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Why Humanizing Plaintiffs Changes Everything in Court · Coopers' Code

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I've always understood it's not my case.
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Whoever the client is, it's their case.
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I serve at their pleasure, so I like to keep their pleasure
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high. And I really just apply the
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golden rule. If I'm a client, what would I
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want? I'd want no surprises.
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If you want me to review something, give me some time.
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Don't tell me it's due tomorrow at 10.
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Don't make any big decisions or commitments unless I'm in on it.
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It's my case and so forth. And so I do, I just apply that
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with the client regardless of whether they're happening in the
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one instance to be the insurance company or self insurance,
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they're going to know the case as it's going.
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Howdy, and welcome to the show. Cooper's Code focuses on legal
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issues and noble practitioners, distilling wisdom so we all
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achieve the best results for our clients.
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I'm Miles Cooper and I'm thrilled to share Part 2 of this
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conversation with Clement Glenn. As you were working to build a
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case to to to get it right, do you find that your firm is
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approached by certain carriers or certain companies or certain
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profiles, higher exposure types of cases?
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We generally do not work for carriers.
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I have one exception I can tell you about that.
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But throughout my career it's been primarily been self
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insured. So DuPont was, it was and a huge
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client of mine for many years. We, they're still a client, but
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they've changed in their, they've split off and done
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things, you know, General Electric and other Fortune
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companies. So that, that was the beauty of
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Pillsbury. I got exposure to these firms
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and firms like that and they, they had exposure to me.
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So when I say, hey, my rates are cheaper and here I am of my own
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shingle, you know, I, I had some credibility.
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We don't advertise, we don't do any of the stuff that lawyers
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do. Maybe we're we stay busy.
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So I guess it's working. I said I don't work for
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carriers. Most of us who deal with
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carriers understand they like premiums better than claims.
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And also if you're dealing at the adjuster level, you're often
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dealing with somebody who's trying to impress somebody at
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the next level, who's trying to impress somebody.
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And you need to be at that upper level, right?
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Which is why you guys send your policy limits or time limited
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demands so that you get the attention of the committee.
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And they do, and they do that. They respond to that.
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A guy that I used to work with at General Electric, great guy,
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he's one of my best friends in the profession.
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Left GE, which has undergone its own dramatic changes several
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years ago, became a consultant to a particular insurance
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company, I won't name them, but and did a TBI case and they
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didn't like the panel council they had.
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And they, he came to me and said, hey, we're really worried
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about this case, could you guys help?
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And so we did, we got a good result for them.
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And then they said, well, we got another tough one.
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So that has kind of gone. And those tend to be higher
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exposure cases. And some of them I'm the
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grandfather in the sense that there's a concept I never knew
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about called monitoring council where I look over the shoulder
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of the lawyer doing the hard work and decide, you know, do I
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have any thoughts? And in certain cases, do I need
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to say something to the insurance company like you need
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to make a change? You know, they usually are
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already at that point where they they're concerned when they ask
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you to take a peek as monitoring council.
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But I like injury work, not because of any morbid sense, but
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it's, you know, it's part of life, it's human dramas, it's
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pain, it's loss, it's. And I think being able to
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comprehend that and to show the appropriate reverence towards
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those episodes in people's lives is a useful thing.
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And there's lots of defense lawyers who are cynical as hell.
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Everybody's game in the system. Every plaintiff's lawyer is just
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a scumbag who wants to make more money than the other plaintiff's
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lawyer that he wants to out advertise, you know, all that
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stuff. And then on the plaintiff side,
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you know, everybody on the defense side is a, you know, and
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I'm not to, you know, can't afford their car.
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And you know, all that stuff goes on.
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And I don't think you ever maximize anything positive when
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you approach, if you don't let the stereotype you may start
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with get dislodged. Let's say that casualty work, as
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I say, I think is, is they're also, you know, they tend to be,
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I mean, you can get massive medical records and things like
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that, but they tend not to be these huge hundreds of thousands
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of pages of commercial documents and emails and all that.
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And that gets, you know, I've done it many times, but they're
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a little bit more, they're a little bit more compact, even
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the big cases. And, and then the other thing is
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there's going to be an outcome in those cases.
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And one way or the other, most of them are going to get
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settled. Most of them aren't going to go
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to trial. And I think being able to
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participate in a solution is a gratifying thing.
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You know, if you're if you're positively participating.
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And then of course if you, you know, if you run up against
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somebody who is a little bit wacky in their evaluation from
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the plaintiff side, then you have to try the case.
