What It Takes To Win Difficult Cases: Part 2

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. Today we're going to talk about part two of winning difficult cases. And with me to talk about that, I've got my law partner, Burgess Williams, and one of the top trial lawyers in this room, Neil Solomon. 00:36 Speaker 2 Hey, Jack. Good to be here. 00:37 Speaker 1 And as always, our brand manager, Kelsey Ballsey. Hey, Kelsey. 00:41 Speaker 2 Hi, Jack. 00:41 Speaker 1 How's everybody doing today? 00:43 Speaker 3 Excellent. 00:44 Speaker 2 I'm as good as you can be after a five hour expert deposition, but otherwise I'm pretty good. 00:49 Speaker 1 And you're like two weeks away from baby number three. 00:53 Speaker 2 May 23rd. Yeah, two weeks away. So excited and scared. We have a lot of young little kids running around, but it's funny enough. 01:01 Speaker 1 To get a bigger van. 01:02 Speaker 2 No van. No van yet, Jack. Well, now it's not happening. 01:05 Speaker 3 Looking forward to meeting number four. 01:07 Speaker 2 No. Or number four. No vans, no kid number four. That's the don't play this video in another two years. 01:14 Speaker 1 I know, right? Well, last week we talked a lot about government claims and I thought this was such a good topic. We cover more, know, different types of cases that we've handled that maybe are a little unusual. I know one type of unusual case Neil, you've handled some are ATV cases which, you know, I would have not necessarily considered a case that we would take maybe five years ago. But we've handled quite a few of those at this point. So tell me about those types of cases. 01:44 Speaker 2 Yeah, so ATV cases or UTV or whatever you want to call them. But these all terrain vehicles, and especially I think when you're in states like Texas where a lot of people have ranches or land or just like using them, we hear these cases unfortunately all too often. And I was just even yesterday reading the news about one that is not one of ours, but really tragic circumstances. But the couple examples that I have are you have kind of, I look at it two main scenarios. One is it's usually a child that shouldn't be one that gets really hurt. And the other one is that somebody gets on with a drunk person and they get really hurt. 02:23 Speaker 2 And those are kind of the two main ways that I see those, at least where there's an ATV type of injury or type of case and it's against someone's negligence for either entrusting the vehicle or the actual negligence of the. 02:38 Speaker 1 Driver of the vehicle. I mean, being drunk on an ATV. 02:41 Speaker 2 Is a bad idea. Yeah, evidently it's kind of like driving a Car or any other activity, it can be unsafe. Especially these where there is no seat belts. They're not using one. They're supposed to be using helmets, they're not using them. Sometimes they have roll bars, sometimes they don't. It's just a really dangerous activity and people don't unfortunately treat them that way. 03:06 Speaker 1 The first one of these we handled, one of the first questions we had is, okay, who, what is the source recovery in a case like this? Because you don't typically have ATV insurance or maybe you do. Tell me, like, what do you look at for a source recovery in those cases? 03:21 Speaker 2 Yeah, so in that case, the one that comes to mind, it was a. 03:26 Speaker 1 Young girl who had gotten hurt. 03:28 Speaker 2 If I remember right, I think she was seven at the time. And she gets taken out by, you know, a neighbor's boyfriend out to his property to go ride on a four wheeler. And she literally gets a 30 second lesson of watching what to do and then is given the keys to go do it. And so in that instance, we're able to find some insurance coverage through the owner of the property. The owner of the ATV you're looking at potentially the driver if it's somebody else that's there. And we actually have found specific ATV coverages. But I think ideally you're looking for some sort of ranch or homeowner's insurance policy. And a lot of times there'll hopefully be a larger policy that comes with that. So hopefully you're looking for at least a million dollars in coverage to cover the damages. 04:15 Speaker 1 You know, and I think that's a good point. So the two places you want to look are an ATV policy which may not be very large if it's on the property, that property's homeowner's insurance, or the homeowner's insurance or ranch insurance of the person who owned the ATV or even potentially the person that lent the ATV to the person. Because there's, in our experience, there's usually three places that occur on public land. You know, someone's camping on someone's private property they own or someone else's private property and they brought the ATV to the property. What about issues involving kids in those cases? I mean, that's got to be tough to prove liability if they're driving the ATV themselves. 05:01 Speaker 2 Yeah, yeah. And so that's kind of what I was going to. In this particular case, we're able to go forward on a negligent entrustment claim. And so just looking to your state and really finding good rules, I think is really helpful in those types of cases. And so going to, you know, eventually you may need an expert or want to have one, I guess I should say. But you don't necessarily need one early on. You just look at the manuals and they will state quite clearly make sure the person 16 make sure they're trained, make sure all these different factors. And a lot of times just by the handing them the keys over to someone that's unlicensed would fall under that negligent entrustment and the elements that you're. 05:41 Speaker 1 Going to need to prove. 