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what's happening in our world

Connecting the Jury to Each Other - And Your Case

Modesett Williams - Tuesday, May 09, 2017

At our shop, we spend a lot of time thinking how to connect with juries. We constantly ask ourselves, how can we tell our client's story in a way that resonates with the jury's experience? As we all retreat into our smartphones and become less connected to each other, though ostensibly connected to the world, finding that common ground is becoming more difficult.

Perhaps that is why Sebastian Junger's "Tribe, On Homecoming and Belonging" resonated with me. Junger asks, "How do you become an adult in a society that doesn't ask for sacrifice? How do you become a man in a world that doesn't require courage?" He answers his questions with, "Humans don't mind hardship, in fact they thrive on it; what they mind is not feeling necessary. Modern society has perfected the art of making people not feel necessary. It's time for that to end." I agree. A jury's experience at trial can and should be a way to make them "necessary" to society.

Junger goes on to describe human "needs" in a way that can be a call to action for a jury. "...human beings need three basic things in order to be content: they need to feel competent at what they do; they need to feel authentic in their lives; and they need to feel connected to others. These values are considered 'intrinsic' to human happiness and far outweigh 'extrinsic' values such as beauty, money and status."

How many of us are aware of how our world works? Are we connected to anything outside of our daily routine? Not really. Junger makes the point that we are "disconnected from just about everything. Farming, mineral extraction, gas and oil production, bulk cargo transport, logging, fishing, infrastructure construction--all the industries that keep the nation going are mostly unacknowledged by the people who depend on them most." Junger's solution: "When people are actively engaged in a cause their lives have more purpose... with a resulting improvement in mental health..."

When presenting your case, give jury members a cause, even if just for a week or two.

Modesett Williams Client Prevails in McLennan County

Modesett Williams - Monday, March 20, 2017

After a five-day jury trial, Jack Modesett obtained a $450,000 verdict against Senior Living Properties LLC d/b/a Jeffrey Place Rehabilitation Center based in Waco, Texas. Mr. Modesett was assisted by Vic Feazell.

The jury found Jeffrey Place negligent and grossly negligent in its care of Homer Byrd, who died a month after being admitted.

The evidence included testimony that showed the 79-year-old blind, diabetic resident acquired a toe infection that turned gangrenous, which led to his right leg being amputated just above the knee and, ultimately, to his death.

Jeffrey Place attempted to rebut this evidence with testimony that said the personnel followed the directions of the center's medical director and did all they could for Mr. Byrd, but the jury found that not to be accurate, particularly given their failing to promptly spot and treat the infected toe. Nurses claimed to have noticed the wound, but not until it had turned black, developed a foul odor and was 4 centimeters by 5 centimeters. The jury ruled this a breach of the ordinary standard of care and that it played a substantial role in Mr. Byrd's premature death.

The Byrd family was awarded the exact amounts requested by Mr. Modesett during his final summations of the wrongful death lawsuit. Though Mr. Modesett left the figure for punitive damages to the jury's discretion, one of the jurors said he would have granted the family more than the $200,000 settled upon if the decision had been solely his. The juror cited the evidence brought by Mr. Modesett as proving gross negligence occurred, saying, "There was a lot more that could have been done for this man, and it was just absolute refusal to see a problem that is blatantly obvious."

Modesett Williams, PLLC is a firm of board certified trial lawyers, based in Austin, Texas. Jack Modesett is Board Certified in Personal Injury Trial Law by the Texas Board of Legal Specialization. Walter Williams is Board Certified in Civil Trial Law by the Texas Board of Legal Specialization. They have tried cases in dozens of Texas counties and throughout the United States.

Modesett Williams represents a broad range of litigation clients throughout Texas and the United States. For additional information, please call Jack Modesett at 512.472.6097.