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Then you try the case. And but I think even just
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providing A credible threat as a defendant, as a defense lawyer,
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you know, makes a difference in case resolution.
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I mean, when I get a new case, if I'm defending, I always want
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to see who's who's the plaintiffs lawyer.
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That's the first thing I ask. Because you could take the same
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volume of clay as a sculptor and there are ones who will turn it
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into an unbelievable work of art and others who will just turn it
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into a bowl that's holds Cheerios.
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And I want to know which, you know, which sculptor I'm dealing
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with. So.
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And the same is true on the defense side, you know, 'cause
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the defense lawyer creates your risk.
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If you're a plaintiff's lawyer, facts are the facts.
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But OK, yeah. What do we do with them?
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And, and I, I like being part of that process.
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And at this point, I think I've got, you know, reasonable amount
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of St. cred and if I don't, I'm going to run out of runway
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pretty soon. On the street cred side, when,
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when someone was asking a little bit about who who you are, I was
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describing how that there are are people in this field who I,
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I sometimes would describe it as a deep sea creature.
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You know, there are whales in the law and then the people that
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are beneath the whales and monitoring councils is the other
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phrase for them, which you don't even know that this person is
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shot calling in your case. And and yet there they are on
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that front or related front. You've talked a few different
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times. You use the word human and and
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interactions. Can you outline some ways in
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which you feel that being a human and being a defense lawyer
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has made an impact? And I'm I'm thinking about
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meeting with a plaintiff in mediation or, or other
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situations. Like that one of my favorite
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instances of that was a case, very simple accident case.
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I was Sears Roebuck was the defendant.
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One of their employees didn't T-bone, but sideswiped a car and
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the so I the case was assigned to somebody else and in the, you
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know, a panel lawyer somewhere, I'm sure.
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And the woman who was the driver of the other car started getting
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some neck pain. She went to Kaiser.
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Kaiser told her what you're going to need is a neck surgery.
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And she said no thank you and, and went home.
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And then she continues to get worsening neck pain, you know,
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the old artificial whiplash, right?
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So she goes back and they said, yeah, you know, we've got
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there's findings there. You're, it's you need to deal
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with this. So she agrees to do the surgery
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and comes out of it hemiplegic on the left side.
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So now they figure it's a dangerous case.
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And they call me and say, we want you to try this if you
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know, but we'd like you to help us try to resolve it.
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So we go to mediation. It was my first involvement in
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the case and wasn't a complex case.
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And she's there, 2 lawyers were there for her, good lawyers.
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Our mediator was Bill Bentinelli.
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I was there, but there was a pretty good number of people
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there. And Bentinelli starts the
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mediation and I thought it was a very clever way.
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He he says, man, we're going to be talking a lot about you
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today, but let's hear from you first.
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Tell us who you are. And her opening line was who I
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am is not who I was. It was not rehearsed, 100%
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spontaneous in my view. And I knew the lawyers pretty
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well. They're not, you know,
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architects, They're presenters. And she starts talking about her
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life story. And she grew up in the flats in
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Oakland. And she was, you know, in kind
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of the deprived part of the town.
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And she was very important for her to escape the life and get
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out of that. And by the time of this
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accident, she was a criminal. She was an investigator for the
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Alameda County District Attorney's office dealing with
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welfare fraud. And as she's talking about her
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life and how she got to that point, she has this magical
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smile. There are more teeth than the
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average person, or at least more that showed up when she smiled.
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And she clearly enjoyed talking about that and her life.
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And then she started talking about how things are after the
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accident and the surgery. And pretty quickly into that
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phase of it, she started crying. And again, maybe she took me in,
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but I don't think so. I think it was real and it was
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spontaneous and why not? Her life had been radically
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changed. So I don't know how long she
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spoke for. It was very got a sense of who
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she was a plus in front of a jury.
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Good Lord, she I don't know if I mentioned she was African
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American woman and I did mention the, you know, the bad she
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wanted to get out of the life and her husband's there and he
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was a janitor on the railroad cars.
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So she was the major bread runner for the family.
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So Bettinelli turns to the plants.
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Lawyer. You have anything you like that?
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No, we're good then. So then it's my turn.
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So I never met her. And I said missus so and so I,
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you know, my name is Clement Glenn.
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I'm a lawyer. I'm representing Sears.
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I said our driver was an idiot. We fired him.
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That doesn't do you any good. So I'm here for two reasons.
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The first reason is to see if I can help resolve the case.
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And I'm good at evaluating cases.
