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$9.57M School Bullying Verdict (Part 1): Harassment & Attack at New Haven Unified · Coopers' Code

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This recording is dedicated to the memory of Sean Stout.
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Sean was a client for those who who are familiar with the spicy
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burger case. He was the individual who was
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the subject of of that case, the one who who ate the burger and
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ended up getting very badly injured.
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I learned today that Sean passed away on July 31st of this year.
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So this is being done your memory, Sean, we're wishing you
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the best. Howdy, and welcome to the show.
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Cooper's Code focuses on legal issues and notable
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practitioners, distilling wisdom so we all achieve the best
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results for our clients. I'm Miles Cooper and I'm very
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excited for this after action review where we'll be sitting
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down with Megan Burns and Emily Dom from Mirador Law.
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We'll be discussing their path to a successful verdict in Maria
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Guadalupe Jimenez and Esmeralda Gonzalez versus New Haven
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Unified School District. In the school incident, the
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defense made formal offers prior to trial of 115,000 to Maria
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Jimenez and 50,000 to Esmeralda Gomez.
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The jury's verdict was $9,573,616.00.
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Megan and Emily will tell us how they achieved this record
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verdict. Welcome to the show, Megan
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Emily. Thanks for having us.
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I'm really looking forward to sitting down and, and getting a
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better sense as to how this came case came together, what worked,
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what didn't work and, and what have you.
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So before we do that, can can you give us just a little bit of
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a sense of, of your firm, who you are in terms of, of your
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practice and, and, and how you found yourself doing this kind
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of work? Well, thanks for having us,
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Miles. We really appreciate the
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invitation. Our firm is Mirador Law and
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Mirador means a turret or a tower with an extensive view.
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And we recently named renamed our law firm about a year ago
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and was very intentional because the way that we practice law, we
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believe we have strategic vision for cases and that comes from
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our deep experience as trial lawyers.
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Both Emily and I started our legal career as public defenders
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and we have between us well over probably 100 trials under our
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belt, a lot of them representing indigent clients facing charges.
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And, and, but also we've transitioned now to do civil
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trial work and we really enjoy it.
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But that's what Mirador Law means.
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That's what we're about. We, I think have a unique
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perspective because we're a women owned, LGBTQI owned law
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firm here in the Bay Area. And so I like to think that that
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gives us a unique vision of how to look at trials.
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For me, I don't know that I saw myself doing plaintiffs work in
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my, in my future. You know, I, I think I, I, I
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started out of big law, big, big and bigger.
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I was doing corporate finance in Hong Kong my first year out of
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law school that would, did not lift my heart to the highest
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heights. And then found my way to
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litigation and then found myself to the public defender's office
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in San Francisco and thought that was going to be my forever
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home. And then I hung out a shingle
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and within a year I joined up with Megan.
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And here we are. And I have to say, even though I
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don't think I would have predicted Plaintiff's work in my
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future, I'm sure awfully glad it found me.
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And it's been a real joy. What I will share along these
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lines is in an era where a lot of civil cases are being
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settled, it's nice to see people making the the cross from
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criminal to civil with that that trial experience.
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We could go down a rabbit hole on that too.
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There are far too few criminal cases getting tried as well, and
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so I just think trial practice in and of itself is becoming
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perhaps a little too rare and it is just as important as it
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always was. Well, it may be a rabbit hole if
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it if it won't take us off too far for for a minute or two.
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That would be interesting to hear your perspective on that.
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Well, I mean, I think you know what it, it's been a big issue
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and, and so I still practice, half of my practice is still
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criminal defense. And so, you know, it has been a
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very big topic amongst the criminal defense bar for
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probably the last decade or more.
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Martine Sabelli at the he's a federal practitioner and an
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excellent attorney has really taken up the charge on this.
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But, you know, there is a trial penalty, there's a trial tax for
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criminal defendants that, you know, if you don't take the
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deal, the judge is going to give you worse after trial.
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There is some, you know, some people would say some of the
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courts are kind of complicit in that.
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But you also have, I think, a pattern of overcharging, you
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know, to essentially bid the defendants down and the the
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costs, the risks to go to trial are are a lot.
