Experienced Litigators, Taking On Challenging Cases Since 1994

You Just Passed The Texas Bar Now What

You are brave enough to go into private practice! Congratulations, it will pay off!

You want to practice law as a plaintiff personal injury attorney and help people. Good choice!

You take on a couple of car accident cases.

Questions start to come up that you have no clue how to answer, you feel a bit unsure, but you are motivated to look for answers. Wise move!

What next?

Step # 1

Join your local trial lawyers association and sign up for the email list. If you live in the Dallas area, check out the Dallas Trial Lawyers Association by clicking here.

Step # 2

Join your statewide trial lawyers association. Check out the Texas Trial Lawyers Association by clicking here.

Step # 3

Start reading the email listserve that these organizations manage. Here is what your reading will reveal:

  • There is a large group of experienced trial lawyers that are willing to answer your specific questions, in public or private, if you email them directly.
  •  You are not alone. The plaintiff trial lawyer community is very supportive of each other.

Plaintiff lawyers stand up to corporate American and the insurance industry every day and we all realize the truth of Benjamin Franklin’s quote, “We must all hang together or, most assuredly, we shall all hang separately.”

Welcome to the plaintiff trial lawyer community.

How To Add Value To That Which Is Priceless

How to value that which is priceless is the title of Chapter Four in Nicholas Rowley & Courtney Rowley’s new book, Running With The Bulls, How To Win Top – Dollar Settlements.  As the book begins, the point is made that many lawyers undervalue personal injury cases for two main reasons.  First, many lawyers are afraid to say “no” to unreasonably low offers and take their clients case to trial. And second, those who do reject unreasonable settlement offers often fail to spend the time it takes to get to know the story of the “human” they represent.

As the book warms up, the Rowleys ask the reader to write out how they would calculate the answer to the following question, “How much money would be reasonable to give you (the reader) in trade for a year of chronic pain in your left foot?”  The reader is instructed, “…you cannot continue reading this book until you answer these questions.” 

I followed the instruction.  Here is my analysis on how I would calculate a trade of money for a year of chronic pain in my left foot.  As a hopeless optimist I am sure I have way underestimated the impact chronic pain would have on my life.

In this hypothetical question, I assume I would notice this sharp pain on a daily basis and it would be the kind of pain that would make it hard to do my job.  Because I enjoy being productive at work and how this pain may affect my ability to think, would make the amount of money I would accept rise significantly. There are few things I enjoy more than a good night sleep, waking up early with a clear head, drinking a cup of black coffee and working for three hours without interruption. Chronic sharp ankle pain would no doubt affect my ability to get a good night sleep.  I have had pain that wakes me up at night and it is frustrating to not wake up refreshed and sharp in the morning.  The unknown of how chronic ankle pain would affect my ability to work happily and productively requires significant monetary compensation – $200,000.

Chronic ankle pain would also impact the Orange Theory Fitness classes I currently enjoy once a week.  The typical class consists of about 20 to 25 minutes of running on a treadmill. Chronic ankle pain and running do not agree with one another.  So I take $500 per class, times four classes a month, or $24,000 for the reduced ability to enjoy my Orange Theory exercise routine.

When traveling with my family, there would be increased ankle pain as a result of all of the luggage I carry through the airport for my family.  We average three plane trips a years; the added aggravation of hauling carry on luggage through the airport with pain in my ankle, three times a year, $1,500 per trip or $4,500.

About once a month, I enjoy going for a jog or brisk walk up to Phoenix Lake which is about two miles up a road near my home.  This activity is a good way to clear my head and get some fresh air. Sometimes my wife and I go together, and the result is some good quality time with my wife without interruption.  Chronic ankle pain would certainly dampen the fun of this activity. My doctor may not even allow it as the running and hiking may cause even more injury. Losing this mind relaxing activity and time with my wife, $1,000 per outing, time 10 times a year, $10,000.

During the work week I take the stairs for extra exercise, to get my heart rate up, and generally wake me up during the work day.  Stair climbing would cause extra ankle pain and would likely be something I would now avoid during a year of chronic pain, $100 per week, or $5,000 per year.

Each winter, our family skis on average five to seven days.  I may be able to still ski in pain, depending on what my doctors says. But there is no doubt that the impact an ankle joint takes skiing moguls would be painful, and potentially aggravate the injury.  Skiing would not be as much fun. $1,000 per lost ski day or $5,000.

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My evenings at home with my family would be impacted.  I would be less focused on my wife and kids as I tried to suppress the chronic pain while talking.  The pain would make it more difficult to be present with my wife and kids. Evenings at home also involve standing, helping to make dinner, and then doing the dishes, activities that may aggravate the ankle pain.  At $300 times five nights a week, or $1,500; times 50 weeks a year totals $75,000.