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I know, you know, what we as lawyers do is try to figure out
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what's the risk in the case, What's it worth it if it goes to
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a jury? And I'm pretty good at that.
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And I said, and the other thing is if we can't get it done today
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and we have to go to trial, then I would try the case.
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And I'm pretty good at that. And I said, I've watched you and
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I can deal with your tears in the courtroom.
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And I've done that before because tears are real and they
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have to be respected. But I'm OK with that.
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I said, but I don't know how I'm going to deal with your smile.
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And I meant it because she had she had this charismatic,
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wonderful, you could tell she was just a positive person.
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And then I started talking about, I've listened to you and
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I've learned something about who you are, you know, even before
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today and, and you've gotten a lousy deal here.
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But I'm not sure there's another person around who would continue
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to achieve Despite that the way you will, in my opinion.
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And what you need is to get this behind you feel like you're
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safe. And then I think you're going to
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really, you know, you're going to do as well as anybody given
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your, the hand you've been dealt the whole time I'm talking to
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her husband is gone. He's naughty.
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And he said, you know, he's, you can see, he said he know, he
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knew I figured out his wife and he was, and he liked me for it,
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you know, he. And so we settled the case.
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I don't remember how much. And the lawyers, I was friendly
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with those lawyers from before and I, they came up to me and
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said the 1st 10 minutes that you spoke, you settled the case, you
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validated her, she saw you were a human being, you know, all
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that stuff. So I, I, I, I just think it's in
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the injury world, the demonization of plaintiffs and
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the demonization of plaintiffs lawyers and fight, you know, the
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demonization of defense lawyers is kind of completely
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dysfunctional. And besides the point, what,
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what you've got to do is you've got a human situation and you
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deal with it with some sensibility and civility and
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compassion. Does it show you're weak if you
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have compassion or does it show you're strong?
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And that's why I told her what I told her that, you know, I'm,
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I'm not afraid to, to go to trial with you.
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I will go to trial with you if we have to, but we don't want
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to. And so I'm, I'm giving her both
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messages. I've said, you know, when
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younger lawyers, they'll come in and well, you know, I got to.
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I'll just say, look, liability may be a stretch in this case,
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OK, this person has suffered this injury.
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Think about it in terms of your family.
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That's your wife, your brother, your son, your sister.
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Think about it not are you angry at somebody?
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But how is it going to change the family dynamic that, you
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know, there's there's a problem that wasn't there before.
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It's got to be dealt with. It changes everybody's lives.
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Who has contact with that person?
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So anyhow, I think that's one of the reasons I like personal
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injury cases and I as a result, I've made friends, in some cases
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close friends with, you know, some of the really best of the
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plaintiffs bar because they know I'm not going to play the game.
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1 And I will say that it is both more enjoyable to practice with
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people who engage that way the way that you're describing, and
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far more dangerous. The Flat Earth defense lawyer
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does not tend to do anywhere near as well as somebody who
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respects the person who's been hurt on the other side.
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16:19
dot Law. I tried a case of Martinez some
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years ago. The woman was a toll taker on
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the one of the Vienna Bridge, I think.
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And DuPont, who I mentioned was a good client of mine, had a
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pipe break and little, little chlorine leak out.
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And chlorine is heavy and it just doesn't diffuse right away,
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you know. So the cloud reached her in her
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tollbooth and she sued, said she had horrible injuries to her
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airway. She was a fascinating case
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because I, you know, we got all of her past medical records and
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they were literally 5 feet high. Not from this episode per SE,
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but from life. And she was a person who was low
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socioeconomic. She had, you know, we're all
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amateur diagnosticians, right? But I think she had severe self
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esteem problems. What particular axis she was on,
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I don't know, but she would find in comfort in doctors, these
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important educated men usually, but women too, in her case, were
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paying attention to her. That made her feel good about
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herself. Yeah, it was really a a tragic
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thing because you'd see some minor presentation and it gets
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worse on the next report and worse and worse and worse.
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So obviously it's a case in which if you release chlorine,
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even if whatever the case may be, it's a case where you're
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going to try to settle. And we did.
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And we tried to settle it for significant payment.
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And her lawyer was he was, he was not somebody I made friends
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with. He, he was, he was just like
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everything was, you know, traps and gotcha and, you know, So
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anyhow, we go out and tried the case.
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And I, I guess I should tell you one more fact that it was a
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fascinating and lucky part of this case.
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I got remember Sanders who used to sit in Discovery and Contra
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Costa, Judy Sanders. So Discovery, when I got the
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case again, a long story, the discovery was closed and I saw a
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hole that hadn't been done. And one of her affectations or
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symptoms was that she would talk to you and she'd say, Mr.