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And it takes an incredibly brave person to take a criminal case
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to trial. You have to be incredibly
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resolute to stand up against the weight of the government.
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And when somebody tells you what your maximum exposure is on some
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of these very serious cases, it can be terrifying.
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Even though you may have the better case, you may be
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factually innocent even, or what the government is asking for in
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a settlement is in no way, shape or form commensurate with your
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culpability, but you know it is. So it's really hard.
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It's really hard to get cases to trial.
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I'm interested in the in the having the dual practice and,
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and part of the reason I'm interested is that used to be a
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fairly not uncommon format where there were people who had both a
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thriving civil and criminal practice.
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It seems like it's gotten to be very rare.
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And when I've asked people about it, when one of their comments
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is that it's really challenging to manage the criminal calendar
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in terms of the demands and also have a civil practice.
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And so I'm curious how how you've been able to make that
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work. Well, we're still figuring that
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out. I'll be frank.
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I mean, it is hard. It it really is hard.
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You don't have the control over your calendar and criminal cases
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the way that you want. You know, you, you can get a new
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case and your client's in custody and you got to be in
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court in an hour or you know, you say, Gee, judge, that day
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doesn't work for me. And the judge says, well, sorry,
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we only hear these motions every 3rd Tuesday under a blood moon.
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And this is the third Tuesday under the blood moon and we will
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not be adjusting the court's calendar for you.
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And you have clients who have speedy trial, speedy preliminary
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hearing rights. And so that really constrains
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your ability to control the speed of your cases.
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So it can be challenging and I think that's why it's
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challenging to do as a solo. I couldn't imagine it.
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And, and that's why I think one of the things that enables us to
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do it, it's that we have each other and we have the other
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lawyers at this firm and the professional staff at this firm
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to help us manage that. I I think I couldn't imagine
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doing it just by myself. And I'll just add to that, what
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Emily says is 100% correct. I echo everything she said about
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the fact that sentencing laws for criminal defendants have
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gotten higher and higher as the years have progressed.
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And so there is such a risk of going to trial in a criminal
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case that less people are willing to do that.
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And so the results of that is more innocent people taking
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deals that they shouldn't take because they don't want to face
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life in prison in front of 12 people they've never met in
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their life. I mean, that's really the kind
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of case that we end up getting calls about.
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Those are the mistakes at issue for our clients.
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And I agree with you, Miles, that there used to be a lot more
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law firms that did both criminal defense and plaintiff personal
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injury. And I'm not aware of another law
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firm in the Bay Area that actually does those two practice
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areas like we do here at this firm today.
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And I think from my own perspective, part of that has to
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do with the complexity of trial work that has happened over
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time. It used to be, for example, on a
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criminal case, you could have a homicide and that case might
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take a week to go to trial and there would be a lot less
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discovery. The same kind of issues that,
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you know, we face in the civil cases with just massive amounts
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of discovery, a lot of audio and visual discovery, you know, body
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camera footage in the right kind of case, these kind of things.
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It's just a much more complex practice to do trial work,
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whether it's criminal or it's civil.
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And so it's really hard I think, to manage that.
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That's why, you know, we try to have more of a boutique practice
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where we're not taking every single criminal case.
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We're being much more selective about the people that we can
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help on the criminal side of the practice.
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And we're kind of doing the same thing on the plaintiff personal
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injury side. You know, not every case is
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going to go to trial, but we as dyed in the wool trial lawyers,
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we evaluate every single case, whether it's on the criminal
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side or the plaintiff personal injury side, as if it could be a
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trial case. And that's, I don't know,
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another way to do it. That's just the way my mind
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works. And I know Emily is the same.
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On the civil side, have you found that there are types of
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cases? And part of the reason I'm
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asking this is, is we're here to talk about a particular case.
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That's a what I would euphemistically describe as a
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school site incident. Are there types of cases that
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you've found to be more in your, in your wheelhouse or are you an
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an all comers? I'm a trialer.
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I try it because I'm good kind of firm.
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You know, maybe I can take the first bite at that question.
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I think that because we do another practice area, we are
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very conscious of trying to stay in our lane.