Impact on ability to think clearly at work: $200,000

Impact on OrangeTheory Fitness Routine: $24,000

Added pain with Family Air Travel: $4,500

Outdoor time in Marin: $10,000

Avoiding stair exercises during work week: $5,000

Reduced ability to enjoy skiing: $5,000

Pain at home doing chores and being present with family: $75,000

TOTAL: $323,500.00

This all assumes I knew with 100% certainty that the pain would go away after twelve months.  Not knowing if the chronic pain was going to get better after 12 months would make the amount needed to go through all of this much greater.

Have I not ever settled a case or tried a case where I have asked for $323,500 for one year of ankle pain?  This exercise made me think. If I put such a high value on a pain free life, why am I not putting this same value on the lives of my clients?  That seems to be the point Nick and Courtney are making in Chapter Four. More to come as, I continue to read Running With The Bulls.

 

The “Dart Out” Pedestrian Case

In San Francisco we often hear some incarnation of the following: “I just didn’t have time to avoid her” or “I just didn’t see him until it was too late” or, “she just came out of nowhere?”

Statements of this nature, attributed to the driver, regarding the unfortunate pedestrian they just ran down, speaks volumes to our decision making process to take on a car versus pedestrian injury case on a contingency fee.

Consider the following facts.  A family arrives at my office door with grandma in tow.  She reports that she was walking in a crosswalk when she was struck and severely injured.  Ominous dark clouds begin to form over my desk as the police investigation is handed over. Sure enough, the police department determined that granny had stepped into the intersection a significant distance away from the closest crosswalk, and that the driver of the commercial truck had no time to safely avoid her.  There is no associated factor; all the fault is placed on granny. In the litigation world, this case is, at best, severely compromised, and for many a non-starter.

Let’s continue.  Grandma is elderly, over 80, a late-in-life arriving immigrant, does not speak English, her faculties are in question and she is a poor historian to the events leading up to the incident.  All of which was further complicated by missing time due to an apparent collision-sequence concussion. The witnesses are mixed, generally unfavorable, and significantly, grandma’s path of travel to the approximate area of impact is in question due to the lack of photographs or physical evidence in the roadway.

Though my coffee had run inextricably cold, undeterred, I was already visualizing my ace-in-the-hole and the next 18 months of litigation against State Farm.  By what method could I have conjured such confidence? Am I crazy, or are there some basic issues present that assures me of factual issues, yet revealed, that are game changers to this fact pattern?

Here, is the first question that is the building block of all things that follow:

  • How did granny get from a place of safety at the curb to the alleged area of impact without the driver ever having seen her?  
  • How long did it take granny to get from the place of safety (the closest curb in this instance) to the area of impact?  
  • What was the driver’s perspective of what he could see during this window of time?

For the rest of this discussion think of the area of impact as the-zero-point both in terms of time and distance.  As we proceed to do a bit of number crunching, we are going to work with granny as a base-line. Adult pedestrians usually cover three to four feet per second while walking at a leisurely pace.  Granny, in this instance, was in fairly good health. She was a walker, and the family reported that when they walk with her they do not feel like they have to slow down for her to keep pace. With that, I proceed to work with a 3 ft.-per-second walking pace.  The area of impact was approximately 15 ft. into the intersection, so I was now working with a (curb to area-of-impact time) of approximately 5 seconds. Stated differently, it took granny approximately 5 seconds to get from the place of safety at the curb to the alleged impact location in the intersection.

The next part is just as easy.  The truck’s path of travel was not in dispute; and rarely is in these cases. However,  speed was at issue. As you might expect, the defendant driver testified on the low side and granny was on the high.  Nonetheless, for the purpose of this exercise if I simply took an average of all the available testimony on speed, the average calculated to 10 mph.   Stated in feet per second, the truck was traveling at 14.67 feet per second in those 5 seconds of granny’s walking time.

Here is the fun part.  I then multiply 14.67 times 5 seconds and I get the approximate distance that the truck is from granny when she first steps off the curb which calculates to just over 73 feet or a ¼ length of a football field!  Now, I then walk out the 73 feet downstream from the area of impact and put my eyes where the truck driver’s eyes would have been to see what the truck driver should have been able to see at 5 seconds to impact.

Sure enough and to no surprise, the truck driver, so long as he is looking, should have seen granny at the curb and at every location along her path of travel as he closed in on her to the zero-point at the area of impact.  No obstructions existed.

