What It Takes To Win Difficult Cases: Part 1

00:03 Speaker 1 Welcome to the Effective Lawyer, a podcast for ambitious attorneys who want to improve their practice. My name is Jack Zinda and I'll be your host. I'm Jack Zinda and I'm here with my law partner, Burgess Williams. One of our top litigators, Neil Solomon, and as always, our brand manager, Kelsey Balsi. Hey, everyone. 00:33 Speaker 2 Hey, Jack. 00:34 Speaker 1 So it's pretty awesome to be back together in person, minus Kelsey, who is in Louisiana. But we're all vaccinated post second shot. So this is the first time we've done this in person in a while. 00:47 Speaker 3 It's good to be back in the office. 00:49 Speaker 1 It is, man. Well, today we're going to talk about winning difficult cases. You know, some of the one off cases that you may not see every day. What are some tips and tactics and how to approach those and go through some of the cases that we've handled that will hopefully help you with your next case. 01:08 Speaker 2 You know, there's a lot to deal with these types of topics, so let's dive into it first and foremost. I mean, when you're talking about winning difficult types of cases and you're looking at, you know, gunshot cases, drowning cases, and government claims overall, why are these cases so difficult to win? 01:28 Speaker 1 Well, I think, you know, one of the more difficult cases to handle is dealing with any case where you're suing the government, either state or federal. Burgess, you've dealt with those a lot, right? So what are some of the times that's come up in your practice? 01:43 Speaker 4 So, yeah, you know, it's common to see claims where people are injured due to the government doing something or not doing something. We've seen it in the premises realm, we've seen it in the car wreck realm. Anywhere the government is doing business, you can see injuries, but there's very few exceptions depending on the state that you're in. If you're trying to sue a state government or a local government where you can actually sue them. So that's the first thing you always got to figure out is this governmental entity waiving sovereign immunity? A warning of these cases? They can be difficult because there's a minefield of issues that you don't come across when you're suing a private citizen or a private entity. 02:33 Speaker 4 So when you're going into these things, you have to be aware that there can be some traps that can get you and really harm your cash. 02:42 Speaker 1 Well, I know some of the cases that we've handled, we've had cases involving where a police officer has wrongfully shot and killed someone. We had a case involving a police officer tasing someone and ended up passing away. And I kind of put these cases into different boxes. One is you've got someone who clearly did something wrong that violated a constitutional right. That's typically going to be your police officers, law enforcement type agencies. The second category I think about is something involving a vehicle. And the third is if it happened on some sort of government property or some other kind of premises type cases. The three things I think about. What are some of the cases you've seen, Neil, involving going after the government? 03:28 Speaker 3 Yes, I think you hit on a bunch of those directly related to, obviously probably the most common that you'll see around or more of your standard car wreck cases. And most the time, either state or federal, they allow themselves to be sued for those types of cases. Even going back to my defense days, I represented some of the police departments and different intergovernmental risk pools related to injuries at parks and how the recu statute comes into play and the rest of it. So there's just a lot of different traps that are laid out there for you, having to deal with police to the jurisdiction and everything else related to it. But there's just a lot of different claims. 04:08 Speaker 3 And really digging into the statutes on all those cases, which probably is the most exciting stuff, but you have to really dig in there on those. 04:15 Speaker 1 Well, some of the facts you see are just crazy. I know. Burgess, you had a case where a manhole cover was left off of a sidewalk, right? 04:23 Speaker 4 Yeah. Case involving a lady who was walking in her front yard and stepped on a storm drain and the lid was not properly fitting the manhole that it was on top of. And upon inspection, you could see that they were trying to make the lid fit with glue and some kind of gum like substance. And it clearly was not safe. And her leg went down into it and she landed on the flipped lid and spent four or five days in the icu. 04:56 Speaker 1 And that was. I mean, and you had to litigate that case for what, almost two years? 05:01 Speaker 4 Three and a half years. We had an interlocutory appeal over one of our causes of action. By the time we got to trial three and a half years later, the government, after fighting us on liability for those three and a half years, stipulated the liability the morning we picked the jury. 05:21 Speaker 1 Well, you know, that kind of brings up one issue that you have to deal with a lot is dealing with the government and their attorneys. What's some of the differences you guys see when you're dealing with a Private ensure, you know, a law firm that is, you know, being hired by an insurance company versus the government. Yeah. 05:40 Speaker 3 So, I mean, when you're dealing with the government, the. Even though they probably shouldn't act that way, they act as if they have unlimited resources. And so they are willing to, you know, take every deposition, take hard stances, and go try the case. I think you have to have that mindset that you're ready to go try it if you're even going to take on that case. So I think that's the first and foremost you have to think about. And then eventually there are definitely issues, even with, you know, settlements or getting approval from cities and otherwise. And so just knowing that you're gonna have to jump through a lot of hoops if you're taking on those cases, even if you are able to somehow resolve it. 06:18 Speaker 1 Yeah. And, you know, they may actually be excited about the case because they're on a salary. So it's a good, interesting case for them to work on. And I think you got to think about what is your leverage point with whoever you're going up against. 