• The Pen is Mightier than the Sword  Not many First Amendment cases get filed. The vast majority—maybe 99 percent—get dismissed. But ours didn’t. Last week we tried an important First Amendment case in the federal courthouse in Richland. 
  • Personal Injury and Suicide  Suicide is a huge topic. Views on suicide are influenced by religion and culture. I think in most cases it’s a last resort to address pain.
  • Personal Injury & Radiation Exposure  We had a client who didn’t want to get an MRI.  He was worried about radiation exposure.  We explained that because radiation is not used, there is no risk of exposure to radiation during an MRI procedure.   Problem solved.  But what about x-rays and CT scans?
  • Grabbing a Tiger By Its Tail  When I started practicing a lot of defense attorneys—and even a lot of defense experts—thought that the term “somatic” was essentially a “get out of jail free” card.
  • Quality Time Left  Very few defense lawyers or insurance adjusters have the guts to say it out loud.  But the subtext from the defense in personal injury cases involving older people is that an injury affecting them isn’t a big deal because they are going to die soon anyway.
  • Pinewood Derby  Even though I’ve been doing this a long time there are some things about every case that feel new. I think that’s because every person is a little bit different, and every case is a little bit different.
  • The Grey Fox, Luxury Goods and Case Value   We want to make our clients three-dimensional.  We want them to be people rather than a collection of demographic data.  The best way to give people that dimension is to be able to tell stories about them.  And the best way to make those stories interesting and relatable is to include images.
  • TBI Mythology: Chapter 3  There’s this idea that a mTBI (a concussion) is an isolated event.  It happens, there are symptoms and, when symptoms resolve, the concussion is over.
  • TBI Mythology: Chapter 1  Myths usually offer simple explanations of phenomena or experiences.  From where did civilization come?  That’s easy: Prometheus stole fire from the gods and gave it to humanity in the form of technology, knowledge, and more generally, civilization.
  • Falling Trees  It rains.  The ground gets saturated.  The wind blows.  Trees fall.  Almost every year there’s a story about someone killed by a falling tree.  During the “bomb cyclone” two people from Bellevue died.
  • Is it Too Late…?  Like most things in life, personal injury claims have an expiration date.  Something called the “statute of limitations” sets the deadline for filing suit.
  • Sleep  In lots of cases we’ve mentioned lost sleep, interrupted sleep, etc. when discussing clients’ damages.  But we treated it like an inconvenience rather than a major component of damages.  It’s becoming clear that it’s a lot bigger issue.  
  • Life Insurance  Remembering 9/11 twenty years after the attacks got me thinking about life insurance.  Everyone was worried about what impact all the claims would have on the industry.  It turned out that an extra 3,000 lives and a billion dollars of accelerated payments didn’t really move the needle.  
  • Depositions: A Page from the Predator’s Playbook  I talked with a reformed defense lawyer the other day.  We were discussing his former boss.  I said that he was a cunning strategist.  The reformed defense lawyer added that he took a great deposition
  • Ice Water Results  Last week I wrote about the Hot-Cold Empathy Gap (HCEG).  The newsletter ended with a challenge:  How long can you hold your hand in ice water?  I’m about to try it now and will share my time in the next newsletter.
  • The Other Guy was Going at Least 30 MPH….  We hear this a lot.  Particularly in rear-end collisions.But there are a couple of problems with this.  At least in its raw form.First, it’s unlikely that the client saw the other vehicle approaching.  Even if they did, it’s really hard to estimate the speed of something coming straight-on (versus from the side).
  • Keeping Up with Inflation More people are fully vaccinated.  There are fewer COVID cases.  The economy continues to reopen.  Labor and commodities are getting more expensive.  Those price increases are passed on to the consumer.  Inflation, which has been relatively dormant for years, is back.
  • MTBI and Seniors “Rule out age-related cognitive decline….”That’s what it said in one of our client’s medical records.  She’d been in a bad car wreck.  But even a board-certified doctor was unable to tell whether her symptoms were from the head injury or just age.
