. Indeed.
• 5:51
  On the expert side, it sounds like in these types of cases you
• 5:54
  have a liability expert of some of the sort, a nursing home
• 5:58
  expert. And then there's also somebody
• 6:00
  that you used to talk about the the causation.
• 6:03
  Piece, that's right. So we had a a woman who has
• 6:09
  experience in operation of assisted living facilities.
• 6:13
  She had three facilities that she ran herself as the executive
• 6:19
  director for a number of years, Christina Flores.
• 6:23
  And she was great to talk about liability and talk about the
• 6:27
  standard of care and the failures and breaches.
• 6:30
  And then we had a physician to talk about life expectancy and
• 6:35
  cause of death and causation for the injuries.
• 6:39
  Another area where I would anticipate things might be a
• 6:42
  little different in terms of working the case up is selecting
• 6:47
  a jury. And are there things that you're
• 6:50
  looking for in jury selection that are different than your
• 6:56
  standard personal injury case when you're handling an elder
• 6:58
  abuse case like this? This is where I'm going to have
• 7:02
  to say a little bit. It depends.
• 7:04
  I've never tried a personal injury case.
• 7:06
  So my whole career this is this is the work I've been doing,
• 7:10
  just like Kelsey. So I don't know.
• 7:14
  But what we really focused on and looked for was jurors who
• 7:22
  were or would find themselves in the future in a position to rely
• 7:28
  on someone else to help with care of their loved one more
• 7:33
  than anyone else. Someone who's not going to be
• 7:36
  critical of a decision to put your parent in a memory care
• 7:39
  facility, but somebody who could see themselves or their parents
• 7:44
  in Teresa Donahue's position. We had in the second trial a
• 7:50
  woman who had experience working in that type of facility, who I
• 7:54
  think was a critical juror for us because she could talk about
• 7:57
  what the staffing was like and what that job was like.
• 8:01
  And you know, sort of help where it's not just on the facility
• 8:05
  day-to-day staff, but the actual management and their decisions.
• 8:09
  I think that helped for jury selection in both cases.
• 8:12
  I used this book. There's a book called From
• 8:15
  Hostage to Hero by a woman named, sorry, Della Mott.
• 8:19
  So we used some a lot of her guidance and pointers in terms
• 8:24
  of kind of getting everybody to agree to standard principles and
• 8:29
  the basic principles of our case.
• 8:31
  Like, you know, it's reasonable to expect that if you trust
• 8:34
  someone to take care of your loved one, that they would do so
• 8:39
  the best they could, that they would tell you if there was a
• 8:42
  problem or if they weren't able to do it.
• 8:44
  Everyone agree with that kind of a thing.
• 8:46
  And more of the inclusive than exclusive Wadir, which you know,
• 8:51
  it's an experiment. The 1st jury and the second were
• 8:56
  dramatically different. And maybe, Kelsey, you can talk
• 8:58
  a little bit more about that. Clearly, we were much more happy
• 9:03
  with the result from the second. How are they different, Kelsey?
• 9:06
  I think the first jury was very much more of an individualistic
• 9:14
  vibe. They were all kind of in their
• 9:17
  own worlds and, and versus the second jury was much more
• 9:23
  communal. They even organized the a pizza
• 9:25
  lunch together just because they wanted to hang out and, and you
• 9:29
  can just sense that, that feeling of togetherness with
• 9:33
  them when you were in the courtroom.
• 9:35
  And so and I, you know, we obviously were not in the
• 9:38
  deliberations, but I would think that because they were, they're
• 9:43
  pretty much becoming friends at that point.
• 9:45
  But it made the deliberating process easier because they
• 9:49
  could have conversations without people and, you know, and
• 9:52
  compromise on certain aspects. Whereas I got the sense in the
• 9:57
  first file, the jury had some people that seemed to be
• 10:05
  personality types that don't budget and, and don't really
• 10:10
  care what other people's perspectives are.
• 10:13
  And and so I think that sense of community with the second jury
• 10:17
  really made a huge difference. And I think you can tell that
• 10:20
  too from just looking at the verdict forms in both.