06:34 Speaker 4 Yeah. And, you know, what I've seen in the cases I've had against governmental entities is you get good lawyers, by and large, on the other side, but they typically don't specialize in personal injury claims. And so they may not have the intimate knowledge of how a personal injury case works, which can be kind of tough in getting them to understand your theory of the case. 07:00 Speaker 2 So, Burgess, if it is so tough, then what would you say to a relatively new attorney that's coming on to these types of cases for the first time? 07:11 Speaker 4 You should be very selective of these cases. I've learned this over the years because the government will fight to the death on these cases. They take a long time, they're expensive. And sometimes, especially if you're suing a state entity, at least in some of the states where we practice, there are caps on the amount of damages that you can recover. And so you want to have a really good injury case, severe, if not catastrophic injuries, and you want to have clear liability. If that doesn't line up, you're going to be in for a long haul. You may not come out on top of. 07:50 Speaker 1 You sound very excited about these. 07:53 Speaker 4 They're important cases because I think everything we do is intended to keep people accountable for their actions. The government needs to be held accountable, and if they hurt somebody and there is a claim, somebody needs to pursue it. They are tough cases, and so you. 08:11 Speaker 1 Just have to be aware of that and for sure. 08:13 Speaker 3 Full credit to Burgess on that case. Took the government to task the city and got a good verdict. And I don't think you could have ever had any happier or more thankful clients as a result. 08:27 Speaker 1 Well, I think you want to always start with the statute. If you're looking for tips is typically if you're suing the government. And let's just for a second zoom in on state entities, you got to start with the statute, because the government has sovereign immunity unless there's an exception specifically carved out. So the general rule is you cannot sue the government unless they give you permission to sue them. So wherever you are, start with the statute first. I'd also look at the local regulations, like the codes for the city or the county you're in, because they're going to have special procedures, and your state government may have given them the ability to create their own rules on how a claim has to be filed. 09:13 Speaker 1 In Texas, we have some really onerous notice provisions where you have to put the right entity on notice, and if you don't, your claim can be summarily dismissed. We've had cases where we go up against a venue that's putting on a concert, and someone's hurt really bad at the concert, and it happens to be owned by university. I remember a case where we put the athletic director on notice, the football coach on notice, the basketball coach on notice, the mayor on notice, the DA on notice, the city attorney on notice. There was literally like 12 pages of notices, and they still said, we did not have notice of this case. Every single time. That that's a defense in a case in Texas. And that's just a weird rule, but if you don't know about it, you could get into trouble. 09:54 Speaker 1 The second thing is, in Texas, for example, they can lower the time period at the city level to as low as 30 days, I think. So you really got to be on guard. You hate to sign up a case, think you have six months to investigate it, not get your notice letters out, and then you're in deep trouble. 10:11 Speaker 4 Yeah, that's absolutely true. And, I mean, that goes for any case that you're investigating. You always need to scratch the itch of, is there a potential governmental entity involved? Because if you snooze on that and you miss the notice provision, then you could be completely barred from bringing the claim. And I'll tell you, in the cases that we've tried against governmental entities, they will always, at the cause of evidence, do a directed motion for a directed verdict based on notice. So you Want to dot all your I's across all your T's, put everybody on notice. As Jack says, anybody conceivable who works for the government and that particular city, county or the state. So that argument doesn't hold any water. 11:04 Speaker 1 When sometimes there can be a camouflaged government entity, you know, when it is maybe a contractor working for the government. And you have to be careful about that as well. I know a lot of cases where we thought it was a commercial defendant. It actually turns out it's someone working for the government. And depending on how the contract's written and what the specific law says, you could be stuck with your governmental caps as well. And I know on the flip side, we had a bus rec case last year where a pedestrian was hurt really badly by a city bus. And turned out the city bus was actually a private entity that was working under the flag of the government. We actually got to avoid the caps. 11:43 Speaker 3 Yeah, that's one of the big things to definitely look for is who the entity is and then checking out the caps. We haven't really touched on that yet. But that's a big factor in when you're looking at these damages is they often will set a cap, particularly state governments, on how much you can even recover. And so that's just one of the big factors to look into when evaluating these cases. 