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So there are certain sorts of plaintiff personal injury cases.
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We don't typically take products liability, medical malpractice,
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some other kind of specialized areas.
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We are going to refer those out to friends and colleagues that
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we know are really good at what they do, but.
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That's not what we do. We have more of a global kind of
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run-of-the-mill Pi practice is what I would say.
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But because we are real trial lawyers, we do like a challenge.
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And so there's always an exception to the rule.
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You know, I am about to put a case in litigation right now
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that's a medical malpractice case because it's the right
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thing to do for this client. And I know that I have the team
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in place in that case to really be successful.
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So, you know, I think it just depends.
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We're always willing to look at a case and we're always willing
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to take out a challenge in the right set of facts.
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I think that's what I love about plaintiff personal injury work
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as I feel like I'm always learning every single day.
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And it's not to say that I don't feel that way being a criminal
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defense practitioner, although I'm not handling any criminal
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cases any longer, but I think it is the the field is so much
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diverse. There's so many different sorts
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of legal issues that come up. It's just the scope is bigger.
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And so I, yeah, I like the challenge, and I think Emily
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does as well. Yeah.
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I think that's all dead true. Could I ask one of you to
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perhaps set the, the stage our, our audience doesn't know
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anything about this, this incident.
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And before we we dive into how you built the case and, and the
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trial itself, would one of you like to or, or both of you like
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to help give us a little bit of an understanding of what led to
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this incident? So the case of Maria and
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Esmeralda was a case that came to our firm through a referral
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through my network. I do happen to speak Spanish.
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And so to this day, Maria and Esmeralda don't know who gave
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them my name, but somehow they got my name through the Latino
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community and they reached out to me about this incident.
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And basically what happened was about in a series of killing
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events that had taken place at James Logan High School for
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approximately a year at the time that I met Esmeralda and her
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mom, Maria, Esmeralda had been a sophomore student at James
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Logan, and she had been bullied by another female student.
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The school knew all about it. They had never notified
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Esmeralda's parents as to what was going on.
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Eventually the bullying escalated to the point where
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Esmeralda was incredibly worried for her own well-being and
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finally self disclosed to her parents.
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And on that day, Maria, Esmeralda and some other family
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members went to the school to try to meet with the principal
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to really get intervention into what had been occurring.
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And as they drove into the parking lot at James Logan High
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School, the bully and a number of her friends, along with the
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school security guard that was a family member, at least a family
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connected person to the bully, not a blood relative per SE, met
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them in the parking lot and immediately when they got out of
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the car started attacking them. Esmeralda was protected by her
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stepfather who threw his body over hers while multiple other
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students were trying to kick and punch her.
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When Maria tried to intervene, she was pulled over away from
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the group and was primarily attacked by one person and
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beaten unconscious. She really had some serious
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facial injuries that later required surgery.
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And you can imagine from an attack like that there was a
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very real and visceral experience that they both had
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with post traumatic stress disorder.
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And I can go on about the damages, but that was
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essentially what the case was about, was that.
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Megan's set the table quite nicely for the facts and but
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there's one that's missing and that was during the time that
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this beat down was taking place in the school parking lot within
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shouting distance of the principal's office.
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Maria had just had a baby three months prior and that baby was
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still strapped into the car seat.
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Still strapped into the car. So while she is watching her
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eldest daughter and her husband being attacked by this bully and
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her friends, and then while she herself is being attacked, she
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has absolutely no idea whether that baby is safe or not, what's
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happening into it, anything. So that's that just that other
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fact that just sort of takes how terrifying this was.
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I think it makes it really real. If if, if you have even an ounce
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of compassion and you you'll know how scary that was.
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I'm obviously a plaintiff's lawyer, but even being outside
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of being a plaintiff's lawyer, I would say at the outset it this,
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this, it sounds awful. What kind of a defense could
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justify the relatively low numbers that the defense team
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was offering in this case? Well, it didn't.
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OK. You know, I think that's exactly
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the story of this verdict is that there wasn't a defense that
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could justify the low numbers that they are offering.
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And, and, you know, really kind of boiled down to a lot of
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denial on their part. You know, we never know.
