Trial Lawyer Talk, Episode 59, with Joey Low Part 2

Transcript of Episode 59, with Joey Low, Part 2

Joey Low is an expert at framing the story and getting to the heart of the universal truths of a case. He discusses a civil case for a 76-year-old woman who was in a car accident and suffered broken bones and mild traumatic brain injury. The case was a “red light, green light” and “he said, she said” case meaning there was no proof of what color the stop light was or who was at fault. Unknown to Joey until the trial, before Joey was retained the client had responded to discovery suggesting that the accident was the client’s fault.

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Joseph H. Low, http://www.attorney4people.com, has a national reputation for his expertise in trial law. He has conducted trials all over the country in Federal, State and Military Courts. He focuses his attention in representing people who have been bullied by corporations and the government. Areas of his trial work have seen him with victories for his clients including personal injury, medical malpractice, business litigation, civil rights violations and criminal defense.

Joey framed the value of this case by showing the jury who his client was and how she showed up for others. The value wasn’t about her age or how much time she had left on earth, but instead about the life she had led up until the accident. As Joey said, “it was important for the jury to see everything that was there, not just what wasn’t there any longer.”

A legal immigrant to the US, Joey’s client learned English, got educated, became a nurse and earned American citizenship. She had a “special connection serving others who couldn’t serve themselves.” After the accident, she had anxiety, fear, and isolated herself from her family and community. The accident not only changed her, it also changed other’s experience with her.

After showing the jury who his client was before the accident, Joey addressed the absence of proof of the accident by telling an intriguing story and asking the jury to determine, “who’s earned the right to be believed?”

Scott Glovsky:

Welcome to Trial Lawyer Talk. I’m Scott Glovsky and today we have a great case on Trial Lawyer Talk. Joey Low is going to join us again. He previously told us a fantastic story about a criminal case that he worked on. And today he’s going to share with us the story of a civil case. Joey really is an expert at looking at a case and finding the story and looking at ways to frame the case and frame the story that will get to the heart of the universal truths of the case. This story is very insightful for all of us. So let’s get started.

Joey, can you share with us another story of a case that had a profound impact on you?

Joey Low:

Sure. I mentioned it a little bit on the way up the stairs. I had dinner last night with a very well educated and accomplished neurologist who specializes in traumatic brain injury. He was the expert/treater on a case I tried a couple months ago. What he said to me last night was as he shook his head and had a inquisitive smile on his face, he says, “I don’t understand.” He goes, “How did you get that much money for that old woman?” And I asked him, I’m like, “What do you mean?” He goes, “Well, I’ve been telling some of my colleagues what the result was and they do some forensic work, some med legal work. And they’re saying, ‘That’s not real. That’s not possible.'” I go, “What are you talking about?” He says, “Well, I tell them, I say the woman was 76 years old. She had all kinds of difficulties such as diabetes and early onset for Alzheimer’s and back issues, et cetera. She could be dead any day now. She’s not going to be alive that much longer.” Why would they give her $11 million? None of them can understand it.

Then he proceeded to say something complimentary and I cut him off again. I said, “Look, I don’t think you understand.” And he just looked at me and I said, “If we merely look at her like a cell phone whose battery is about to expire, it’s on the 1% mark, what you’ll feel is that, well, that person can’t do anything for me. They’re almost out of energy. For me, when I look at that cell phone, what I see is all of the people that they put that energy into so they could recharge those other people, they could make their lives better. They could show them love. And that is entitled to be respected and that dignity that goes with that kind of commitment towards others is what the real value of that phone is. Not what the battery life is. And that’s what they paid for, what she stood for and what she had been worth up to this point. And that’s why.”