12:03 Speaker 4 Yeah, in Texas, if you have a claim against the county, their cap is $100,000. They must have better lobbyists than city government and state government because Those caps are 250,000. But you can have a very low ceiling on these cases. So you need to be aware of that going in for you. Spend a ton of money on these cases because they can be expensive to work up. 12:29 Speaker 3 And that's where you're going to find those. Private contractors. Whenever you can is where you can hopefully find some gold and really help out the client. 12:38 Speaker 5 Zynda Law Group is a plaintiff's personal injury law firm made up of over 30 lawyers that handle catastrophic personal injury and wrongful death cases throughout the United States. We regularly counsel and joint venture with firms across the country. Over the last several years, we have paid millions of dollars in joint venture counsel fees to the law firms we work with. If you are a law firm or attorney and have a catastrophic personal injury or wrongful death case you would like to joint venture or work with Zynda Law Group on, please reach out to us at 800-863-5312 or email us@infodferm.com and we can set up A time to discuss your. 13:15 Speaker 1 But I know we looked at. We've had a couple construction cases as well, where it involved construction workers that were hurt on the job. And there was a sovereign immunity issue there. And in Texas, at least if the contractor was following the precise directions and orders of TxDOT, they got immunity. But if they deviated from it, they didn't. And that was kind of an interesting nuance, and weren't able to really flesh that out till depositions and trying to prove were they not following the procedures or not. So there's. There's always a lot of interesting areas to kind of, like, look at. 13:53 Speaker 4 It's a tangled web. The good news is, if you're wanting to sue the federal government, the notice requirements aren't near as onerous, and there's no caps on damages. However, they do cap your attorney fees. I guess they are disincentivizing people, or at least lawyers, to read those claims by reducing contingency fees way below what the standard market rate is. 14:21 Speaker 1 I know we've. We've had a couple of federal. More than a couple. We've had quite a few federal Tor Claims act cases. I know you had one involving a secret agent on a mission. 14:32 Speaker 4 It was. I was not allowed to find out what he was doing. It was all confidential and classified. 14:41 Speaker 1 You know, in that case in particular, you do not have the right to a jury trial, right? 14:47 Speaker 4 No. If you are suing the federal government, it is a bench trial. For some reason, that statute passes constitutional muster. I still don't understand that. But, yeah, you are trying the case in front of a judge. 15:04 Speaker 1 Let's talk a little bit about some of the cases that have been in the news recently, at least the type of cases, which are when a police officer wrongfully kills someone, what's the remedy you're typically looking at there? And what are the things you want to be on the lookout for? 15:18 Speaker 3 So, I mean, I think generally in those cases, you're looking at a 1983 case, at least one of the ways you can try to go about it. And so you're taking a look at, you know, what the officer's actions were. And that could be against really anybody, the officer, the jailers, correctional officers. And you're really looking to see if any of the constitutional rights are being violated. And so it's a little bit of a different standard than your run of the mill, you know, assault action, obviously. But those are the claims you're looking for. 15:55 Speaker 1 You know, those two. And I think one thing you want to Take away from all of this is you really. These are nuanced fields and I think they're workable for a relatively new attorney. But you just have to spend the time to really get up to speed and understand what you're doing. You know, in a 1983 cause of action especially, you have to deal with qualified immunity, which that's been in the news a lot, which creates a heightened burden to hold the police officer accountable. A lot of times you may have a state cause of action, but in Texas it's actually worse than the 1983 cause of action. 16:28 Speaker 1 Now, that's going to vary state to state where you may have more or less rights, but a lot of times the rights that you have going against the police is going to be less, significantly less than it would be going against a regular party. 16:40 Speaker 4 They're very tough cases, especially in the fifth Circuit. The courts are very pro government and police officers, so they can be very difficult cases to win. 16:57 Speaker 2 So, Jack, I know I hear you talk about discovery plans all the time. How do you sort of apply those, that type of method, that expertise to these types of cases when they are so difficult? 