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We never knew. How could we know?
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They really fixated on the fact that Esmeralda had not
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affirmatively made a a report of bullying, which I think is is
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not, does not track the facts particularly well.
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Because what we do know is that there was an incident early in
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the year prior in which it was witnessed that she was getting
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bullied by this girl. And of course, you know, what
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was the whole beef about a boy, right?
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You know, the, the, the boy that the bully liked ended up having
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an interest in Esmeralda. And so therefore, Esmeralda
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became, you know, a lightning rod for this girl.
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And but they they claimed, you know, despite all of the facts
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that they had no knowledge, the district had no knowledge of
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this. And then they're sort of
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secondary argument was, well, boy, oh boy, this just sort of
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popped off so suddenly. This was also just emergent and
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it and it just happened all of a sudden.
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And therefore how could we have known?
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How could we have stopped it? There's nothing we could have
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done. And hey, even your clients said
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that this was a surprise to them that this happened.
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So if it was a surprise to them, it sure certainly was a surprise
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to us. IA 100% agree with Emily, and
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the case law in California from the Supreme Court has been very
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clear for many years now about that dual duty to protect and
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control students and other people on campus for whom the
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school has a duty to protect. The district had just an
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incredibly myopic view as to what the law required them to
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do, and they never accepted kind of the basic one book laws to
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what their duties were on campus.
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And I think that that fundamentally was part of it.
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I think that they also tried to say that this incident was such
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a surprise. It just happened all of a
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sudden. How could they protect?
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How could they control? They completely ignored the fact
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that there was a school employee that from our perspective was
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actually part of the incident. And they didn't factor in at all
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how that would factor into how the jury would see this case.
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And I just think they totally misjudged it.
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You know, one thing we were talking about a little bit
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before Miles about what kind of law we do here at this firm.
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I think one of the ironies of this case is that Emily and I
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had never done a bullying case before in our career ever.
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Full stop. This was the first bullying case
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we had ever handled. I'll say something out of both
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sides of my mouth, which is we stay in our lane because we do 2
18:28
separate practice areas. But I'm going to speak out of
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the other side of my mouth to say when I met Esmeralda and I
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met Maria, I said I have to help these people.
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And I don't know all the laws about bullying and what schools
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responsibility are, but I'm going to learn them.
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And that's what we did with this case.
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And one of the things that we very smartly did was associate
18:50
in another attorney on this case, because I've got to give
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Charles Delario props. He was the 2019 California
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Appellate Lawyer of the Year, and he has been instrumental in
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crafting the law on bullying and school's duty to both control
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and protect students and others on campus.
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And so we brought Chuck in as part of our team from the very
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beginning when we filed the complaint.
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And he was there with us throughout the litigation
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process, including, you know, some very wise decisions he he
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helped us form with regard to eliminate motions and which ones
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we were conceding and which ones we were going to fight.
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So that's always really important.
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If you're a good trial lawyer and you don't know the law in an
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area, bring somebody else in that's a specialist in that
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particular practice area to really help you.
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And Emily and I would not be sitting here today without
19:49
Chuck's assistance with this case.
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One of the takeaways I'm hearing from you is if it's outside of
19:54
your wheelhouse, bring in subject matter expert either as
19:57
a consultant or as a Co counsel in some fashion to help make
20:00
sure that you're able to deliver and not make missteps. 1000% You
20:05
know, it's like, how many times do we tell clients if you
20:10
represent yourself, you have a fool for a client, right?
20:13
Like I think the same is true of attorneys when you're at small
20:17
firms and you are looking at a case and you can say, look, this
20:20
is a horrible tragedy. I know that there's a case here,
20:24
but it's not a particular area of law that you've ever handled
20:28
before. Make sure that you're talking to
20:30
the right people. I think that's one of the things
20:32
that Emily and I are really good about.
20:35
We have no ego in this. Like we're more than happy to
20:38
say, you know what I don't know about this area, the law or I've
20:42
never dealt with this aspect of accident reconstruction or
20:47
whatever it might be. And we phone a friend.