“Then I want to ask that you tell your friends that or your colleagues, so that next time they actually are willing to take some person’s money in order to come in and tell the jury why this person’s health has value, that they’ll see everything that’s there, not just what’s not there any longer.” And with that he shook his head and I won’t bore you with a few other nice things that he said. But he changed, he saw the same set of facts, if you will, the same football game. But he now saw, he got up out of his seat and walked around and saw it from a different seat in the stadium. Instant replay has shown us all depending on where you’re sitting in the stadium, seeing the same set of facts can make all the difference as to what kind of truth you get out of that.

Scott Glovsky:

Tell us the story of that case.

Joey Low:

The story of the case was, the reason again it comes to me, is because the lawyer didn’t really want to try it. They were offering, I don’t know, about $450,000, $500,000. And the reason why, it’s a he said, she said case, which means that she’s got her version as plaintiff and the defendant has his version, there’s no other witnesses. And it’s a red light green light case, which means that depending on the car, the light determines who’s at fault. Problem is, there’s no proof of what the color the light was other than he said, she said. That’s it. And when you combine that with the fact that now you’re asking a jury for a lot of money as a result of what happened to her, instantly they’re going to assume, well you must be lying because you want a lot of money.

Those were some serious problems. But even more than that was again the age factor. Look, clearly if you can even prove that it’s not her fault, I mean, what are the real damages going to be? Sure, okay. Maybe she had a brain injury, mild traumatic brain injury, and sure, broke some bones in her hand, but she’s retired. She just sits at home anyway, who cares? And that’s what I decided to make the story about again, was it’s not about a car wreck case and it’s not about a broken hand or a mild traumatic brain injury. That’s an event that happened. The real story was about a woman who had come to this country because the one that she lived in wouldn’t give her or her family a chance to be able to eat three meals a day. Forget driving a car, having nice clothes, having functions. They struggled to see on a good day if they could actually have two meals. They didn’t really have to struggle cleaning the house because it had a dirt floor and let’s be honest, what are you really going to do with that?

But their village was alive with a lot of gossip and stories about this place, this land where the floors were made of shiny marble and that people were fat because they’d just eaten their sixth meal a day. They eat every two and a half hours thinking to lose weight by doing that. That they have nice clothes and they go to parties where people dance and play live instruments that can be amplified with electricity so that then you could feel them. I mean these were completely foreign concepts. She was able to come to this land legally, where she worked to get her citizenship. Where she didn’t speak the language, but she went to school at night to educate herself in English and then she went to school during the day to educate herself to be a nurse and she worked.

Then when she graduated she became a nurse and it was her decision early on that she just felt a special connection with serving others who couldn’t serve themselves. To be the kind of person where she would wash their feet, literally their feet at church, even though she had so much seniority and had done so much Bible teaching, if you will, at this point, that she’s the last person they’re having wash their feet. But it’s something she liked to do.

She cared for the sickest people that the hospitals had to offer and then there was a position that came open in the kitchen, which she really liked and she then would cook all the food for everybody in the hospital. Then also when she retired from that, wasn’t willing to stop working, decided to stay on as the janitor. Where again, she cleaned up all the garbage and cleaned up all the materials late at night after folks. And in service again with people, her sister, who she dearly loved, unfortunately lost her life to cancer and lost the struggle with breast cancer. Her sister had left behind a 13-year-old girl whose daddy wasn’t interested. So she took her in her house not thinking a thing of it.

What else would you do? She loves the girl and cared for her and took care of her, raised her up, gave her a great life. Go to all her cheerleading events, just showed up for her on everything. But was still a really good leader, mentor. Didn’t spoil her, never had to discipline her, but was very direct with what is a good way to look at something and maybe something requires some more thought. As the niece would testify, “My aunt was very good to me in a very direct way. I oftentimes wanted to do some of the things that young girls want to do and she’d never tell me no. She just helped me articulate the consequences that could come from bad decisions and then leave it to me to decide which. At that point, there’s really no decision but she had a different way. Very loving woman.”