  • qEEG—Concussion Confirmation  Some people have to see it to believe it.  Concussions are perplexing to them.  There is nothing to see.  Diagnoses are based on subjective first-hand reports rather than “objective” testing.Enter qEEG.
  • The Toxic Pursuit of “Certainty”  Defense lawyers use the term “objective” like a dog whistle.  They try to draw a distinction between evidence that should be believed (objective) and evidence that shouldn’t be believed (subjective).
  • Half-Full or Half-Empty?  When things have names, we’re more likely to recognize them. And pull them to the front of our minds. They take on a much sharper focus.
  • Jurors May Not Believe What You Believe  Do you believe in God? Does the Bible provide a foundation for the way you understand the world?  Well, Seattle has the highest percentage of atheists in the country.
  • Risk Tolerance—A Bird in the Hand People are able to tolerate different levels of risk.  Economists and psychologists use a term called “risk aversion.”  Risk aversion describes a preference for “safe” choice even if the average outcome of the safe choice is less than the average outcome of a “riskier” choice.
  • Just One Concussion Doubles Risk of Dementia  Life is cyclical.  You’re BMOC in fifth grade.  King of the elementary school.  Then you’re in sixth grade.  Eight graders are putting you in the garbage can.  The cycle continues throughout life.
  • Mitigating Damages  In almost every case defendants allege that the injured person “failed to mitigate” their damages.  Here’s how the Washington jury instruction (the law the court gives to the jury) reads:
  • Ugly Sweaters and the Law of Supply and Demand  What’s the value of an older person’s remaining life?  How about someone with Stage IV cancer?  The subtext from the defense is always that older people and sick people would have died anyway even if they hadn’t been run-over, dropped during a bed transfer, prescribed the wrong medication, etc.
  • Hoisted on Our Own Petard  I love crime movies and television shows.  Particularly the subset of (as described years ago at Scarecrow Video): Gangsters and Gangstas.
  • Filling in the Blanks  Most clients have a pretty clear memory of how they got hurt. Frequently their memories are punctuated with very specific details.  “That son of a bitch looked me right in the eye before turning left.”

  • Victory in Walla Walla for Motorcycle Rights and the Constitution A federal judge in Eastern Washington just issued a fantastic order for motorcycle rights and the Constitution.  But before we talk about why it’s so powerful it’s important to understand the First Amendment. A lot of people think the First Amendment protects whatever they want to say and with whomever they want to assemble. Not the case.

  • Blaming the Victim in Personal Injury Cases I had an exchange with an attorney the other day. His client’s discovery was late. I asked when we could expect it. He responded that we’d probably have it already if I had followed up sooner.
  • Counselors and the Personal Injury Case  Entourage provides a good frame of reference. If you haven’t watched the series, you should. But it’s not essential to understanding this newsletter.  A lot of people go to counseling. Sometimes individual counseling. Sometimes couples counseling.
  • Unhappy Endings and the “No-No Square”  It’s been tough waiting for the election results this past week.  In fact, almost the whole year has been stressful.  A lot of people are looking for relief.  Massage is one way to de-stress.  Massage is kind of a trust exercise.  You take off your clothes in front of someone you don’t know.  You let them touch you.  You let them hurt you—a little—in hopes of feeling better later.
  • What the Hell is Loss of Consortium?  When one spouse gets injured the other spouse usually has a loss of consortium claim. Some people have no idea what consortium means.  Other people think it’s just about sex.
  • Voting for Judges It’s weird that we vote for judges.  It seems like they should be appointed.  But they aren’t in Washington.  A lot of people ask me for whom they should vote.  Here are the candidates for whom I voted and why:
  • Medical Malpractice  For some reason my family prefaces just about everything with: Do you want the good news or the bad news?  I always chose the bad news. So, I’m going to start with the bad news here.
  • MTBI and Suicide Concussions are also known as minor traumatic brain injuries (MTBIs).  In a lot of cases there’s neuropsychological testing and testimony from experts on both sides about whether our client is back to baseline or still has residuals.  
  • Mediation—Top 10 List Mediation is a facilitated settlement negotiation.  Most courts require that cases be mediated before they are tried.  Mediation doesn’t happen in every case.  But it happens in most.