20:50
We're always phoning our colleagues, whether it's, you
20:55
know, experienced criminal defense practitioners or our
20:58
fellow trial lawyers and plaintiff personal injury work
21:02
or other or appellate specialists.
21:04
We want to understand who knows this area of law better than
21:09
anybody else and we want to pick that person's brain.
21:11
And I we constantly do that in our practice.
21:15
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Cooperstown law. I want to put a pin in the
21:31
motion, eliminate strategy and and what to go forward with and
21:35
what to concede because partly because I'm I'm a chronological
21:37
thinker, but that sounds like a very important piece in terms of
21:42
maintaining the verdict post trial.
21:45
So we'll we'll get there. I did have a question about the
21:50
security officer and and whether that that individual was in
21:55
course in scope at the time that all this went down or was was
21:58
that contested? No, I don't think it was
22:00
actually contested. I mean, he he was a very
22:04
interesting character and an empty seat that trial.
22:07
We can talk about the reasons for that later.
22:09
But so this is a security guard who had a non blood familiar
22:16
relationship with the bully. He he was a play.
22:19
I mean, if you know the term play uncle, he was a play uncle
22:21
of her. She called him uncle.
22:23
They very close with the family. And so he had just on the day of
22:29
the incident, had essentially allowed the bully and her
22:34
friends to leave a classroom, go out through a gate that they
22:38
weren't supposed to be going out because school's in session, go
22:42
into the parking lot area in front of the principal's office,
22:46
which is an off limits area when school is in session.
22:50
One of the bully's friends who helped with the the beat down
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was a non student. So he and, and somebody that he
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likely also knew and so should have immediately recognized that
23:00
this person should have been on campus at the 1st place.
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And then he took this whole group out to the parking lot
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where he could see and they could see.
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And he knew that they had had a beef with these, with Esmeralda.
23:14
And literally almost like a master of ceremonies in my mind,
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brought them to the parking lot, you know, almost like in corner
23:23
#2 you know, we've got and, and he just brings these feuding
23:27
group together and watches it. He just watches it.
23:33
He doesn't do anything to stop this fight.
23:35
He doesn't do anything to intervene.
23:37
You know, he doesn't, you know, call for the cavalry.
23:40
And so he's kind of there like a, a, a potted plant, you know,
23:47
abandoning his duties, but still very much in the course and
23:50
scope. That seems like a bad fact.
23:53
It is a very bad fact for them. I might just also add that not
23:58
only was the fact that he was in this course and scope of his
24:02
employment not contested, but the trial lawyer for the defense
24:08
actually stipulated to that fact at the trial.
24:13
And so that is also a very important aspect of how this
24:17
case is being considered on. Appeal.
24:19
When you say the defense lawyers stipulated to that fact, how is
24:25
that factoring into the appellate side of things?
24:27
Well, because he was an active participant, there's a
24:31
difference from an appellate standard as to whether you
24:34
failed to act to protect and control or whether there was an
24:40
employee of the school that was an active participant.
24:43
There's actually some different case law on that.
24:45
And so because they stipulated that he was in the course and
24:49
scope of his duties, and because the appellate court considers
24:53
all the facts in the deference to the verdict, then our whole
24:58
theory of the case not only was that the school was negligent,
25:03
but that he actually was an active participant in this case
25:07
because he violated all these different school rules and
25:10
actually bringing the the bully and her friends directly to
25:15
where Maria and Esmeralda were at.
25:18
And we didn't believe that there was an accident, whatever his
25:21
motivation was, which we never were able to know because we
25:25
weren't able to depose him in the process.
25:29
It made no rational sense to us as trial lawyers that he wasn't
25:33
actually a part of this. And that is the facts that the
25:36
court on appeal is considering is a stipulation from opposing
25:42
counsel that he's in the course and scope and his direct
25:44
involvement, not just the the the failure to act, which is
25:49
just different. Do you have an understanding as
25:52
to why the lawyer stipulated? No, I don't really understand
25:57
why she made that particular choice to stipulate as to him
26:00
being in the course in scope. I think ultimately, you know,
26:05
Emily and I have tried a couple cases together and whenever
26:09
Emily and I actually get to try cases together, it's like the
26:12
best trial experience I've ever had in my life.