• 10:23
  So in the first child, they weren't they they're what my
• 10:27
  feedback was that there were eight in favor of the negligence
• 10:33
  finding, but the rest were not. And it could never agree beyond
• 10:37
  that. In the second trial, it was
• 10:40
  almost, it was unanimous or 11:00 to 1:00 on every single
• 10:45
  question. They were really one unit.
• 10:49
  Absolutely. I think you said that the first
• 10:51
  trial was 5 weeks long. The second one, roughly how long
• 10:54
  was it? Basically the same.
• 10:57
  We started on March 1st and we got our verdict on April 5th.
• 11:02
  The last day the jurors were cleared through April 5th, and
• 11:06
  we had on April 4th got a finding of punitive damages,
• 11:11
  oppression and recklessness. And then we had to go home,
• 11:16
  review all the documents put on the witness.
• 11:18
  We had to be done by I think 11:00.
• 11:20
  So the jury would have two hours to deliberate and then everybody
• 11:23
  had to go. So it was like, we're going to
• 11:25
  get it done in this time. Part of the reason I was asking
• 11:28
  about the the amount of time was whether you found there were
• 11:31
  any, any efficiencies like oh, we, we shouldn't do it this way
• 11:37
  or we can can be more concise with some of the information.
• 11:41
  Sounds like it. That's not the case that it was
• 11:44
  in essence the same length. It was the same length, but I
• 11:47
  would I think that we were more efficient in the second child.
• 11:51
  In our case, one of the defenses was that the daughter was
• 11:57
  responsible for what happened because she didn't allow her mom
• 12:01
  to be on different medications or and then there was also a
• 12:06
  defense that the Hospice who is providing care to Miss Donahue
• 12:10
  while she was at the facility that they were responsible for
• 12:14
  the fall precautions. And so there were a couple of
• 12:17
  trials within the trial which were allowed to happen in both
• 12:21
  cases. And so we weren't totally done.
• 12:24
  I mean, we weren't totally in control over the timing of
• 12:27
  things, but in the first case, I think the plaintiff's evidence
• 12:33
  was like 2 1/2 weeks, and in the second it was probably more like
• 12:38
  2. And the question that I was
• 12:41
  starting to ask was whether you had the same trial judge for
• 12:43
  both trials? We did.
• 12:45
  The judge in our case was Judge Oscar Pardo and interestingly
• 12:51
  the defense counsel in the case, the main defense counsel is a
• 12:56
  gentleman named Tom Beach, his law, his brother is named Max
• 13:02
  Beach, who also practices on the defense in this type of cases in
• 13:06
  Santa Rosa. And Max Beach's former partner
• 13:10
  was Judge Pardo, who retired and went on the bench.
• 13:14
  When we were at the first getting ready for the first
• 13:19
  trial. We actually had been to assign,
• 13:21
  been assigned to a different judge, Judge Broderick, who'd we
• 13:26
  work with in the past on the Sonoma Fire cases.
• 13:29
  And he, we were happy with him. He was set for another trial.
• 13:35
  And so we didn't know who we're going to end up with.
• 13:38
  And then we got assigned to Judge Pardo.
• 13:40
  And it's kind of a had to do a gut check about whether we're
• 13:44
  going to take this judge or not. But we ended up taking him and
• 13:48
  he was very thoughtful, kind of newer to the bench, but he
• 13:51
  really did what he could to get it right and he was a judge in
• 13:54
  both trials. Some people describe Sonoma
• 13:58
  County as being very much there, being a hometown advantage,
• 14:02
  being a somewhat insular bar. It sounds like that was not a
• 14:05
  problem for you in terms of the way your case came out.
• 14:09
  Well, I think we kind of maybe played to the hometown advantage
• 14:13
  a little bit. So the defense firm is from
• 14:17
  Southern California and Kelsey and I are very much Northern
• 14:22
  California girls. How we say we drove everyday,
• 14:27
  Kelsey and her Subaru and me and my Volvo.