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Cooper, good to meet you. And her voice would just go to a
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whisper. And because she had has a legend
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airway injury that was devastating and God, the legal
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system didn't treat her fairly. There was a doctor that
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pulmonologist, she's very well known in asbestos circles who
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had prescribed massive doses retained by the plaintiffs
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lawyer, massive doses of Prednisone, so massive that she
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was hospitalized with a psychotic break and she had an
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embrittlement fracture on her foot because as you probably
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know, Prednisone take take your bones apart and that didn't heal
19:36
for a couple of years. She got it pinned and she was
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just, you know, the. And so anyhow, she was just
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being abused by this system that we work in which the top
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plaintiff slides just don't do you know, they, they don't play
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it that way. They don't have to, but they
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don't play it that way. So I got Sanders to.
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Because of us, he'd played a game, and I pointed out the game
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he played. And so she got pissed and she
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reopened Discovery. And I had a guy named Doctor
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Herbert Dido, who's now dead at UCSF.
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I got permission to have him do an examination of her vocal
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cords with a little camera while he tested her, and he videotaped
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her vocal cords as he tested her.
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And in the test, first thing he did is he had her read a simple
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paragraph. The red fox went over the the
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green grass down the hill and came.
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So she read just like she talked.
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The next part of the test, they put earphones on and they give
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delayed audio feedback. So she's like a deaf person.
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She's not hearing real time, so she can't modulate her voice.
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The red fox went over the green hill and got the ball perfect
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and, and each time you can see the vocal cords going in, you
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know, all this stuff. And Tito was a character.
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I, I shouldn't and I won't. In this, he had an alternative
21:03
explanation for what had aggravated her throat.
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But he was a brilliant guy who had treated Pavarotti.
21:11
He had invented procedures. You know, he was legendary, but
21:14
he was a he was a character. So anyhow, we go to trial, we
21:19
get a defense verdict. You know, my goal was to beat
21:22
the 998 and, and which was substantial, and we get a
21:28
defense verdict. The jury just loved us.
21:33
And among the things they feedback they gave us is like a
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group of them stayed for well over an hour to talk.
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You know, nowadays, I don't know what your experience is.
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A lot of times jurors just don't want to talk, you know?
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They do seem to drift off. Yeah, and judges tell them you
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don't have to talk to the lawyers, but if you want to, you
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can. And Muslims have watched them
21:54
enough. But anyhow, this one juror says,
21:58
oh, we felt you were the only one in that courtroom who was
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looking out for her. Interesting.
22:07
Because in closing argument, I said, you know, she's been
22:10
through hell and she shouldn't have been because the process
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has put her through hell and she needs to get this closed.
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She needs to know she's OK because what she had diagnosed
22:23
was a somatiform disorder. You're you're saying to a woman,
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you're crazy. You know, it's a dangerous
22:30
defense, but medically it was there, you know, you're
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hysterical and that kind of thing.
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And that was why the medical records were the way they were.
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Everything became bigger than it was.
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And it was tragic. I mean, it was tragic for her.
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But that again, was a case where I was absolutely genuine in what
22:52
I was telling the jury. And it really, I was outraged by
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her lawyer and what the system had done to her because she came
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out of it way worse than she went in.
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What you really needed was counseling.
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You know, somebody can work her through it.
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And I don't know how I don't know enough about it to know
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what they do with some metaphor. 1 Funny.
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I mean, yes, trial. Ours is, you know, when we do
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mock juries and you see what how the reasoning process of jurors
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sometimes like, holy crap, that's scary.
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But we had we had Barbara Zeniga was our judge and in this case
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and she did the most thorough civil, well, dear, I've ever
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gone through. We took days to pick a civil
23:34
jury days. You know, if there was anybody
23:37
with A cause thing in the chambers, she didn't want to
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cross contaminate the jury or yeah.
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So it took a lot of time and nobody ever asked about do you
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know anybody with a somatiform disorder?
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I can't remember exactly why. And when I'm talking to the same
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group of jurors afterwards, one of my biggest fans there, she's
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this one. You remind me of Tony Larussa.
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The way he manages the A's, the way you moved in the courtroom.
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It's like, OK. And so there's two women jurors
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together and one says, oh, you know, she was like pointing to
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the other jurors. She was like a, an expert
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witness for you in the jury room.
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She has a sister with a somatiform disorder.
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She was able to tell us all about it.
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Oh wow. Talk about absolute blind luck.