26:15
And but we've had a couple cases where we, Emily's described them
26:20
as the Rorschach test. Like you see the case one way
26:23
and the opposing counsel sees something totally different.
26:26
And I just think that that's what this case was.
26:29
Megan mentioned the term myopic and I think that is so dead on
26:35
in defense counsel's view of this that that she really just
26:38
threw out the pretrial proceedings.
26:40
But and particularly at trial, really tried to shrink the
26:44
universe of what this case was about to just those seconds,
26:51
minutes of the attack itself. And just really, really wanted
26:55
to ignore, deny everything that had been leading up to it in the
27:01
year prior. And so, you know, I remember I,
27:04
I did the liability portion of the closing argument and I
27:07
remember telling the jury, like, you know, this is a choose your
27:11
own adventure of liability. I mean, whatever door you go
27:14
down, we are going to end up at the same place, which is that
27:17
the district is liable. And as much as they want to
27:20
just, you know, have pinhole vision and just look at this at
27:24
just that moment, we can do that.
27:27
We can look at it as just that moment, but that moment's not a
27:31
particularly good one for the district.
27:33
It doesn't. It doesn't.
27:34
It's not a get out of jail free card because again, they have a
27:37
district employee who is participating in this, who is
27:41
enabling this, who is violating about 6 different policies and
27:46
rules that are designed specifically to keep people safe
27:50
on campus and to avoid incidents exactly like this.
27:55
But you don't have to be so narrow.
27:57
You don't have to close your eyes to what has been happening
28:01
for the year prior, which is that this student has been
28:07
bullying, harassing, terrorizing Esmeralda for the better part of
28:13
a year. And there have been flashpoints
28:16
at which the district was well aware of it.
28:19
Whether it's teachers hearing the screaming and yelling and
28:22
passing, you know, just days before this, you know, the
28:26
bullies screaming out to her across the essentially the, the,
28:30
the open air quad area over the lunch period and, and shoving
28:33
her, she's having to be taken away from her during lunch
28:37
hours. And, you know, and, and I think
28:39
the district lawyer lost a lot of credibility during the trial
28:44
by denying what we could all see in front of us.
28:47
There were these notes from, I think it was the November
28:50
incident. It was one of the lunchroom
28:51
incidents where the bully had been, you know, getting in
28:55
Esmeralda's face, making quite a big scene of it.
28:57
And school security guards had to pull her away and their,
29:01
their teachers intervened. And there was a note about how
29:06
the bully had anger management issues and they'd recommended
29:09
counseling and she was not willing to engage in it.
29:14
But they misgendered her in the, the notes.
29:16
They called it a, they referred to him, the bully as him.
29:20
And lawyer was sort of fixated on like, Oh yeah.
29:23
It said to him, it certainly couldn't be this incident.
29:27
This must be some totally unrelated incident, except for,
29:30
you know, you have our client testifying about it.
29:33
Our client's friend who witnessed is testifying about
29:36
it. The whole context of everything
29:38
that's in that note is clearly about the dispute between these
29:42
two girls. And you want to hang your hat on
29:45
an errant pronoun. I mean, this is like, you know,
29:48
sometimes you get in our public defender days, I may have a
29:51
client who said, well, you know, they can't prove that was me on
29:54
the video. And I'm like, no, but you are
29:56
wearing hot pink pants. It's.
29:58
Like. You know, that's fine, but you
30:02
know, it's up to 12 people and it and 12 people got to buy that
30:05
story. And so I think like that was
30:08
kind of the approach was just like, again, I'm going to just
30:13
fixate on these these little tiny facts that are not really
30:18
actually helpful and and losing the bigger picture.
30:21
And I think she just lost so much.
30:23
I mean, that's my opinion. I think that that when you do
30:26
that as a trial lawyer, you do that at your peril and your
30:29
credibility with that jury is sacrosanct.
30:33
And the minute you sacrifice that, you sacrifice your clients
30:36
chance of a of a good outcome just and, and you know, I think
30:40
your own good reputation. Taking it beyond just your
30:45
opinion, did you have an opportunity to to talk to any of
30:47
the jurors post to see what their feedback was on on things
30:50
like that? We had a great jury, really,
30:53
really nice people. You know, we can talk about
30:57
Vaudir, if you want, in our approach to that.