05:43 Speaker 3 Another thing that you always need to be on a lookout for these cases. But you know any type of case where the injuries are catastrophic and your source recovery is not sufficient as a product angle. There's lots of products cases against these ATV manufacturers for not making these vehicles safe enough. So that's something you always want to keep in mind. 06:09 Speaker 1 No, exactly. If it rolled over and it shouldn't. Different precautions like that. The other thing you want to know is if it performed as designed and someone got hurt. You don't have a case because some products are deemed inherently dangerous. And you can't, for example, if you get hurt on a motorcycle because there's no seatbelt, you're not going to have a claim because that's part of riding a motorcycle. So that makes it an interesting wrinkle on those. Yeah. 06:34 Speaker 2 The other thing to look out for is the basically aftermarket additions on those. And so you can lift them or put kind of mud tires on them and or different bars on the top or handles other things that can be there. And so depending upon the manufacturer of those, that's another angle to look at and or another potential responsible third party for, you know, the first entities you go after try to point the finger at for your injuries. I've definitely heard and I know some prior firms that have handled some cases where there's literally been amputations of people's hands after it rolls over. And the roll bar can cause some pretty serious stuff. So it's definitely want to look through all those different angles to see what sources of recovery are available. 07:18 Speaker 1 It also makes you a much more cautious parent. I hope you guessing that like I look at everything as a potential cause of action now. And ATV is one of those areas where you got to know what you're doing. You don't want to just get on there and be an idiot. The other good thing about those cases as far as proven liability is most people will agree if it involves a child, that they should not have Been writing it. So you can ask the person that lent it, would you agree that they should not have ridden this atv and because the child is not old enough to make a decision themselves, you can ask them that question. You know, would you have let them do it now if you knew what you knew now? 07:56 Speaker 2 Yeah. One of the good things is that if it is a child case, a lot of the time, if you're able to, if they have insurance, then the person who owns it is happy to give you whatever you want on a silver platter to make their insurance pay because they feel really bad, and so they want to try to and say, you're right, I shouldn't have done it, I screwed up. And they're kind of happy to. To help you move that case forward. There's always the risk of them blaming the parent or something else, but you need to watch out for that. But you can find that sometimes are helpful. 08:29 Speaker 1 Yeah, that's a really good point. And that also kind of means don't necessarily be an aggressive jerk in the beginning. Right. Because that could limit your ability to do that, you know? I know, I know. Another type of case that we've handled quite a bit of which I never considered, you know, before a few years ago, are shooting injury and death cases, which unfortunately are really common. And we're not talking about an intentional tort where someone goes out to kill someone. We're talking about an accidental shooting. Burgess, have you handled any of those? 08:58 Speaker 3 Yeah, quite a few. They're interesting cases because, as you know, firearms are very dangerous, and you have to follow a lot of safety rules to make sure the people around you, including yourself, are free of from harm. And we see quite a bit that people are just careless with guns, and oftentimes alcohol is involved. And I really like the shooting cases because when you're handling a firearm, there are so many rules. And it's an area where safety rules are so important and so inherent, and it's really easy to establish what the proper behavior is and show rule violations that allow you to make your liability case and show a jury how dangerous this person was to the people around them. 09:55 Speaker 1 Well, a lot of times when you're bringing the case to trial, you may want to actually be in a conservative jurisdiction. I don't think it's about pro gun or anti gun. Most people that are pro gun believe that you have a responsibility to handle a gun safely. And so I know in those cases, a lot of times our experts, our NRA instructors, you know, who teach people how to use firearms Appropriately. And you'll find jurors be really upset at somebody who doesn't follow the rules on how to have a firearm. 10:25 Speaker 3 Right, Yeah. I mean, we've had experts who are instructors and concealed carry classes and former police officers. Those are the types of people you want to talk to figure out, okay, what should this person have been doing? And this is what a reasonable gun owner or handler would be doing in some circumstances. 10:48 Speaker 1 I remember one time we had. This is probably one of the most difficult cases that we've handled was a case where a person had brought their vehicle to a charity car wash. And a really sad case. The left it there and they left a loaded gun on the seat just out. And one of the kids picked it up and shot the other kid. And it was really tragic because that one child who shot the other one ended up going to prison. We didn't believe it didn't appear to be an intentional act. You know, they were just messing around. And when we took the defendant's deposition, he took a very unreasonable position that he did nothing wrong. He would do exactly the same thing again. And that really made a big difference in the case. 11:38 Speaker 1 I think if he had fallen on the sword, he probably would have, you know, had a much better outcome than he did. 11:43 Speaker 3 Yeah. Tragic circumstances. You know, that's another thing that goes with gun ownership. Not only do you have to handle them carefully when you're around people, but you need to store them in a secure manner. And in this particular case, that the loaded gun was just left in the glove box and teenagers were given access to the car. 12:02 Speaker 4 So 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 Groupon, please reach out to us at 800-863-5312 or email us at infozdfirm.com and we can set up a time to discuss your case. 12:41 Speaker 1 What about this is another kind of weird source recovery issue. So what are the sources of recovery that you all have seen? Obviously, you typically don't have gun insurance. 