• 14:29
  You know, we were commuting back and forth, especially during the
• 14:32
  second trial every single day. And the defense showed up in
• 14:36
  their rented Escalade with their blue matching suits very, you
• 14:40
  know, Southern California and we were not that.
• 14:43
  So I think in a way we took advantage of the hometown
• 14:47
  advantage here. Was there any moment in the
• 14:49
  trial where you felt like the tumblers had just fallen into
• 14:53
  place, like the evidence for the cross exam or some piece?
• 14:57
  It just felt like the jurors got it and and things were more
• 15:00
  likely to to turn out the way you wanted this time.
• 15:03
  Well. What comes to mind for me is
• 15:06
  actually further along. It was in the punitive damages
• 15:09
  phase and Carmen was asking the president and CEO of the
• 15:16
  company, you know, you said that these would be the documents
• 15:20
  that would prove your financial condition, yet those weren't
• 15:22
  produced. Why were that?
• 15:24
  You know, she was just asking him why weren't why, why didn't
• 15:27
  we get all this information? And then on, on top of that, we
• 15:32
  also did have a document that showed that, you know, this
• 15:36
  whole time the company is claiming that they're, they
• 15:39
  were, or they were throwing out all their financial resources to
• 15:43
  get as much staffing as possible.
• 15:45
  And then we showed them a document showing that they were,
• 15:51
  they're transferring $2,000,000 a month to their real estate
• 15:54
  investment Trust Company. And I just remember the jurors
• 16:00
  reaction for that. And, and when Carmen asked the
• 16:04
  president that, he basically was just like, I don't know, that's
• 16:09
  normal. Yeah, he he didn't seem to care
• 16:11
  at all. He didn't have any empathy or,
• 16:15
  or regret for what had happened. And I think that really
• 16:20
  infuriated the jurors. And I, I literally heard them
• 16:23
  scoff. They, they, they basically
• 16:26
  laughed in his face because he was being so defensive and just
• 16:32
  getting caught in these lies. That that was, I think one of
• 16:37
  the highlights for me of just the jury just seeing how part of
• 16:43
  my French but foolish they were, you know.
• 16:47
  And I'd say too, in the first phase of the trial, there were
• 16:51
  certainly times where it didn't go exactly how we wanted.
• 16:56
  There was a, a witness of staff from the facility who we had
• 17:02
  deposed. And after the deposition, we
• 17:05
  kind of learned that she was a lot more involved in things then
• 17:09
  we knew at the time. We wanted to put her on the
• 17:12
  stand in the first trial and they said she's unavailable and
• 17:16
  we wanted to put her on in the second trial and they said she
• 17:19
  can't. She basically was having like a,
• 17:21
  some mental health issues. And so there was a big fight
• 17:25
  about that and whether we could put her on and we ended up
• 17:29
  having to do like an outside the presence of the jury have the
• 17:35
  defense lawyer had to go to her. And then she was on Zoom and the
• 17:38
  judge could ask her some questions kind of about her
• 17:42
  whether she was able to testify. And the judge allowed her not to
• 17:46
  after she finally got a doctor's note.
• 17:48
  So that was something I felt was really important because she was
• 17:51
  the the staff who was there at multiple of the falls and she
• 17:55
  was one of the staff who had given our Miss Donahue Lorazepam
• 18:01
  multiple times. And so she was like someone key.
• 18:05
  And after that not being allowed to bring her in, you know, I was
• 18:08
  kind of feeling down. But quickly we sort of pivoted
• 18:13
  and picked up the pieces and just tried to focus on and hit
• 18:16
  the hardest things and really keep it simple.
• 18:19
  And I think it over time in the days following that, it did
• 18:24
  start to feel like we were getting traction, getting
• 18:27
  momentum. And that was around the time I
• 18:29
  started to notice the juror cohesion.
• 18:33
  So, you know, whatever it was they were going to be one way or
• 18:38
  another, but I felt like we were getting our momentum at that
• 18:41
  time. When you say juror cohesion, can
• 18:44
  you unpack what you mean by that?
• 18:45
  What were you seeing? Yeah.