17:13 Speaker 1 Well, I think is with any type of case, you want to start figuring out what is the evidence you're trying to figure out, like what is it you're trying to prove. And I don't think the discovery for the most part in most cases is going to vary that much from a typical case. You know, one thing we haven't talked about is how you deal with getting discovery from, you know, government entity, how that might be a little different. You might be able to get stuff via the Public Information act or a FOIA act without even have to do formal written discovery. And that's another way to get a head start where you might actually have an advantage in a case like this, where you can get information ahead of time that you'd have to ordinarily file a lawsuit to get. 17:54 Speaker 4 Yeah, I'll say in my experience suing governmental entities, you definitely always want to start with a charge, find out what you're going to have to prove, and then tailor your discovery plan to that to get the evidence you need to support those elements. And you really want to utilize, you know, 30B6 or corporate representative depositions on some of these governmental entities, because there's an unlimited number of people you could go depose. And so it's better to send the city the topics that you want to ask the city to testify about and have them designate the people that are going to Answer those questions and you may even do a deposition where you're wanting them to bring all the documents so that you can get all that stuff that tend to tends to present a situation where there's less drag and it's more streamlined. 18:49 Speaker 1 I know we had a case where a gentleman was tasered several times, ended up passing away. And we're actually able to get video footage from the Taser itself that revealed what had happened. That's the first time I encountered that. There's actually models of Tasers that have video footage on it. And that came from getting an open records request. And we hired an expert witness who dealt with police issues and said, did you know that this Taser might have video footage? And that actually made the case because it really proved the story they had given was different than the one that would actually happen. What about publicity? You know, when is it a good idea to get the press involved and when could that be a problem? 19:38 Speaker 4 Well, there's always ethical concerns. You want to make sure that you're not litigating your case out in public and there's certain rules that you have to follow. But that certainly can be a pressure point because as we've seen in some recent settlements involving police brutality cases, it's a sore subject and it can really move the needle. I know the George Floyd case settled, I think for something in the 20 million range, really early. The city wanted to make it go away. So there can be a pressure point there, I think. 20:13 Speaker 3 Would usage really think about what's going to actually get out there to the public and is it helping or hurting your case? And that's just such a case specific thing. And the other part is just talking to your client about how much they're willing to put out there and have. 20:27 Speaker 1 You be out there. 20:29 Speaker 3 And so I think first of all, like you said, your obligation is to your client. And so after you think through those issues, you can then decide how much you want to try to bring in somebody else. 20:38 Speaker 1 Yeah. And think about who your audience is and what you're trying to accomplish. You're trying to help the case get the most money for your client that you can, either through a trial or through a settlement. Now, if pointing out things that could put some political pressure is going to make them more likely to settle the case, then publicity is going to help. But sometimes it might back them into a corner, make them take an unreasonable position to kind of protect themselves. And then you've really put yourself in a bind by even getting the press involved. All of A sudden they get on TV and they say, no, we did nothing wrong here. And now you're buying yourself a trial, maybe an appeal. I know there's been several attorneys that thought they had a good settlement. 21:22 Speaker 1 They have a big press conference, they make one of the city councilmen mad. And then all of a sudden the. The offer gets pulled from the table because they were the final decision makers. So you gotta be really careful which way you use the media. It can be used as a sword and you could also, you know, kind of cut your own hand off. 21:40 Speaker 2 So when you talk about the media, how do you see the media shaping the case across the different states in our practice area? 21:51 Speaker 1 You know, I think it has a lot to do with what the politics are in local state. Right. 21:54 Speaker 3 If. 21:55 Speaker 1 If you think your facts are going to resonate with the local public, then it's probably going to be helpful. And if it's not, it's probably going to hurt. 22:03 Speaker 4 Yeah. And I think a good rule of thumb is to gauge the outrage factor of whatever happens. If some or most people are going to think big deal when they hear a 15 second explanation of what happened, then you probably don't want to be announcing it from the rooftops. But if it's something that will really register, then you may consider making it public so that the community is aware of it. 22:33 Speaker 2 I also am kind of wondering about. Is there. Burgess, you were talking about sort of the time from the client meeting to resolution. What is a typical. Is there a typical timeline for a government claims case? 22:52 Speaker 4 In my experience, it's been multiple years. The ones that I've tried, the cases have been going on for at least. 23:01 Speaker 1 Three years, more than six months, less than 10 years. Yeah, that's a good range. 23:06 Speaker 4 Yeah, it's a pretty pinpoint range. 23:10 Speaker 1 All right, everyone. Well, this has been an awesome conversation. Hopefully you all have found it helpful. You know some of these tips and tactics you can use on your next case. If you have any questions about a case like this or any others, you know, feel free to reach out and appreciate everyone being here today. 23:26 Speaker 3 You bet. 23:27 Speaker 4 Good to be here. 23:28 Speaker 2 Thanks, Jack. 23:36 Speaker 1 Thank you for taking the time to listen to this episode of the Effective Lawyer. 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