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Yeah, what's, what are the odds of that?
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But it was probably a big part of why we were able to convey
24:32
that concept because it's, you know, you got somebody in the
24:35
jury and say, no, this is real. I've lived with it.
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I got a sister who does it. So.
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One of the things you mentioned is that most of your clients at
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this point, with the exception of that one carrier are self
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insured. How is it different in terms of
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the reporting, the information, the engagement that you do with
24:55
that kind of a client? Well, you know, even with the
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insurance client, I said as a condition of me agreeing to work
25:02
with them, I will not write those freaking monthly reports.
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I won't do all of you know, I gave them a list of things I
25:10
wouldn't do. Plus I told them I wouldn't work
25:11
for their rates because, you know, in the role I'm in,
25:17
because a lot of times we, we, we do take over cases, not just
25:21
because not monitoring, but we were asked come in and take it
25:24
over the this person is brain dead.
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And it's really fascinating because in the insurance defense
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bar, just my anecdotal observation, they range from
25:33
really good trial lawyers and smart people to are you kidding
25:37
me? You know, there's a whole
25:38
segment of are you kidding me? And I, you know, this model that
25:42
I've seen time and again where some really junior lawyer or
25:45
lawyers work the case up and then the, the, you know, the
25:49
trial lawyer comes down from Mount Olympus to try the case.
25:52
I can't do that. I got to be involved at every
25:55
level. I want to see the witnesses and
25:57
all. That I'll push back on that for
25:58
a second, because if you're taking over a case from somebody
26:01
where the carrier has lost faith, I mean that's, that's
26:05
even worse than getting it from a junior association.
26:07
Yeah, yeah. I don't want to ever be
26:09
understood, no matter who looks at this as, as saying something
26:12
that's a general generalization of plot applicable to all the
26:17
insurance defense lawyers. There's some terrific ones, but
26:20
too often there's a model where the terrific ones are really not
26:24
handling the case until the end. And I, I don't like that.
26:28
So I don't do any of that stuff. But, and I tell them that one of
26:32
the reasons I won't do it is not because I'm a prima Donna, but
26:34
we're real time reporters. I've always understood it's not
26:38
my case. Whoever the client is, it's
26:40
their case. I'm, I serve at their pleasure.
26:43
So I like to keep their pleasure high.
26:46
And so, and I do it. I really just apply the golden
26:50
rule. If I'm a client, what would I
26:52
want? And I, I, I'd want no surprises.
26:55
If you want me to review something, give me some time.
26:57
Don't tell me it's due tomorrow at 10.
27:01
Don't make any big decisions or commitments unless I'm in on it.
27:05
It's my case and so forth. And so I do I just apply that
27:10
with the client, regardless of whether they're happening in the
27:13
one instance to be the insurance company or self insurance,
27:17
they're going to know the case as it's going.
27:21
And with e-mail, of course, it's, you know, it's simple to
27:26
do that. You can, you can BC them on a
27:29
communication of the case, whatever you could, you're,
27:31
you're able to give them. And nobody's ever pushed back
27:34
and said too much, You know, don't just call me when there's
27:37
a decision to be made. People like to know what's going
27:40
on in their case. Putting it a different way,
27:42
they're it's astonishing even to this day how many lawyers think
27:50
I'm in charge, leave me alone. You can't do that.
27:54
The client is the client is king, queen, emperor, whatever.
27:59
And let them tell you too much. If they do, then OK, then you
28:04
modify it. But I just my default position
28:06
is I want them involved in case make case decisions, etcetera.
28:12
And you know, it may be that any given client doesn't have the
28:16
sophistication to make the judgments that you have to make,
28:19
but you still as a lawyer can explain it and say, you know,
28:23
this. We could do AB or C here.
28:25
I recommend C here's why. Are you good with that?
28:30
That's OK. I think it's the same regardless
28:33
of whether whether they're a carrier or not.
28:35
It's just that the carriers themselves are institutionally
28:37
incapable of agreeing with people like me, except this one
28:41
carrier has done it. And so I keep working.
28:44
The other thing is if they keep turning the robot loose on my
28:47
bills so that they disallow, you know, that kind of crap.
28:52
And then I have to appeal. And I've never lost a penny
28:56
because every appeal thing, I go to the lawyer, you know, the,
28:58
the adjuster and I say, hey, would you just tell them to
29:01
approve this and they approve it.
29:03
This is crap. I don't want to spend my days
29:05
doing that or have my staff do that.
29:07
It's just so wasteful. Time value money.
29:11
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29:14
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