• 18:47
  So when we would wait in the hallway for the judge or the
• 18:53
  bailiff to let us in in the morning or at lunch, we would
• 18:58
  just see the, you know, like Kelsey said they were all
• 19:01
  planning. They would come and eat lunch
• 19:04
  together. They the courtrooms right across
• 19:06
  from Mountain Mike's Pizza in Sonoma.
• 19:08
  They rented the party room like actually to have this pizza
• 19:12
  party. They would all chat and talk
• 19:16
  about each other's kids. And it was, it wasn't just
• 19:19
  everybody staring at their phone.
• 19:21
  They were they were all like friendly and checking in and 01
• 19:25
  woman got sick or something happened and so we had to call
• 19:28
  an alternate in and it was like everybody was so concerned for
• 19:32
  her. You could just tell like they
• 19:35
  actually were a group. And then once we started to, you
• 19:39
  know, we had really tried to identify who were going to be
• 19:42
  the leaders in what year and they did well.
• 19:46
  There was a sleeper leader in there that we didn't know who
• 19:49
  ended up being the four person in the second child.
• 19:52
  But the other leaders were like these kind of stronger women,
• 19:56
  older women, and they kind of led the dynamic.
• 19:59
  But the whole group worked together and seemed to work
• 20:02
  together really well. When you say Sleeper Leader I, I
• 20:06
  know when people are picking juries, they're very concerned
• 20:09
  about who the leaders are and who aren't.
• 20:11
  How did it transpire that this person, I would use the phrase
• 20:15
  snuck by, but what do you think made it so that you were not
• 20:18
  able to identify this person as a leader early on?
• 20:21
  There was a juror who was he was a tech guy.
• 20:26
  He pretty much wore a hoodie during trial.
• 20:29
  He was one of the least engaged with the group.
• 20:32
  He wore a this blue hoodie every day, just kind of kept to
• 20:36
  himself. He wasn't like totally off, but
• 20:38
  he wasn't in the middle of things.
• 20:40
  He wasn't ever planning a pizza party.
• 20:43
  He took notes, was really serious about everything but but
• 20:48
  more reserved. It turned out that he was the
• 20:56
  foreperson. I think he had been involved in
• 20:59
  some litigation in the past which we really didn't know
• 21:02
  about, where he, I think his home may have burned in the Tubs
• 21:06
  fire. He ended up being one of the
• 21:08
  strongest jurors for us. It wasn't somebody I was even
• 21:11
  able to speak with after. He didn't really want to be
• 21:13
  involved after he let everyone and when when they got to the
• 21:17
  decisions about damages and stuff, I think he put
• 21:20
  suggestions out there and everyone except for them.
• 21:23
  If you're enjoying what we're doing here with Coopers Code,
• 21:25
  please help us extend our reach by giving us a five star review
• 21:28
  on Apple podcasts and consider sharing an episode with a
• 21:30
  friend. Additionally, we want to know
• 21:32
  who you want to hear on the show.
• 21:34
  I have an interview suggestion, e-mail us at podcast at Coopers
• 21:37
  dot law. Going back to your witness, who
• 21:41
  the judge ultimately forced you to use the deposition, had you
• 21:45
  had the opportunity to do a videotape deposition for that or
• 21:48
  did you have to read transcript? We did.
• 21:51
  Thankfully. We had video of almost all the
• 21:55
  depositions because it was the beginning of the pandemic when
• 22:00
  we were doing all these Zoom depositions.
• 22:01
  So everything was on video again.
• 22:04
  There were a lot of questions in hindsight that we wish we would
• 22:08
  have asked her in the deposition that we didn't, but it sort of
• 22:12
  played to our hand because they were saying, well, we asked the
• 22:16
  judge to say that she was unavailable for health reasons
• 22:21
  or something specific. He he told the jury she can't be
• 22:24
  here because of her health. So we're going to play our
• 22:27
  testimony. But even in the deposition, she
• 22:31
  was sort of like erratic and all over the place.