The result is definitive.  The driver could see granny, so long as he is looking out the windshield.  He has time to take appropriate actions, so long as he is processing what is in front of him.  In these cases, it does not matter if you change the variables within acceptable and logical parameters.  Here, if either granny or the truck is slower or faster it still comes back to the simple issue.  There is still time to avoid granny if the truck driver was paying attention.

The final step is video and photography that memorializes the visibility reconstruction outlined here.  As an example photographs depicting the truck driver’s perspective of the 5-4-3-2-1 seconds to impact perspective, fundamentally rocks the core of “I did not see her” or “there was no time to react” or in this specific case, “she came out of nowhere.”  Doing the same for all the speed and distance variables serves to kill the backup argument that plaintiff has manipulated facts to suit their needs and belays the objections at trial.

What you are left with is the following.  What was the driver doing for those 5 seconds given that granny is clearly visible to the driver; so long as he is looking ahead?  In this case and every case of its kind, there is no good answer to cure this fatal flaw.

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In sum, this case went from how fast could I say “no thanks” to settling the case for a reasonable sum of monetary compensation despite a poor police report and a compromised client.  It can be done. You just need to understand the tools that exist and how to effectively apply them in your next automobile versus pedestrian injury case.

This blog was written with Walter A. Haynes IV, a personal injury lawyer, certified expert as an Accident Reconstructionist and former California Highway Patrolman.  He can be reached at 415-762-0040 or via e-mail at walter@stoll-law.com.

Advice to a Younger Me

My journey as a self employed trial lawyer began in August of 1994, the day I got fired from my first job as a lawyer.  Getting fired is not as bad as you might think. It happened around midday, when I was asked to go see Francine Curtis, the firm’s managing attorney for the plaintiff’s asbestos law firm of Brayton Gisvold and Harley (BGH).  I walked into Fran’s small office which was packed with legal files and documents. Fran was behind her desk and David Donadio, the managing attorney in training, was seated to my left. I learned quickly that I would no longer be working at the firm. I was handed an envelope with a $2,500 check inside and told that I was free to go.

I have no memory of what I said to Fran and David at that moment.  I did take a look at the check; $2,500 seemed like a lot of money to me in 1994.  I was told to get my stuff, which was nothing, and go. I was stoked to walk out the door of the law firm on that beautiful summer day in 1994.  I got into my 1981 Toyota Celica and drove back to my apartment on Buchanan Street in San Francisco’s Marina district.

The Law Office of Albert G. Stoll, Jr. was officially open for business.

I felt no sadness the day I got fired by Francine Curtis.  The moment I realized I was being fired, a warm feeling of happiness and joy permeated my body.  “Thank you, I feel much better now. I am free.” sums up what I would have said to Fran and David that day.  I had no worry in my body, just excitement and a strong desire to get to work being a plaintiff’s personal injury lawyer.  Fran and David helped me on my journey. It would have been much harder to walk into Fran’s office and quit.

But it was time to get to work.  The days began to fly by, one after another, in the blink of an eye.  I would go to work, and look at my watch and it was already 5 pm. I was working hard to start my law firm and learning how to be a trial lawyer.  I loved it!

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This was the first time in my life I had been fired.  It did not seem like the kind of thing I should advertise.  I was not straight with my parents. I told my parents something like, “I decided to quit my job and start my own law firm.”  I could hear the concern in my parents’ voices, “Are you sure about this.”? My parents were too positive to say, “You mean you no longer have a job and you are going out on your own? Are you crazy.”  But I could tell from their voices that they were concerned about my purported career move.

Advice to 26 year old self.  Face the music and tell your parents the truth. Yes, it may be a bit scary. It’s your first lesson as a young trial lawyer. Don’t avoid the truth; face the truth.  “But, but”, my younger self would say, “Can you imagine if I had told my parents the truth. I just got fired from my first job as a real, licensed lawyer, likely because I was not a very good writer, and now I am going to open my own law firm.”  As a recently rejected 26 year old, I was scared of facing the truth. At the time, I did not understand how taking the opportunity to be open, honest, and vulnerable would be a sign of strength that would connect me with my parents and be a skill that would help me succeed as a trial lawyer.

My Very Own Spiderman Case

One of the questions that I am asked on a regular basis is, “What is the most interesting case that you have worked on?”  I have always struggled with this question, especially in recent years, as our firm has begun to work on more tragic cases. They are not appropriate for social settings, simply because they are so sad.  That’s why the Spiderman case is worth sharing. The liability facts are unusual, while the injuries were bad they were not catastrophic, given what could have happened – Death!

Here’s what happened to our client, “Spiderman”.