30:59
But I would just say after the trial, our impression of who we
31:04
thought we had picked for that trial was totally borne out when
31:08
they stayed and talked to us. And these were good, earnest
31:11
people that actually wanted to do right by the school district.
31:14
You know, they really wanted to, in fact, told us directly they
31:18
were really looking for the district to give them some
31:21
evidence to help them out because nobody wants to.
31:25
And we don't want to get a big verdict against the school
31:29
district unless they really deserve it.
31:32
You know, I mean, you can't do these cases places without a
31:35
recognition that, you know, when you sue a school district, maybe
31:39
there's not more resources for teachers or, you know, staff or
31:45
equipment that they need for the school because it's going into a
31:48
lawsuit. And so the the jurors were
31:50
really open minded, I think when they started the trial of
31:54
listening to both sides and they were really looking for the
31:57
school district to explain to them how something like this
32:01
could have happened. And they were not negligent and
32:04
they just were never able to present that kind of
32:06
information. And that's what the jury's told
32:09
us that they were were really if there had been different facts,
32:13
if there had been better facts for the district, I think the
32:17
same group of 12. People would have been.
32:19
Perfectly happy to find against our clients, but those weren't
32:22
the facts of this case. The jurors were, they were, they
32:26
were great. They were really great, great.
32:28
And, but I think too had the district shown kind of some
32:32
empathy towards our clients and, and, and my perspective was that
32:37
that moment never came. And, and I, I think that that
32:41
was such a poor choice because we could see through the trial
32:48
and I sat closest to the jury in kind of our layout in this
32:52
courtroom. And, and I could see, I mean,
32:55
there were hell in Megan's opening.
32:59
There were jurors starting to cry during opening statements,
33:04
you know, and so they had a lot of the jurors had a lot of
33:08
empathy for our clients. That said, they also had a lot
33:12
of empathy for a public school district and they were, and that
33:16
was a huge issue. You know, we can, if you want to
33:19
talk about Vaudir and I can go into it more, but I did the
33:21
Vaudir and that was that was the number one issue.
33:24
And Vaudir was, are you going to be able to award full and fair
33:29
damages if, you know, this is coming out of a public school
33:32
district's pocket? And there were people who, you
33:35
know, passed that questioning, but you know, still had those
33:40
very valid concerns on that jury pool and are in the in the the
33:46
12. And, you know, I think had
33:48
somebody given them a bone, they would have taken it and that
33:52
number might have been very different.
33:54
I do want to go there. I, I think we should go there
33:57
now since it's come up a couple of times.
33:59
I want to take one diversion before we get there, which is
34:03
coverage and collectability. I don't do a lot of these types
34:07
of cases. So a question for you on that
34:10
side is, is this district money? Is it self insured retention?
34:14
Is there a policy in place? What are the deciders behind the
34:18
scenes? Because that that's a big number
34:21
for a district. So school districts, like most
34:24
public entities, obviously they can't have traditional insurance
34:28
in the normal sense of the word, but they have these pooling
34:32
organizations that essentially function like insurance
34:35
policies. And that's that's what the issue
34:38
is here. You know, I've done two
34:40
different public entity trials in the last 12 months, both with
34:46
successful verdicts for for clients.
34:49
And in both cases, the public entity had participation in
34:53
pooling agency. And essentially it acts just
34:57
like insurance where they have some form of deductible, unlike
35:02
insurance companies where it's a for profit.
35:05
The whole purpose of a pooling agency is to spread the risk
35:08
amongst many different public entities so that there's not
35:13
some sort of verdict that then, you know, bankrupts a school
35:16
district or bankrupts to some other form of municipality.
35:20
So it's really at this point it's us negotiating with the
35:23
pooling agency because the school district has met their
35:27
deductible already. And so it's really their
35:31
decision whether or not to can persist with the appeal or not.
35:37
I was going to ask this question at a certain point now, seems
35:40
appropriate. Was this the first verdict that
35:43
you had in terms of the public entity?