  • Post-Traumatic Tinnitus Tinnitus is noise or ringing in the ears. Some of our clients call it “noise trauma.”  Tinnitus isn’t a condition itself — it’s a symptom of an underlying disease or injury.
  • Sex Trafficking – Layers of Accountability A lot of people thought that prostitution was a victimless crime.  But the curtain has been pulled back.  It’s apparent now that most prostitutes are victims of sex trafficking.   And there’s a grotesque underbelly that involves children (that can hardly be characterized as prostitutes).
  • Cutting Corners and the Coronavirus We’re handling COVID-19 cases against Life Care Center and Holland America.  These cases are a natural extension of our work representing cruise line passengers and nursing home residents.  And we have defendant’s dead to rights.  
  • The Value of Human Life How much is a human life worth?  It’s a question that’s asked in every wrongful death case.  It’s also a question that’s asked when proposed regulations are evaluated.  The government weighs the cost of implementing the proposed regulation and the value of the lives it will save.

  • Bed Rail – One Size Doesn’t Fit All This is the latest in our series about nursing homes.   We’ve covered dehydration, medication errors and falls. This installment talks about the hazards posed by bed rails. 

  • What is “Opening the Policy?” Drivers purchase $X amount of insurance. Usually $X is the most that injured people can (practically) recover.  But there are some situations where the insurance company makes a mis-step and the policy is “opened.”
  • Rules of Evidence Do Not Apply I’ve spent the last 30 years weighed down by the rules of evidence.  They’ve stifled the way I think about presenting our client’s cases.
  • Enter the PM&R Doctor You get hurt in a car wreck. You see the chiropractor for three months. The manipulations provide some temporary relief but aren’t solving the problem. 
  • Client at Trial Historically we have had clients attend almost every day of trial.  Clients are curious and want to see the whole proceeding.  Over the course of the last couple of years, my thinking on client attendance has changed.
  • Abuse of Vulnerable Adults Act We’re continuing our series about nursing homes.  Over the last few weeks we’ve written about falls, medication errors and dehydration in nursing homes.
  • Dehydration in Nursing Homes We’re continuing our series of newsletters with information about nursing homes.  Our last two newsletters focused on falls and medication errors in nursing homes.
  • The Rolling Stones It’s not written anywhere.  But trade groups (AAJ, WSAJ, etc.) try to make everyone believe that trial work is the highest calling for any personal injury attorney.
  • Medication Errors We’re continuing our series of newsletters with information about nursing homes.  Last week we wrote about falls in nursing homes and explained why over 90 percent of falls at nursing homes should never happen.
  • Make Friends with the Problems We spend a lot of time learning our client’s stories.  We do that so we can figure out what parts of the case to highlight.
  • Mistakes and Checklists I’ve been riding my bike to work just about every day the last couple of months.  (Yes, I consider helping injured people an “essential” service.) I have a pretty specific routine.  It includes the order I put on my cycling clothes, getting my bike ready, etc.
  • Nursing Homes and COVID-19 Residents in nursing homes are at a high risk of being affected by COVID-19.  COVID-19 is going to consume a huge amount of resources within nursing homes.
  • Money It’s on everyone’s mind.  But a lot of people are shy about discussing it.  Not us.  This newsletter is all about money.
  • Maybe I’ll do it myself I received a call last week.  It was from a guy I knew pretty well.  He and I had talked five or six times over the past three years about a variety of things related to the motorcycle community.  But he never brought up a wreck.
  • The Black Swan We hear a lot about the “Black Swan” in the context of the stock market.The Black Swan metaphor refers to an event that comes as a surprise and has a major impact.
  • UIM Coverage and Why It’s Important We received a call this week.  A woman was on the phone.  Her husband had been involved in a bad wreck.  The at-fault driver had a $50,000 policy.  She and her husband had a $100,000 policy on the motorcycle.
  • Trial Attorneys A lot of personal injury attorneys call themselves “trial attorneys”.  But not very many of them try cases.  Why?  They’re scared or they have financial problems and have to settle their cases.  Not us.