12:51 Speaker 3 You know, yeah, it's homeowners and hopefully there's not any exclusions I don't think I've ever seen a homeowner's policy in these cases where their coverage was excluded. I think insurance companies are very fearful of these cases because typically the harm that occurs when somebody negligently discharges a firearm is pretty significant. And there are liability cases that if you put it together right, you can clearly show that whoever fired the gun was at fault or whoever owned the gun that negligently entrusted. Typically, you're looking at a homeowner's policy for coverage. 13:35 Speaker 2 Yeah, I mean, that's the main place you'd be looking at. I know we're looking at another case now. I was talking to another attorney in the firm in Colorado that we're filing on relating to the actual landlord who potentially knew that the home, or the renter, rather, had a gun and had previously misfired in their home before. And then next thing you know, he misfires a second time on a different date. It goes through the wall, and it hits our poor client, who's just there trying to use the restroom, and when he gets struck in the gut. 14:07 Speaker 2 So, you know, there's some different theories of trying to go after to find that source of recovery, but for the most part, I think it is going to be that homeowner is a renter's policy, and then you're going to find that the person's going to say they didn't mean to do it, because obviously there's criminal ramifications if they say it otherwise. So. 14:24 Speaker 3 And you do not want to plead that they did it intentionally unless you want the insurance company to say no coverage. So it always needs to be played as negligence and gross negligence, not intentional. 14:36 Speaker 1 Never, never plead intentional conduct. That's like, such a gift to the insurance company. I can't believe how many cases we've had where guns have gone off and hit people through a wall. 14:46 Speaker 3 There's. 14:46 Speaker 1 We've had at least half a dozen. It's just insane how many people think it's a good idea to clean a gun at a party or when friends are over or it's loaded. I mean, it's just insane. 14:58 Speaker 2 Well, Burgess, you're from Florida, so, I mean, y' all have, like, gun cleaning parties. Yes. 15:04 Speaker 3 Yeah. 15:05 Speaker 2 Our favorite panhandle picnic. Yeah. 15:09 Speaker 1 Apologies, all of our Florida listeners. 15:13 Speaker 2 We're from Texas. I don't know what we're talking about. 15:17 Speaker 1 Well, what are some other types of interesting cases that are. That are kind of more difficult when they come in? And I think one big picture, when you zoom out at all these cases, you start off with, all right, something really bad happened. And I think for any tough case, you want to. First off, are your damages significant enough for you to invest the time to investigate it? You know, if you have a gun shot case where I guess it could be a minor injury, where maybe just scrape their arm or something. All right, am I going to put the time into this? Same with a government entity case or an ATV case. You want to first, do I have significant enough damages to put in all that energy and time? What are some other cases you've seen like that? 15:56 Speaker 2 Well, I was going to say to put a bow on the gun cases. The other factor to look at is just on the manufacturer side. And so it may be a potential products case. And so you want to look if it's some sort of misfire or if there have been similar issues before. And so don't just assume that it was user error. There's no insurance there, so make sure you're running down all those traps. But other types of cases through the firm. I mean, there's been. It's kind of whenever there's been a bad harm, kind of like you said. So drowning cases comes to mind. I know there's been some really unfortunate circumstances, but we're getting some really good results for some clients. 16:32 Speaker 1 Yeah, drowning cases, you know, we. Or cases involving water where someone gets hurt or killed. A lot of times that's going to involve, you know, maybe a child who was left unsupervised. Or it's an area. A lot of times it could be an apartment complex that doesn't have the right safety precautions like a down gate. And unfortunately you see it in some of the most downtrodden rental situations because they don't put the money in to keep the area secure. I know recently we had a case involving a fire case where an apartment complex didn't have the proper fire equipment and it nearly burned down and our. 17:12 Speaker 3 Clients had to jump from a three. 17:13 Speaker 1 Story window to escape. 17:15 Speaker 3 Yeah, you know, fire cases with a gas explosion cases. Those are interesting. Gas explosions happen a lot more often than people realize on a nationwide basis. You know, along the ATV line, we see a lot of golf cart cases. People get injured on golf carts quite a bit. 17:36 Speaker 1 I remember one time I had a case in a golf cart where he was on a golf course and he was driving to the hole and there was like a giant crater that had been covered up by grass and you couldn't see it and he's just driving to the hole and he Goes through the crater and goes like 15ft down. Luckily he lived. But it was one of the craziest cases. It was actually ended up being kind of a tricky case because it was trying to figure out what could he see, what could he not see. You know, he had a couple beers, so is there alcohol involved? That was a really interesting case. Gas explosions. Those are. Those are interesting ones. That's a tough one to. Those can be difficult to investigate and pursue. 