We then talked about how now that she’d finally retired and saved all this money and had her house, what she was going to do, and her best friend told the jury about how she wanted to go back to where she was from and travel. She wanted to go to a few other countries where she learned through her studies, historical points that she thought were interesting and that she really connected with. She wanted to go to places where there’s certain kinds of live music that were born there. She was a historian, a hobbyist anthropologist, but she never got a chance to do that.

She’s old school and she pays all her bills by writing them out with the piece of paper that comes in the mail and the check, put it in the envelope, put a stamp and she doesn’t like leaving her mail out on the doorstep or the mailbox there. She was raised from her village that the only way to guarantee the mail is going to get sent is you got to take it to the post office because it’s safe there. So she literally gets in her car twice a day and drives to the post office.

But on this particular day it was the third trip. Now sometimes when you hear the saying, sometimes the third time is the lucky time. But this time it may prove to be something different. You see, her niece who she had bought a car for because her niece’s credit wasn’t good enough, she co-signed it. And on this particular day her niece tells her that she had missed the payment. It was still within the 10 day grace period. But she’d just go ahead and send it in at some point when she could. And she says, “No, I’ll tell you what I’m going to do. I don’t want this to ding your credit so I’m going to pay it for you and you just pay me when you can. So why don’t you give me the piece of paper,” which she did. And she wrote out a check herself for her niece, put it in the envelope, got in her car, drove to the post office, put it in the post office and was coming home and that’s when it all changed.

In that moment, as she’s waiting for that light to go from green to yellow to red, she was sitting in an intersection waiting to make a left hand turn. When she pulled out, it wasn’t safe to turn left because there were cars going the other way that were in the intersection. So you had to wait ‘til that time when the lights change, and you have a couple seconds to leave the intersection safely.

Unfortunately for her, when she did that, there was a guy who was supposed to be at work, had clocked in that he was at work, working at the hamburger stand. But he wanted to run a personal errand. Didn’t call and ask for permission. He was the manager, but he’s supposed to ask the regional manager if he can leave the store, which he’s not supposed to, and he didn’t. So he was on his way down to another place to pick up some court papers where he’d been served for not paying child support and was trying to hustle back. And when he came to that light that went from green to yellow to red, instead of putting on the brake and slowing down and coming to a stop, guess what he did? Right. And as he went to try and blow the light to see if he could make it, he didn’t. He T-boned her and caused her car to roll over and it crushed her hand and broke her hand and hit her head and gave her a mild traumatic brain injury.

And from that day forward, she has been a completely different personality because as you’ll learn and the jury learned, that when you get a mild traumatic brain injury, some people, it’ll change their personality depending on what part of the brain was injured. And it did in this case. It caused her to become very paranoid and afraid and a lot of anxiety. The way she would cope with that now is lock herself in the room and not come out. That changed her grandkids’ experience and their relationship, her niece’s experience, and her husband, everybody. She lost contact with her entire community, mostly her church, where that’s her community. Those are the people she loves and who love her. She’s like the walking wounded now. You wouldn’t know it to look at her and you’d just think she’s kind of odd when you talk to her. But there’s a lot of odd people. But there will be people here to tell you who’s missing in action and the impostor that’s wearing her clothes.

That’s the story that we told the jury and they got to hear about the things that she’d shown up for and done for others. When it came time to ask them to value what had been taken from her without her permission, which is important, that’s the value they came up with. Now, there was one fact that was a real problem that I would have liked to have known about before the trial started. And when you do these cases, which is basically try other people’s cases, one of the things you learn to ask for is the paper discovery or the paper evidence that comes from you asking questions. Because in those questions are usually questions about be specific about how that collision occurred. And you want to see what the lawyers representing your client had to say in the past because usually it’ll be relevant at trial. And if there’s a disconnect or a contradiction between the two, you need to know that to be well prepared.

