Reawakening: Exiting the Fog and Understanding What Really Happened In 1992

The first case I ever handled as a trial lawyer was one that I brought against a health insurance company that refused to pay prenatal hospital charges for a young family. After a difficult pregnancy, the young family found themselves with a baby with special needs coupled with crippling debt from the hospital bills. The health insurance company who was supposed to cover this family's bills was too big, too powerful, and too rich to bother responding to this family's countless requests for help.

At the same time, I was having my own problems. When I was handed this case, I worked at a small law firm and had only been an attorney for 9 months. On the other side, the lawyer representing the health insurance company was a local legend who worked at a fancy firm in downtown Denver with more than a hundred attorneys on the payroll. Understandably, this lawyer was very arrogant and I had to reintroduce myself to him every time we met. Plus, with the trial quickly approaching, I could not seem to get my senior partner to give me a moments' attention on the case. Oddly enough, I had to reintroduce myself to him several times as well.

The case against the insurance company is what we lawyers call a bad faith insurance claim. I had to prove that the insurance company knew darn well that they should have paid my client's medical bills and willfully refused to do so. To prevail on these claims, it usually requires testimony from doctors and insurance industry experts. Unfortunately, I had neither.

My senior partner had a long history of being a cheapskate. Accordingly, he was not willing to devote the money and resources necessary to hire the experts we needed to win the case, because they were too expensive. The only resource at my disposal that my senior partner did not restrict was the taking of depositions.

As a result, I set deposition after deposition in this case because I knew that otherwise, we would get creamed at trial by all of the insurance company's hired experts. My only shot was to bluff opposing counsel into thinking that that his own experts would fold under my blistering cross-examination. However, my boss would not let me take depositions of any of those experts because they charged for their time and it would be too expensive. Instead, I had to limit my depositions to employees of the insurance company who could not charge for their time.

The other problem I faced in this case was that I understood nothing about prenatal medicine, insurance industry standards, or hospital billing practices. All of these areas required the involvement and knowledge of experts. Again, it cost money to consult with experts, so my senior partner would not approve such expenditures.

With little chance of prevailing, I set depositions for every employee in the claims department who had the misfortune of ever touching my client's file. I decided that my questions should not be focused on technical knowledge of medical terminology, legal jargon, or insurance industry standards. Instead, I would focus my questions on what I did know—that insurance companies try their hardest to keep their money by denying claims.

I asked these scoundrels questions like how many children they had, how often they had come out to the hospital to visit my client's special needs baby, and if they had considered what it would be like to be the parent of a newborn baby who was barely clinging to life. I asked these "suit and tie" types if they knew what it was like to get a massive bill from a hospital that they knew they could never pay. I asked them if they had a shred of sympathy for what my poor clients had gone through.

I knew full well that I would never be allowed to ask these questions in trial. Luckily for me, in a discovery deposition, nearly any type of question is permissible. At one point during a deposition, after a particularly blistering series of personal questions to a claims supervisor, the seasoned defense attorney began to shake his finger at me. He condescendingly told me that I didn't have the first clue about bad faith law.

On another occasion, he threatened to call my boss to discuss my "outrageous" conduct. My boss spent most of his time scuba diving, so this did not concern me. During the final deposition, the defense attorney's voice began to get louder and a little bit shaky as he told me, "I know exactly what you are trying to do here!" To this day, I wish he would have filled me in as to what he thought I was doing, because I was in way over my head and had no clue what I was doing.

He stood up and announced that he was not going to waste his time or his client's time any longer and terminated the deposition. Next, he angrily grabbed his fancy briefcase and stormed out of the room with his team of sniveling associates following closely behind him. I was certain at that point that I had completely blown my first case as an attorney.

Nevertheless, a few days later, I received a call from that old lawyer. When I picked up the phone, he made it a point to tell me that he was calling me from his private jet. I will never forget what he told me next. He started by calling me "Chad." I found this interesting because he often called me Chet or Chase during the earlier depositions. He then went on to say that he had finally convinced his client to make an offer to settle the case. The insurance company was willing to offer my client three times the value of the medicals bills that the insurance company had initially refused to pay.

Still in character, and still in shock, I sternly asked, "Why on earth should my clients possibly consider such an offer?" His response was to cite two or three statutes that I had never heard of that established that under Colorado law their current offer was the most his client would ever have to pay, even if we prevailed at trial. The old Harvard-educated trial god who had spent days during depositions telling me how stupid I was for wasting everyone's time was offering me a monetary settlement that amounted to the best possible outcome for my clients. The case settled shortly thereafter. I never had to introduce myself again to him or to anyone else at the downtown law firm with 100 attorneys. From that point on, I was known as the lawyer who forced the legendary defense attorney to surrender unconditionally in a matter of a few depositions and nothing else.

For the last twenty years, I have headed thousands of cases. I have hired tens of thousands of experts and have won and lost numerous trials. For a long time, I thought I had won the case against the legendary attorney merely because he bought my bluff. However, late last year, I experienced a professional reawakening and realized what the old legend knew 20 years ago. Trials have nothing to do with the experts you hire, your lawyer's knowledge of the law, or the pedigree of your trial attorney.

Why did I lose cases when the experts were on my side? Why did I lose cases when the law and even judges were on my side? The answer was so simple. The old man screaming at me in 1992 nearly blurted it out then. Cases are won because of the human drama involved. Trials are won or lost by the gut reaction the jury experiences when they are told the plaintiff's story. If the jury hears your case and can see themselves in the face of your client, YOU WIN! Why do lawyers even take cases? They take cases because something in their gut says "this could be me." The client's story touches a nerve and makes you want to roll up your sleeves and go to work to do everything within your power to help that client.

Simply said, the reawakening for me was that we as lawyers need to stay true to the gut reaction we feel the first time we hear a client's story. We need less experts, less legal jargon, less PowerPoint presentations, less flip charts, and less of everything that makes us seem so lawyer-like and disconnected from the general public. This reawakening requires attorneys to take off their lawyer hats to rejoin the human race. We need more empathetic presentation of our clients' cases and more emphasis on what made us want to take those cases in the first place. This is legal humanism.

Since this reawakening, I have fired experts, scrapped long and windy timelines and story boards, and done away with PowerPoint presentations. Instead, I have gone back to bringing focus groups together before trial to tell them my client's story. I work on telling my client's story in an accessible and empathetic way—the way I was told the story the first time by my client.

CONCLUSION:
This reawakening has resulted in great success for my clients. Recently, the attorneys at Anderson Hemmat, tried three successful jury trials within a month of each other. Each trial ended with our clients receiving huge verdicts because we simply told the juries our clients' stories. If you have been injured in an auto accident, we want to tell your story. We want to meet with you, hear about the pain and suffering you have suffered, and help you receive the compensation you deserve. Please call and speak with one of our attorneys today.