• 22:33
  And I think I think the jury got out of it that this woman that
• 22:38
  the facility had put in charge of all these elderly people,
• 22:42
  including Miss Donahue, as like the decider, the manager on duty
• 22:47
  was maybe not the best call. On the technology side, when
• 22:52
  you're doing videotape deposition presentations or or
• 22:56
  just the technology of of trial itself, do you use an outside
• 22:59
  agency? Do you do that yourselves?
• 23:01
  How do you how do you tackle that?
• 23:02
  The technology is provided by none other than Miss Kelsey
• 23:06
  Craven. I'll let you speak to that.
• 23:09
  Yeah, we, I, I mean, pretty much everything was in house between
• 23:12
  Carmen and I for, for all of the things.
• 23:16
  But technology wise, you know, with the deposition video, I do
• 23:21
  have experience with video editing.
• 23:23
  And so I made the video of the clips that we wanted so that all
• 23:28
  we had to do at trial was press play.
• 23:31
  And so that that was smooth sailing in terms of the
• 23:34
  technology throughout the trial, we had iPads and we're using
• 23:38
  Trialpad, which I really, I really liked.
• 23:42
  And I think, you know, it was, it was quite a contrast between
• 23:46
  Carmen and I with our iPads, we're all, we had an Apple TV,
• 23:50
  so we're completely wireless. And then the defendants table
• 23:55
  had wires everywhere, like throughout the whole courtroom.
• 23:58
  And a lot of the times their technology wasn't working, even
• 24:01
  though they had not only their two attorneys, but they also had
• 24:05
  a paralegal and sometimes they even had more support.
• 24:09
  So I, I think in terms of technology, we were definitely
• 24:13
  more advanced throughout the trial than the other side.
• 24:16
  And you know, I, for example, in closing for the rebuttal, I just
• 24:22
  quickly put together a PowerPoint on the iPad while
• 24:26
  they were doing their presentation so that we just
• 24:29
  pulled it up, you know, and, and just had it immediately
• 24:33
  available of what they literally just talked about.
• 24:35
  And I I think that. Worked really well.
• 24:37
  Other quick takes in terms of things that you did or didn't
• 24:41
  do, are you a mini opening person or a a neutral statement
• 24:46
  person? He did an A neutral statement.
• 24:49
  I don't know if I'm opposed to a mini opening, but I'd never done
• 24:53
  1 and I didn't really want to try something new on these
• 24:57
  trials, so we didn't do one. But we did talk about all of our
• 25:02
  tougher facts in Webier. Your question.
• 25:06
  We weren't allowed to have one in the first trial.
• 25:10
  The judge said no. He would ask certain questions
• 25:13
  that we all had agreed upon. Once it came out, though, that
• 25:17
  one of the jurors had it convicted felony.
• 25:21
  We said we are not leaving without a questionnaire and it's
• 25:24
  got to ask that specific question going forward.
• 25:28
  This goes back to finding out that the four person in the
• 25:31
  first case had not disclosed significant information.
• 25:35
  Correct. It's certainly a nice thing to
• 25:38
  hang over a judge when you're asking for your question.
• 25:40
  It was really no discussion. Yeah, I know you had the very
• 25:46
  expensive five week focus group for the first case.
• 25:50
  Did you do any sort of focus group for either of the two
• 25:54
  cases outside of that? We did.
• 25:57
  We did a focus group in Santa Rosa before the first trial
• 26:04
  where we did it in a court reporter's office.
• 26:10
  I put on the plaintiff's case and then my partner, Catherine
• 26:14
  Stebner, put on the defense. I think we got from our jury and
• 26:21
  OK, verdict, fine. Verdict was no, no, runaway.
• 26:26
  And then we did not focus group it again between trials.
• 26:30
  Do you use a jury consultant? No.
• 26:33
  On the second trial, because of everything, we tried as much as
• 26:38
  possible to streamline and avoid expense where we could.
• 26:44
  We didn't use a jury consultant. We just sort of workshopped and
• 26:50
  talked to a lot of people and then went with our guts.