Jack's Take on the Bill that would Crack Down on Bad Nursing Homes

Modesett Williams - Tuesday, February 28, 2017

Read the Austin American-Statesman article about Senate Bill 932 here. The bill was filed by State Senator Charles Schwertner on Thursday, February 16, 2017.

Jack Modesett has spent twenty-five years representing patients who have suffered abuse in the long-term care setting. He feels that Senator Schwertner is to be congratulated for his work on behalf of some of our most vulnerable citizens, but he knows there is still work to be done in protecting these people.

The two agree that nursing home operators must be held accountable for their acts of malfeasance. In handling hundreds of these cases across Texas, Jack has seen every kind of horror one can imagine and recognizes that these types of abuses and neglect occur all too frequently in nursing homes. He asserts that this will continue as many nursing home operators have used recent changes to Texas law to "associate" with county hospitals and then claim Tort Claims Immunity. These "associations" are a sham and change nothing about how the homes are operated or who really operates them; some of the "associations" are with county hospitals that are not within a hundred miles of the home.

If Jack can offer any assistance in representing these victims, holding nursing home operators accountable, or improving the long-term care industry, Modesett Williams stands ready.

Proving Economic Damages: Client, Expert or Both?

Modesett Williams - Friday, February 12, 2016

Jury trials in commercial litigation offer business owners the opportunity not only to tell their story, but also to describe their damages. Because owners know more about their business and market than anyone else, they are well-suited to make this calculation and support it with historic information and future projections based on their experience in the real world. With proper preparation, this can be compelling testimony.

But should you hire a damage expert as well? Probably so, for at least three reasons. First, jurors like to create their own damage models and reach their own conclusions on a plaintiff's damages. Multiple damage options give jurors the formulas and raw data they need to calculate their own number and still survive a JOV. Second, having a bit of tension between the expert's typically lower number and the owner's more optimistic figure makes both witnesses' calculation truly independent. Third, multiple calculations could give you additional support on appeal.

In one case, this strategy worked out well. The jury heard both the owner's number and the expert's. The numbers were about 30 percent different. The jury went with the expert, with a small twist in our client's favor. We were fine with that. In fact, I suspect the defendants used the expert's appraisal to get a loan to pay our judgment! Our takeaway: Empower the jury by giving them options on damages. They are going to make their own calculation anyway.

Focus Groups: How We Use Them

Modesett Williams - Monday, February 01, 2016

Our firm conducts focus groups on every significant case in our office. But we typically do not hire outside trial consultants and instead conduct the focus groups ourselves. We have a pretty deep database on juror attitudes on common litigation issues.

Over the past year, we have disclosed the data from focus groups in two cases, resulting in the successful resolution of both cases. Colleagues warn we are giving away a significant strategic advantage. Maybe so, but the positive results from the two recent cases inspired us to go a step further. Depending on the case, we now invite opposing counsel to our focus group sessions. The risk is opposing counsel sees too much of your case and picks up helpful hints on how to attack. The reward may be the other side sees a balanced presentation, as well as risks of a large verdict. If we do it right, our credibility is established as is some good will. After all, the point of the focus group isn't to win the case, but to see where the pitfalls are and to discover the communities' attitude and language about your case. If all sides see this before too much blood has spilled and positions have hardened, maybe a fair resolution can be had.

Collecting from the "Asset-Free" Defendant

Modesett Williams - Monday, November 09, 2015

We represented a family in a nursing home case. The liability was clear, but the defendant claimed to be without collectable assets and on the verge of financial ruin. Settlement discussions stalled and the trial date loomed. We dug a little deeper into the defendant's financial reporting to the State and found hundreds of thousands of dollars paid to related parties for horse stall rental, private jet leasing and redundant and exorbitant "consulting" fees. We wrote the defendant a new demand letter pointing out this remarkable inconsistency and pointing to corporate veil piercing law, which introduced fraud concepts into the case. The case settled for the new demand within 72 hours.