I asked for that information and I got the answers that were given six months before trial. But what was not given to me or even told, is that the referring lawyer who I’d never met, he had answered the questions early on hoping for a quick settlement, didn’t get it. And what he’d said in there was that the light was the wrong color to have been if the defendant was going to be at fault. He said that the light was green for that defendant. So the case is over, there’s no liability. And I wasn’t aware of it. I had to learn about it in the trial.

Scott Glovsky:

Wow!

Joey Low:

Yeah, where they blew it up in a huge foam board. And when also asked, “please describe how it did happen,” and they write there are no facts to support how it happened. Clearly I have a much more elaborate story at that point. It looked kind of bad. Those answers are under oath and I didn’t even get a chance to ask her about it. I didn’t get a chance to deal with it in voir dire or opening statement or on her direct exam. Didn’t like the way that felt. But the way I dealt with it was something that I came up with and I used in the closing.

And it was this: I told the jury that this case is a he said, she said case, but who had earned the right to be believed? What I did is I compared her life and what she did in service for others to his life and what he did in service to himself. And there was more specifics I haven’t gone through. I said, “Who’s earned the right to be believed?”

And then I asked them this, I guess if you will, question or scenario. I said, “Imagine you’re standing on the top of a waterfall. The kind you see people jump off of if you’re in Hawaii or exotic places like Thailand or so forth. And you look down, you see that tranquil pool down there and it’s a long ways down. It’s going to be a good jump. But you’ve seen people do it on your walk up. You just didn’t see whether they hit the bottom and just saw some people walking up there. And when you get up there, you look over and you’re trying to figure out, do you jump? If you look down and you see the defendant and he’s in the tranquil pool and water’s about chest deep on him and he looks up at you and you look down at him, you say, ‘Hey, is it safe to jump?’ And he looks up at you and he says with a crooked smile on his face, ‘Oh yeah, you bet it’s safe.’ I want to see jump.”

“You look down there again and you see Mrs. McFoy,” that’s the plaintiff, Norma McFoy. You say, “Norma, do I jump?” And she says, ‘Honey, I wouldn’t if I were you. A few folks have tried it and they’re not here anymore and nobody’s done it here today. I’m down here in the water and I’m telling you because I’ve been there. It’s not deep enough.’ In that moment with everything you know about him, the defendant and everything you know about her, what do you do? Do you jump? Same answer to that question should be the same one you answer when you go back and you fill out that verdict form about who’s negligent and who’s earned the right to be believed.”

And that was the story I told them. When asked afterwards when the verdict came out for the $11.1 million, of course the defense lawyer was incredulous, couldn’t believe it, was angry. And that’s okay, I’m okay with that. He asked, and one of the jurors says, “As soon as Mr. Low told us the story,” they called it the story of the waterfall, “I knew right away.” Now, he didn’t speak for everybody. And I’m not going to tell you that the other 11 felt the same way, but the ones that were standing there when he said that, which was about another four or five jurors right there. There were 9 total who stayed after to talk, heard him say it and some of them shook their head. No one said, Oh yeah, we all agree with the story.

But I believe it was helpful in being able to categorize and properly give value to what is important in this case. And that is people are a lot more than their age or a lot more than what little time they may have left. And the way they have lived their lives is best demonstrated by showing the commitment they have demonstrated towards others. And because I spent a lot of time focusing on that, none of which was in any of the depos. That stuff’s not in there. But by consciously going out and looking for it and not quitting until I’ve talked to enough people where I have at least three good examples of that and people who can tell the story credibly.

That’s how you get uncommon numbers for very difficult cases in jurisdictions where after my closing, before the verdict, the court reporter came up and said, “Mr. Low,” she said she talked to the court clerk, “we think you did a nice job with the case, but they’re just not going to give you that kind of money.” I believe I asked the jury for $23, $24 million. “They’re just not going to give you that kind of money. I mean, this jurisdiction, that case, you’re going to get somewhere between, I don’t know, low end $750,000. Maybe if you’re lucky, $2 million. It’s not you, it’s just that’s these juries. Just they’re really stingy here.” I would’ve been fine with that. Norma McFoy would have been fine with that, but the jury wasn’t.