18:19 Speaker 2 I was going to say when you mentioned like golf cart cases, other things like that. And also going back to the ATV is a lot of states and in Texas is one of them where watch out for the recreational use statute. If the public land is used for recreational use, then there might be some additional reasons that the government basically gets off the hook or the homeowner or even the landowner. So it's just another pitfall to watch out for. Yeah, there's definitely been some interesting cases all throughout the firm, but always kind of start with was there someone at fault, why this whole thing happened? And usually there's a why as to why it all started. 18:55 Speaker 3 So where do expert witnesses come into play with these types of cases? Right out of the game. 19:01 Speaker 1 Yeah, that's true. That's a really good point. You got to get them from the get go. 19:04 Speaker 3 Yeah. And if you are not being led by an expert in that particular area to what to look for and to vet the case, then you're probably spinning your wheels because unless you have real experience in some of these areas, you're not going to know what to look for. That's why you need the expert's eye to direct you. 19:27 Speaker 1 Yeah. And it can be tough to find the right expert. So a lot of times we'll start with PACER and look in federal courts to see other lawsuits like it to see if you can track down experts that were used in that case. What are some of the other places to find an expert in a, you know, someone who shot a gun while riding an ATV trunk and ended up drowning? 19:47 Speaker 3 Well, you know, I typically will start with colleagues. I'll work on our TLA listservs. 19:55 Speaker 1 What's a tla? 19:56 Speaker 3 TLA is a trial lawyer association. So whether it be your local, state or national group, you want to belong to those groups and have access to those listservs because you can really get good information and find good experts by being a member. There's also third party companies that you can go to look for experts. I typically don't like to start with those, but in a pinch, we'll go to them and you just want to ask around to get names. Sometimes it's fine to. It's good to find experts who haven't ever done it before. If you have a shooting case, call a local gun range or call somebody who in law enforcement, they might know somebody who's retired who could talk about it. 20:50 Speaker 1 A lot of times I think it's really cool, too. They get excited. You call someone, do you want to be a consulting witness? Like, oh, that sounds neat. The thing too. Be careful with your expert witnesses on buying what they tell you right out of the gate if they are a professional expert, because a lot of times they may be more excited about your case than necessarily warrants. You know, they're not attorneys, so they're not necessarily looking at the pitfalls the same way you would. So make sure you're still evaluating it that way. And I'd also say focus groups can be really helpful in these types of cases. 21:25 Speaker 2 Yeah, Find out what they want to know. Go from there. But I think you really hit the nail on the head on experts. I haven't met an expert, a professional expert that hasn't told me I've got a great case. So I think you have to really kind of vet them and play devil's advocate and find out what if you really believe them and why, and really challenge them from a devil's advocate perspective. 21:47 Speaker 3 And ask friends, ask family, hey, what do you think about this set of facts? Do you think this is wrong? That this, you know, this happened? Who would you think is at fault? You know, do your own free focus group to get information that can be really valuable, too, Helping you decide whether or not you think it's something that's worth pursuing. 22:07 Speaker 1 Yeah. And you got to do that a certain way. You need to have someone like my wife who will tell me that my case is terrible. Or you need to tell people, a friend of mine has a case like this. What do you think? Because if it's a friend or on the other end, my dad has never heard a case. He didn't love him. I'm just like, that's the coolest case. You need to get $100 million, you're going to win. And that's not the best advice all the time. 22:36 Speaker 2 It's been really interesting to see different people's perspectives on cases. And I think it's just. It's good, free focus group and it'll kind of open your eyes to different thoughts on how to handle it. 22:47 Speaker 1 Well, everyone, this has been another awesome conversation. Hopefully I hope some people got some value out of it. I had a lot of fun. 22:54 Speaker 3 I enjoyed it. 22:55 Speaker 2 Yeah, this is great. 22:55 Speaker 1 And it's good to be back in person. So until next time, if you have any questions on a case like this or one similar, you know, feel free to reach out to us. You can email us, you can call us. We're happy to talk through any issues you have and hopefully give you some help along the way. Till next time, thanks. Thank you for taking the time to listen to this episode of the Effective Lawyer. If you enjoyed this podcast, please take a moment to rate it 5 stars and leave us a review. To get notified about new episodes that are upcoming or have been released, go to zdfirm.com/podcast to sign up for our mailing list.