$91 Million Verdict on $25k Offer

Aug 17, 2021

A verdict from Eric Fong, Port Orchard, Washington

A man named Will walks into a convenience store for a Gatorade. Unbeknownst to him, the store is being robbed. A another man leaves the store as will walks in, and the clerk says calmly, “call 911.” Will steps outside as he calls 911 and sees a man in his car. He runs toward his car and asks the man what he is doing. The man instantly pulls out a baseball bat and viciously beats Will multiple times in the head.

Let’s talk about the damages. While Will’s Glasgow coma scale was 15, he was left with a severe traumatic brain injury, causing memory and attention problems, chronic headaches, PTSD, depression, anxiety, grand mal seizures. Will also suffered from visual disturbances, a detached retina, and tinnitus.

As for the defendant’s lack of due diligence and the environment of negligence in their business, there is a rich list. Nevertheless, this was a disputed liability case. Through litigation and investigative work, we learned that the store was a magnet for crime. Employees were afraid to go to work at night, they brought weapons to defend themselves, and the manager told the company the store was dangerous. Safety mirrors and the silent alarm were removed. Visibility was a problem. A homeless encampment on the property was a nuisance. There was a robbery five months before our client was attacked, and the police were called to this store 100 times in the past two years. When the manager asked for help, he was told that “store sales don’t justify the expense.”

As for Washington Administrative Codes (WAC), the law requires formal training on robbery deterrence and violence prevention and the owner has a duty to prevent crime and keep customers safe. This was nonexistent except for a papered-up trail of policy and procedure. WAC includes specific rules for late night retail (10 a.m. – 6 p.m..) This event happened at 11:30 p.m.. The law also requires that the clerk be trained to understand the dangers of late-night retail and the fact that these stores statistically will get robbed. None of these mandates were met.

The villain? Neither the robber nor the clerk, but the defendant, a massive corporation that does $1.3 billion in annual sales. A total of $27 million in available insurance coverage was disclosed. The stunning pretrial offer was a whopping $25,000.

As per usual, right out of the gate, there were unexpected challenges at trial. Imagine my surprise when the judge told us that each side would only get 20 minutes for voir dire. Out of a venire of 20 minutes for 20 people, there were zero for-cause strikes. Almost half of the selected jurors believed that lawsuits are driven by greed and that verdicts are too high. After voir dire, I was almost despondent at our perceived bad luck. However, I told myself to relax, to trust the jury, and to fall back on my preparation.

It was a good, clean case. The verdict was precisely as requested, $91 million minus our suggested contributory negligence of 10 percent. Future life care needs are $9 million. No evidence of past medical specials ($400,000) or lost wages ($1.2 million) were presented.

Legal giants and mentors helped shape my path, and this trial, as well as my co-counsel. Above all else I want to recognize my fiancé, Courtney Bray. Courtney, whose fierce and compassionate heart inspires me, contributed to the artistic creativity and delivery of our case at trial.

Ken McEwan and Emma Aubrey were co-counsel in the case. Ken worked nonstop on this case for two years. He threw himself into the black-letter law and ran strategic circles around the defense. Ken drafted brilliant 30(b)(6) notices, jury instructions, and deftly navigated the legal mine field. In court, Emma kept control of the evidence, and managed the technology. Outside of court, Emma ran the office so I could focus for months on end to prepare and try this case. Together, Emma and Ken responded to the motions practice within the trial and briefed issues that came up.

Gerry Spence, Paul Luvera, Joshua Karton, Rick Friedman, Nick Rowley, and Bill Barton are mentors and friends that have supported me throughout my career.

For the past fifteen years (and counting) I have spent at least two weeks teaching for the Trial Lawyers College. While there, I have always been around great thinkers and trial lawyers, and none greater than the master, Gerry Spence. Gerry is a mentor to me, and he’s taught me things that I can’t imagine how he dreamed up the inspiration for.

Paul Luvera and I enjoy a lovely friendship that formed over twenty years ago. Recently, Paul gave me twenty-five binders of what I believe is a fair chunk of his life’s legal work. One of my many regrets is that I have not shared these properly with my trial lawyer community. The “Luvera Files,” as I call them, along with his book, Luvera on Advocacy, were my crutch in this trial and an endless well of inspiration. At numerous points, I asked Paul what he would do. It made a difference. Paul spoke through me, to that jury, and it was magical.

Bill Barton and I are kindred spirits. He is a friend who always helps me along the way. His book, Recovering for Psychological Injuries, is one of the first legal books I ever read, and I keep it close by to this day. His advice on life is as important to me as his insights on how to talk with juries and prepare cases.

Joshua Karton helped me with the opening statement, delivery, and case framing in this case. His brilliance as a writer, communicator, and motivator cannot be overstated. His book with David Ball, Theater for Trial, encapsulates so much of what we must do to entertain and connect with the jury. If you are gearing up for trial, you must consult with him. Joshua helped me develop an opening statement with overwhelmingly complicated facts and belt it out in less than twenty minutes. It was amazing, it won the case. He is beyond brilliant. I love him deeply. His book with David Ball captures the essence of who he is, and what he does.

Rick Friedman once saved my legal career. Rick once jumped into the ring with me on a nasty medical malpractice case, like a big brother stepping onto the playground to stand up to the bullies. His involvement turned it from a sure loss into a massive victory. Rick did this for nothing, no strings attached, only because we are friends. Till the day I die, I am forever indebted to Rick. One of the first things I did when I started seriously preparing my closing argument in this case was to pull out Polarizing the Case. One of the first things I did before discovery even started was pull out the poster board and open up Rules of the Road.

Some of my fondest, wildest memories are from getting to know Nick Rowley. Together, we drove across the beautiful Iowa plains while working up and trying a nursing home abuse case. Our friendship spanned some of my most formative years as a trial lawyer. The book that he wrote with Courtney Rowley and Dr. Saxon, Voir Dire and Opening Statements, captures so much of what I know is his brilliance and spot-on trial instinct.

Each of these titans has shared so much with me. I read, and reread, their books, especially as I gear up for trial. The other book I relied upon in this case is Don’t Eat the Bruises by Keith Mitnik. I don’t know Keith, I wish I did. His practical pointers and strategic planning are both brilliant and born of common sense. His simplification of these complex matters is a massive contribution to the legal profession, at least for those of us who fight for good.

Reading all these books filled with practical experience lays a foundation for how to try cases. Yet without my soul, this singular knowledge all but betrays me. Without another dimension, thoughts and ideas are nothing. Armed with knowledge alone, my ability to express feelings and emotions is compromised, and I lose the universal language that holds the meaning of life. That is the truth born through moments of being present with other people with our most authentic self.

The depth of our feelings and emotions mirrors the depth of our connection to those around us. At a minimum, emotions are a barometer of truth. With these emotions, we transmit messages for others. When our emotions are grounded in the truth of a shared experience, we will never be rejected. Even more, they only grow and amplify in unexpected paths of compassion and beauty, and, sometimes, they result in offers to help from complete strangers, like a juror.

Be Who You Are by Gerry Spence