• 26:54
  Did you have an opportunity to talk to any of the jurors from
• 26:56
  the second trial and and if so, were there any learnings that
• 26:59
  you got from them that were very helpful for you?
• 27:02
  Yes, I talked to a lot of the jurors in the second child.
• 27:06
  I think there were only a handful that we couldn't reach,
• 27:09
  maybe 3 or 4. When the defendants filed their
• 27:12
  post trial motions, we knew that we needed to rule out any, you
• 27:17
  know, juror misconduct. And so we got on it really
• 27:21
  quickly and I talked to everybody very in depth.
• 27:25
  We did get information. You know, one, one of the most
• 27:28
  insightful people that I talked to was the juror who was the one
• 27:33
  against us on a couple of the things.
• 27:36
  She was a very conservative and she just wasn't a big believer
• 27:41
  in lawsuits. She worked for a big bigger
• 27:44
  company. She didn't feel like it was
• 27:47
  overwhelmingly neglect or anything like that.
• 27:52
  I don't think she found negligence, but some of the more
• 27:57
  corporate stuff she did go with us.
• 28:01
  So, you know, I think we really tried in the second trial not to
• 28:05
  stereotype or try to put people in the same boxes and make make
• 28:11
  assumptions about where they would end up and try to get
• 28:14
  people that had the right value system and valued elders.
• 28:18
  It's a hard area for people to give pain and suffering and for
• 28:23
  people to find wrongful death when someone's in their 80s.
• 28:27
  So that's a challenge and you really have to finesse to find
• 28:31
  the jurors that are going to be open to that conversation.
• 28:36
  So I sort of veered away from your question, but we did learn
• 28:39
  a lot at talking to the jurors for sure.
• 28:43
  I'm trying to think of like a main take away of something we
• 28:46
  learned, but more that people aren't always black or white,
• 28:50
  you know, like this one conservative person.
• 28:52
  She she was with us on certain things which I didn't expect her
• 28:56
  to be, but not on the negligence question, which seemed to me the
• 29:02
  easiest one. Yeah, I think there's a
• 29:05
  mentality that if you're older, then you're more likely to be on
• 29:10
  our side in terms of elder abuse cases.
• 29:14
  But you know, she was a prime example of how, again,
• 29:17
  stereotypes and assumptions don't always play out when it
• 29:19
  comes to jury selection. Sometimes, in that that hang
• 29:23
  time between the initial verdict and the punitive damage phase,
• 29:29
  defendants start scrambling and trying to figure a way out.
• 29:33
  Were there any talks between the time that the initial verdict
• 29:38
  came in and the punitive damage phase?
• 29:42
  Sometimes when I'm doing deposition prep, I'll tell
• 29:44
  certain clients to answer the question they wish they'd been
• 29:47
  asked. So that's what I'm gonna do.
• 29:50
  So actually there really was a time between the first verdict
• 29:54
  and the second, 'cause we literally, I think they came
• 29:57
  back at like 3:00 and then we had to drive home and review the
• 30:02
  documents and put the witness on the next morning at 8:30 drive
• 30:07
  back to Santa Rosa. But after the jury went out in
• 30:11
  the second trial, during that 2 1/2 days, we were getting emails
• 30:15
  from the other conference room from the defense.
• 30:17
  Our, our carrier thinks it's going to be another mistrial.
• 30:21
  We should talk about settlement. And we were like, well, we're
• 30:24
  not really interested. And then they said they think
• 30:28
  it's going to be another mistrial.
• 30:30
  They really feel it's going to be another mistrial.
• 30:33
  And we said, well, you know, we'll, we're open to it, but you
• 30:38
  got to make, you know, now's your time.
• 30:40
  And they didn't really offer anything that changed our mind
• 30:43
  from finding out the outcome. And I really do think our client
• 30:47
  was looking for shouldn't care about the number, but she was
• 30:54
  looking for the jury to say, yes, you were right.
• 30:58
  They didn't do what they should have done when taking care of
• 31:01
  your mom. And she got that.