35:45
Yeah, yes. So do you think that the fact
35:51
that you had not had a background in these types of
35:54
cases factored at all into the under estimating you and
36:02
approach to the case from the defense side?
36:05
Probably and probably us under estimating how hard this case
36:08
was going to be. I think that probably flows both
36:10
ways, right? Maybe we didn't really know what
36:12
we were getting into and thank goodness we didn't.
36:16
But yeah, I mean, you know, I certainly nobody knew us then
36:23
and maybe even knows us now for being, you know, those lawyers
36:26
who take on those public entities.
36:28
So I'm I'm sure and and Megan, you can speak to it because you,
36:32
you, you were in the trenches pretrial.
36:34
I came in at trial. So she she saw first hand how
36:40
our our buddies on the other side of the table were
36:43
approaching us. Let me just say that I'm going
36:46
to use another public defender term, Miles, if that's OK.
36:49
A lot of our clients back in the day that we would be meeting
36:53
with late at night, sometimes too many times on the weekend,
36:57
charged with very serious cases in the county jail.
37:00
A common phrase they might use is Google my charges.
37:03
You want to know something about me, Google my charges.
37:06
And that basically means like, look at what I've done in the
37:09
past, you better watch out. That's kind of what that means.
37:13
And so I feel like like, yes, before this particular trial, if
37:19
someone Googled Emily and I's charges, they wouldn't
37:22
necessarily be as concerned. Maybe if they had looked more
37:26
carefully at how many trials we had actually tried, maybe that
37:31
would have given them more concern.
37:33
But I'm sure, you know, going up against an opponent that you
37:37
don't see, you know, a bunch of huge plate of personal injury
37:42
verdicts in their history that you think you can underestimate
37:46
an attorney. And anyway, so I, I, I, I think
37:51
that could have factored in. I don't think that's why this
37:54
case went to trial. I just really will go back to
37:57
the fact that I think this case was just the Rorschach test.
38:01
They saw the facts of this case and they thought, you know, no
38:05
majority of a twelve person jury is going to find a this school
38:09
district liable on these facts. And we just didn't see how they
38:13
possibly couldn't find them liable.
38:15
And those are exactly the cases that go to trial when the two
38:19
sides are oceans apart, and we were always oceans apart right
38:24
up through the verdict. You've referenced a couple
38:27
points that the security guard, you were unable to depose the
38:30
security guard and that there was an empty chair.
38:33
And I'm sure listeners are are wondering a little bit.
38:37
That's an interesting piece. What?
38:38
What's going on there? With regard to the security
38:41
guard, of course, we noticed his deposition at originally in the
38:46
litigation he had been separately represented by a
38:49
different firm clearly because the, you know, lawyers
38:53
representing the district itself probably saw the possibility of
38:57
a conflict of interest based on the facts of the case.
39:00
And when we noticed his deposition, we became aware for
39:03
the first time that he had some medical complications that did
39:06
not allow him to basically provide a deposition.
39:11
And so there was through a lot of the litigation it was unclear
39:14
whether he was going to get well, whether or not we were
39:17
ever going to have a deposition of him.
39:20
And he just, he had a medical condition that he never improved
39:26
enough to be able to participate in the litigation.
39:29
So we were never able to depose him.
39:34
There was some funny business during trial where the defense
39:40
attorney tried to get the court to introduce some audio
39:44
recordings from body camera footage of statements he'd made
39:48
to law enforcement and suggested that there was hearsay
39:50
exceptions for those statements of but they were unreliable.
39:55
And that's what the trial judge ruled is that they were ever not
39:57
liable. So the jury never heard anything
40:01
from the security guard. And again, just looking at this
40:06
from all sides. That might have been something
40:10
that, you know, the defense might have wanted to reconsider
40:14
in terms of taking the case to trial is the fact that they were
40:18
not going to have what really should have been their star
40:21
witness to defy on their behalf. Did the jury hear about the the
40:25
medical piece or did they just hear that this person was
40:27
unavailable? Just that they were unavailable
40:29
was the only information that they heard.
40:32
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40:34
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40:51
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