Our take-away: There is often more than meets the eye with the "single-asset, bankruptcy remote entity." Though designed to limit ownership liability, these entities often indirectly fund related entities with ridiculous "expenses."

Removing the Mystery From Trial

Modesett Williams - Wednesday, November 04, 2015

I had a client who performed terribly in his deposition (before he hired our firm). Well in advance of the scheduled trial, we coached him, told him to let go of his anger and did detailed direct and cross examination work so that he could perform better at trial. But he was petrified. To help ease his concern (and mine), I took him to watch a trial. It was a case with similar facts. We watched for most of a day. The plaintiff's counsel had earlier told me that his client had given a bad deposition.

My client learned several things:

1. Trials are boring - there is little mystery to it

2. Follow the rules for testifying - answer the questions calmly and directly and without anger, no matter who is asking the questions

3. Opposing counsel would likely treat him with respect if he did the same to them

Our take-away: Find a case like your client's and have them watch it for a few hours. Try to time it so he can watch the opening statements and the direct and cross examination of the plaintiff.

Deposition Preparation - "The" Question

Modesett Williams - Monday, November 02, 2015

Years ago, we represented a landlord that had built a 40,000 addition to its downtown office building especially for a single tenant, who had signed a 10 year lease. The tenant never occupied the space and then claimed the entity signing the lease had no assets. Collecting on any judgment depended on piercing the corporate veil to get to the well-financed parent company. When it came time to take the CEO's deposition, we spent a lot of time thinking of "the" question to help our piercing claim. The question needed to be one where the answer didn't matter. The answer either made our point or would be shown to be a fabrication. The question: "Who do you work for?" The answer: "I don't know. There's not a simple answer." Remarkably, at trial, he still did not know! We spoke to our juror after a favorable verdict, who said, "They should have funded their shell companies."

Our take-away: Establishing important facts indirectly through an apex deposition can have a game-changing effect.

Winning Before Trial - Plaintiff's Dispositive Motions

Modesett Williams - Wednesday, October 21, 2015

We recently received a partial summary judgment, as a plaintiff, on a breach of fiduciary duty claim in a hotly contested case involving borrowers, lenders, lawyers and title companies. We accepted the burden of proof, even though it probably wasn't ours, so we could manage the evidence and presentation during the hearing.

We filed the motion because we thought we had a shot. If we prevailed, we knew the focus of the case would change from liability to damages. It worked.

Defendants later filed motions challenging some of our damage model, which we anticipated, but the conversation changed from whether the defendants did it to how much it was going to cost them. Fortunately, a year earlier we had upgraded previous counsel's damage model of less than $100,000 to over $2,000,000 and had some room to negotiate. Ultimately, defendants got into a range acceptable to our clients and we resolved the case 45 days from our trial date for well over our direct damages calculation.

Our take away from this experience: don't be afraid to be aggressive in your dispositive motion practice as a plaintiff. Defendants freely file dispositive motions with little hope of prevailing, but are sometimes less adept at fending off a plaintiff's efforts. Any time you can narrow the issues and tell a jury you've already won, it's a good place to be.

Winning Before Trial - Employees as Witnesses

Modesett Williams - Monday, October 19, 2015

In July, we tried a nursing home abuse case where four former and one current employee testified that Bastrop Lost Pines Nursing and Rehabilitation Center was chronically understaffed and unable to turn and reposition their patients, causing infected, fatal bed sores. This contradicted the payroll records the nursing home offered to show it was appropriately staffed. The jury believed the five live witnesses. Prior to trial, we spent a large amount of time compelling the Defendant to provide former employee contact information, tracking them down and talking to them. Their stories were consistent, as was their desire to help our clients tell their story.

Our take-away: Former employees know how organizations really run, are usually willing to testify and are not always disgruntled. Credible live witnesses often outweigh the cold documents. This is particularly true when the witnesses have nothing to gain by their testimony and may have placed themselves at risk when they want to continue to work in the industry.

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