• 31:03
  And that is more valuable than anything else for her at the end
• 31:06
  of the day. Any other learnings, wisdom
• 31:09
  pieces that you would like to share from your experience in in
• 31:15
  this fight? I had a little bit of a rough
• 31:20
  time processing the hung jury the first round, You know, this
• 31:26
  was my, it was my second trial. The first trial settled after
• 31:28
  jury selection. So it's my, you know, my first
• 31:30
  full full blown trial. And it was a big knock to my ego
• 31:37
  to get the hung jury and then not only to to not win, but then
• 31:41
  to be like, Oh my God, we're going to have to do this again.
• 31:45
  Was just a, you know, a lot mentally.
• 31:48
  And I think what I learned from this experience is that there's
• 31:52
  a certain type of mindset of when it comes to not meeting
• 31:57
  like you put your own expectations for yourself to
• 32:00
  just not be so hard on yourself and to there's always positives
• 32:03
  even when you do lose right? You it's a learning experience
• 32:06
  no matter what, still got trial experience, still learned insane
• 32:11
  amount that, you know, forever changed my career.
• 32:14
  And so I think for me of just pivoting on the way that you
• 32:20
  process non successes, I don't want to say losses because I
• 32:24
  don't think that's the right word, but of just, you know,
• 32:28
  keeping hope and just keep doing the good fight because that's
• 32:31
  what we're all here for. I really like that Kelsey.
• 32:34
  I have some big and small picture, I guess things so
• 32:38
  smaller picture like actual trial things.
• 32:42
  I, I think what the process showed me is, you know, even
• 32:47
  throughout the first trial and then the second trial, we were
• 32:50
  still learning things when we looked at, when we looked at the
• 32:54
  same information again, we were still realizing new things or
• 32:57
  figuring out different angles. And you'll always have to be
• 33:00
  open to that. And don't just start with this
• 33:04
  box. This is the discovery we have
• 33:06
  and this is how we're going to put it on at trial without being
• 33:11
  reckless. It's OK to sometimes start down
• 33:15
  a road you don't know where it's going to go because it might end
• 33:18
  up for you in a really good place, which is what it did in
• 33:21
  this case. Bigger picture, I think my
• 33:26
  coping mechanism is a little opposite of Cal C cause I don't
• 33:31
  know, mine was just Energizer Bunny.
• 33:33
  So as soon as we got done, I was like ready to go.
• 33:35
  And everybody else is like, what are you doing?
• 33:38
  Maybe you should settle the case.
• 33:39
  What are you doing? And I was like, Nope, we're
• 33:42
  going like, I'm getting this. I know we can get it.
• 33:45
  Don't give up. You know, part of it too was our
• 33:47
  client was just really, she and I were in lockstep in that
• 33:51
  mentality. We were really lucky to have
• 33:55
  great clients who we had a really good relationship with
• 33:59
  that we really trusted and that really trusted us to go in there
• 34:04
  and do our best and and then let the chips fall where they lay or
• 34:09
  where they may. And so we were really lucky and
• 34:14
  I don't, you know, I know we won't in every child have that
• 34:17
  situation. What we did here.
• 34:19
  And then I think too is like, you never know what you can do,
• 34:24
  what challenge you can meet and tell it presents itself to you.
• 34:28
  I mean, it was certainly a challenge.
• 34:31
  There were times in the second trial when Kelsey was working on
• 34:34
  another trial where I was by myself in court against these
• 34:39
  two guys with all their support and their wires and everything
• 34:42
  else talking about medicine and, you know, putting on experts or
• 34:47
  whatever. And, and that was hard.
• 34:49
  And and then driving home at the end of the day and picking my
• 34:52
  kids up from school and doing home things and then prepping
• 34:56
  and then going back again and again for five weeks was hard.
• 35:00
  But you just got to know that you'll meet the challenge and
• 35:05
  have faith like Kelsey said. Where I was going to close was
• 35:10
  to ask each of you if there was anything that you wanted to
• 35:13
  share with people who who are in the phase of of wanting to
• 35:17
  become trial lawyers, who are younger trial lawyers, any,
• 35:22
  anything along the way beyond what you shared that you would
• 35:26
  want to tell them. I would say, Simply put, just
• 35:30
  say yes, right, If there is an opportunity, even if it scares
• 35:34
  the crap out of you, just say yes.