Walter Haynes and I represented a professional window washer that showed up to work one day to wash the exterior windows of an eight story San Francisco hotel.  Our client, Jim, was a former U.S. Marine, Olympic caliber boxer, and former practice player for the the San Francisco 49ers.

On a summer day in 2011, Jim entered the hotel and filled his water bucket in the basement. Having cleaned the windows at the hotel on 5 previous occasions, he was familiar with the facility.  Jim took the elevator by himself to the 7th floor to complete “a drop”; meaning he would go outside of the building and wash the exterior windows.

Arriving on the 7th floor and specifically room 724, he accessed the floor with his rope, safety equipment, harness, Bosun’s chair (or boatswain’s chair), his bucket and cleaning equipment. As he had done many times in the past on the 7th floor of the hotel, Jim doubled over his 300 feet of rope.  At the rope’s mid-point he tied two figure-8’s and used a D-ring to join the figure-8’s together and thereby securing the rope to the emergency stairwell, which was the only hardpoint to tie to on the 7th floor to accomplish the work. As was typical at this location, he ran the doubled-over rope down the hallway, under a cleaning cart and through room 724 that was open and being cleaned by hotel staff.

Once he confirmed to his satisfaction that everything was in order, he then sat in the Bosun’s chair and began his descent.  Jim, now outside the window with tension on the chair and the ropes, began cleaning. One of the unique features of this kind of work and the work that has to be done to clean adjacent windows of the hotel, is that he frequently uses his feet, knees hands and even an elbow to hang onto the side of the building to clean the adjacent column of windows.  As a result of lifting and climbing on the face of the building, there is no weight or tension on the chair and therefore there is no tension on the ropes leading up the building, into the window, across the room, around the corner into the hallway and through the D-ring in the hallway (where the extra rope is) and down the hallway to the attachment point in the stairwell. So, during a single drop there can be quite literally dozens of times where the weight bearing line either has or does not have tension in the line dependent upon what phase of cleaning and rappelling Jim is in.

Once outside the 7th floor window Jim is facing the building. The window he came out of is to his left and the window he intends to clean is to his right. He is slightly below the window sill but can hang onto it and pull himself up to it for cleaning purposes. The rope went from having tension to having slack as previously described. Jim was positioned under this window and began to reach out to clean the window when he first saw from his peripheral vision to his left that both lengths of rope coming from the window were beginning to spool out the window! When he realized what was happening, he grabbed onto the window sill and began to hang. He yelled out, “Ma’am I’m Still Out Here!” repeatedly. Now, fully hanging from the window, the rope was accelerating under its own weight spooling out the window and it became incrementally heavier and started to pull him down. Jim was being pulled off the building by the weight of his gear, the Bosun’s chair, his bucket of water and the ever heavier rope now fully dead-hanging below him. He then watched a maid close the window that he had come out of – even though the slacked rope was still hanging out of the window! Jim hung in that position for minutes contemplating his death. He was certain he was going to die. He watched the signal lights at the intersection of below go through multiple changes of green, to yellow, to red before his fingers and grip began to fail. The window of the sill he was hanging from was closed. And the window he had descended from was not accessible because the two window sills did not join. There was a gap and the distance was too great. Rather, there was simply a vertical brick façade between the two windows that was un-scalable.

Despite his obvious misfortune, unbeknownst to Jim, he had a couple of things going for him. He had time to think and control his feet-first-posture before his fingers failed. He did not realize it but he would ultimately fall from the bottom of the 7th floor, or perhaps more accurately (given his hanging position) the top of the 6th floor, to a narrow 3rd floor balcony rather than falling on the concrete railing or all the way to the concrete sidewalk below. Jim’s grip eventually failed and he fell feet first. To state it simply, his life was saved by a couple of things. He landed upright and feet first onto commercial grade work boots. He went down and struck his hip (Bosun’s chair first) and impacted his hip with the padding of the chair attenuating the impact to some degree. His entire body narrowly missed a concrete railing and his head only struck the side of the building after the impact with the 3rd floor deck of the balcony.

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Jim, though stunned from the fall, the impact, and amped on adrenaline, combined with the – ‘I can’t believe I’m still alive’ factor – stood up, untied himself from the ropes and stepped into the open window of the hotel to go report the incident to the hotel manager.  

The hotel where this occurred was sued based on a claim of negligence by the maid for moving the ropes.  Jim sustained compression injuries to his low back as a result of the fall. The hotel management took the position in litigation that the event  never occurred and claimed that they had no record of Jim ever reporting the fall. The case settled at a mediation before trial for $200,000.

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