Scott Glovsky:

Were you surprised?

Joey Low:

No. No, I wasn’t surprised. I’m surprised what the court reporter said, not because it’s wasn’t true. It was true. I’m just surprised that she has probably seen more trial lawyers than any of us have. It’s a long-time court reporter and that’s been her experience as a result, that it just doesn’t happen. And isn’t that sad? That’s what surprises me because the information’s out there.

Scott Glovsky:

Is it true that you reverse roles with people every day?

Joey Low:

Yes. Oh, that’s true. I was lecturing at a lawyer conference in Florida the week before last. They had me do a couple of days for them. One of the questions was, well, we just saw you do a voir dire with no preparation. How do we do it like that? And I said, “Well, you didn’t see the preparation.” They go, “Where did you have time to do it?” And I said, “Well, I do it every single day.” And they go, “What do you mean?” I go, “Well, one of the things I’m trying to show you is if you’re going to ask a juror a question, you have to be willing to really be interested in the answer or don’t ask it.”

And being interested in the answer means that you’re quiet and you’re tuned in and you’re present while they’re giving you the answer. You’re not just being quiet while you’re waiting to respond or cut them off or think about the next thing you’re going to do while they’re talking. You’re actually just sitting there and you’re reversing roles with them. And you’re asking yourself, “Now that I’m them, how does this make me feel to say these words?”

I practice that every day, all day with everybody I meet. So when I go to the grocery store and the person asks me how I’m doing as they’re reaching for my groceries out of the basket and putting them across the scanner, I actually stop. I clear my mind and I ask myself, “Well, how am I feeling?” When it comes to me, I put a voice to it and I’ll give them an answer.

And then when I ask them the same question, I don’t do anything else. I don’t take the card out of my wallet. I don’t reach for another item. I don’t look at the magazines that they’re trying to get you to buy. I sit there and I tune in 100% with what it is they’re saying and how they’re feeling. And if it strikes me right, I reflective listen, which means I’ll say based on what I hear you saying, I think you’re probably feeling this. And it’s amazing what comes out of that. You get instant connections. You get people who feel listened to and feel cared about and as a result they’re happy to share with you and now they’re happy to have a relationship with you.

You have to do that every single day because for some strange reason, it’s not a natural act. It should be. But the society has changed a lot from 50 years ago when you all lived in small towns and gossip was the way the news got passed. And everybody knew what everybody was doing. Those days are gone. When was the last time you even met your next door neighbor? I mean, people actually live on your block. We don’t communicate all that well. We sure as hell don’t tell people how we’re feeling, because no one really cares to hear it. So yeah, I do it every day.

Scott Glovsky:

Joey, I want to thank you first on a personal level. I followed you around at the Trial Lawyers College to learn from you for years and I’ve learned a tremendous amount from you. I want to thank you for your help in personal psychodramas, teaching me things that at times I wasn’t ready to learn. And thank you for sharing with all of us these stories. I look forward to learning more and being around you and learning from you and helping my clients through the gifts that you’ve given and passing them on. Thank you brother.

Joey Low:

You’re very welcome and let’s get to it. We got a lot of work to do, so thank you. Thank you for having me.

Scott Glovsky:

Thank you.

Thank you for joining us today for Trial Lawyer Talk. If you liked the show, I’d really appreciate it if you could give us a good review on iTunes and I’d love to get your feedback. You can reach me at www.scottglovsky.com. That’s S-C-O-T-T-G-L-O-V-S-K-Y dot com and I’d love to hear your feedback. You can also check out the book that I published called Fighting Health Insurance Denials: A Primer for Lawyers, that’s on Amazon. I put the book together based on 20 years of suing health insurance companies for denying medical care to people, and it provides a general outline of how to fight health insurance denials. Have a great week and we’ll talk to you in the next episode.