• 35:38
  And you know, it's kind of a little bit of a fake it till you
• 35:40
  make it mentality. But I feel like it works so well
• 35:43
  and you know, you'll again, like what Carmen was saying earlier,
• 35:46
  it you'll, you'll find a way to make it work.
• 35:49
  You know, do those, those, those power poses in the bathroom
• 35:53
  before, before you go into the courtroom.
• 35:55
  I actually did that and it, it actually helped, you know, just
• 35:58
  just again, just that yes, mentality I think really will
• 36:03
  not only get you to have those opportunities that you've been
• 36:07
  wanting, but we'll also keep pushing you through once you've
• 36:10
  had those opportunities. Yeah, I would say two things.
• 36:13
  Number one is for newer attorneys is sometimes you
• 36:18
  really have to push to get your foot in the door to have a spot
• 36:22
  at the trial table. And it's important to do that,
• 36:27
  even if it's a small slice, take what you can get like Kelsey
• 36:30
  said. And for more experienced
• 36:32
  attorneys, I think we all have an obligation to make room at
• 36:36
  the table and lift people up. It can be a much more secure
• 36:40
  feeling to know that somebody more experienced is going to
• 36:43
  handle the child from soup to nuts.
• 36:46
  But you're doing yourself, in the long term, a disservice by
• 36:51
  doing that. And then I would also say that
• 36:54
  it's OK even in child, even in front of a jury to be a human
• 37:00
  and it's OK to make mistakes sometimes because that's a human
• 37:05
  thing and jurors want to see you as human.
• 37:09
  In my closing, in the second trial, we totally changed the
• 37:14
  way that we are going to ask for numbers.
• 37:18
  The numbers, you know, in the first trial we asked for just
• 37:20
  around number $5,000,000. And the second trial, it was
• 37:24
  this crazy number. And so I put it on the
• 37:27
  PowerPoint. I said, OK, this is the amount
• 37:29
  we're asking for. It's like $8,000,643.17 or
• 37:35
  something. And then I said, OK, I'm going
• 37:37
  to explain to you how I did it. And then I wrote on the board
• 37:41
  all these different calculations.
• 37:43
  It's like the number of days you were neglected, the number of
• 37:45
  days she had scabies, the number of times she had a fall, the
• 37:48
  number of times she was medicated when she shouldn't
• 37:50
  have been. And it all added up.
• 37:53
  And then in the middle of my presentation, which I had to
• 37:55
  practice because we just decided it like the night before, the
• 37:59
  defendants objected about something, a date was wrong, and
• 38:03
  I had to recalculate. And I was math on the fly is
• 38:07
  like nobody's dream. But in front of the jury with
• 38:11
  everything written down and like my scribbled notes was
• 38:14
  terrifying. And so I just stopped.
• 38:17
  And I said, hold on. And I redid everything on my
• 38:19
  phone. I did it with the calculator.
• 38:22
  I said I got to check my work because I'm a lawyer, not not a
• 38:25
  math person. And then I went back on and I
• 38:27
  think the jury found it endearing and the math was
• 38:30
  right. Like it checked out.
• 38:32
  And they actually did give us a lot of those weird specific
• 38:36
  numbers that we asked for. I don't know if that's why, but
• 38:39
  I'll take partial credit. I gave it to you.
• 38:44
  Well, thank you both for taking the time to sit down and talk
• 38:48
  about the case and sharing all the the work and the learning
• 38:53
  that you've had from it. We really appreciate the
• 38:55
  opportunity, Miles. Thank you.
• 38:57
  Yeah, thank you for having us. It was a pleasure.
• 39:00
  And for all our listeners out there, thank you for joining.
• 39:03
  If you like what we're doing, please consider sharing the
• 39:06
  podcast with a friend or giving us a five star review on your
• 39:09
  podcast platform of choice. To all of you doing justice out
• 39:13
  there, happy hunting.