The Saga of Miller v. Cards – a Real
Trial for us in Every Sense of the Word
Trial for us in Every Sense of the Word
Based on true events, but client names and identifying facts have been changed.
Harold Miller, a healthy, normal 38 year old blue collar worker was helping his neighbor saw a large branch off a tree, when the branch fell on Harold’s head, causing a head injury, which he and his wife said made him unable to concentrate, remember, think normally, or work as a delivery driver since the injury. He and his prior attorney had parted ways for some reason, so he came to me with his case to see if I would take it. I reviewed his medical records and felt like it might be a good brain injury case. He had been diagnosed by his doctors with a brain injury that prevented him from being able to work, so he had a lot of economic losses. His wife, Penny had her own health problems and was on disability, so they had suffered when Harold became disabled as well.
I had to file suit fairly quickly because it was almost four years since his injury and the time was up. After we had presented our written settlement demand to the homeowner’s insurance, they offered us $25,000, which my co-workers and I thought was great. We felt quite proud of ourselves that we had taken a case and generated that much of an offer so quickly when prior counsel could not.
As with any case, there were some problems with all aspects of the case. I held a meeting with the Millers in which I explained all the hazards of going to trial, and how much Utah juries don’t like to award non-economic damages (for pain and suffering.) I explained how the jury might think he was just as negligent as his neighbor, for after all, if it were so obviously dangerous to saw off the branch, why was he anywhere near it himself? If it wasn’t obviously dangerous, then how should his neighbor know that it was dangerous? I explained that Harold and his wife had delayed going to the hospital right after the injury making it look like it wasn’t a serious injury. I explained how his injury looked pretty minor in the emergency room after he finally did go to the hospital. I pointed out that he didn’t seem to have any signs of having had a concussion or mild brain injury immediately after the accident, which is when he should have been the most abnormal. I explained how the defense doctor was well known as a sympathizer to brain injury victims, in fact she served on the board of directors of the Brain Injury Association of Utah with me, yet she testified that his findings on his neuropsychological testing did not look like a brain injury but looked like anxiety or like he wasn’t trying very hard. I had to admit, from the evidence, she was right.
Not only did I explain all this to the Millers, but I video taped our meeting with them. I didn’t want them claiming afterwards that I hadn’t explained things to them or had coerced them into turning down the settlement offer and going to trial. I advised them to take the settlement offer.
They wouldn’t HEAR of accepting the measly, worthless, meaningless pittance of money offered by the evil insurance company and they insisted we go to trial, so with a heavy heart, I began to prepare my witnesses and exhibits--a huge amount of work, and possibly all for nothing if we did not win. Luckily the Millers had a family friend who was a licensed family doctor. She was able to testify in favor of Harold and could review all the medical records and she did not charge us anything. The most expensive part of most trials is having to hire a doctor who charges $300 or more per hour to SLOOWWWWLLLY and thoroughly read through the client’s medical records. One or two thousand dollars later....voila, he or she is ready for trial, and I am praying for a verdict so I don’t have to pay the doctor out of my pocket, as the client certainly can’t afford to pay anything unless we win.
And now, as an aside, let me explain that all this happened shortly after I married and moved in with Ladd and we blended our family of three teenage boys. During those first months of married life, our house was in the middle of being remodeled, and I was still packing up and moving things from my old house. We were adjusting to each other and they were adjusting to my badly behaved German shepherd dog and Manx cat with bowel problems. Ladd was working most of the major shows that came through town, which put him on a work schedule opposite of mine, and he was often coming or going to work in the middle of the night--it was a zoo at our house!!!
In the middle of all that, I had to work overtime on the Miller case to assemble exhibits, locate the overhead projector, prepare witnesses, organize trial notebooks, and write my opening statement. I was not enjoying myself.
Our trial was in Orem, which added another element of annoyance to the whole experience because it was an hour drive from Salt Lake City to Orem.
In spite of his own crazy all-night work schedule, Ladd got up at 6 a.m. on the first day of trial to cook me a special breakfast of sausage and huevos rancheros--awww....what a sweetheart!!! My law clerk and faithful friend and sidekick, Melodie came by at 7 a.m. to pick me up and drive me to Orem in her ancient camry. We picked up Ron, my legal assistant, faithful friend and other sidekick, then the shuttle was off. I was writing witness questions in the car as we drove. We arrived at the court house quite early, set up our equipment, exhibits and notebooks, and I continued preparing witness questions.
Although Melodie had not yet passed the bar, she was given permission as a law student to sit with me at counsel table. Ron sat nearby to help with the overhead projector and exhibits.
At 9:00 a.m. the jury panel was brought in. I asked the judge to read from my proposed voir dire questions that I had submitted to her the week before trial. The judge informed me she never got my proposed voir dire and I was astonished, remembering quite distinctly handing it to her at the pre-trial. I gave her my file copy, leaving me without a copy to look at. We floundered along. The jury panel seemed fine– no obviously mentally ill individuals, no one breathing fire and denouncing personal injury lawyers, no one who couldn’t read or write or who looked like the missing link.
As Melodie and I attempted to focus on the jury voir dire, listening to the panel members and taking notes as fast as we could, Harold’s wife began to pepper Melodie with stupid questions: "What is that red button on the microphone? Why are the jury all women? What do I do if I have to go to the bathroom?" Melodie replied emphatically to the last question, "If you have to go to the bathroom, please leave the table!"
After two hours of voir dire questions to the jury and Melodie and I conferring on who to excuse with our 3 peremptory challenges, we finally had our jury. It was time for our lunch break and I wanted to prepare for my opening argument, but the Millers immediately began to harass us with questions about why we picked the jury we did. We managed to get rid of the Millers and went to lunch without them. I was going over my witness questions and my opening statement while Ron and Melodie began to laugh about the whole experience.
Back in court, I asked the judge if she received my jury instructions that I filed the same time as my missing voir dire. She told me that she did find my voir dire questions and she apologized for misplacing them. I was relieved that the jury wouldn’t think I was a total loser.
I delivered my opening statement and felt it went reasonably well. When I sat down, Melodie whispered to me that the Millers had been sobbing, hugging, carrying on, putting their heads down on the table, wiping each other’s eyes, holding handing, weeping, wailing and gnashing their teeth. She was completely appalled. I missed all of that drama. The Millers both hugged me and told me what a great job I did. Melodie tried to tell them that they needed to be dignified and stop being so emotional.
When opening arguments were done, it was time for my first witness--Harold’s wife, Penny. Previously, when I interviewed her, she was so convincing, but on the stand, she cried steadily, pausing to heave big dramatic sighs. She was flustered, confused, gave bizarre answers, changed her story, exaggerated, and sounded about as believable as a used car salesman, when she did not sound downright cracked. I was asking questions and checking them off my outline, knowing I had no choice but to continue because there were no other witnesses to provide the essential facts we needed for the case. The jury was rolling their eyes, falling asleep, looking embarrassed or annoyed, and I was wishing the red button Penny was so worried about earlier could be used to eject either her, or me, or both of us.
Here is an example of her obvious exaggeration: she described how her husband Harold had been hit on the head by the branch, then he came crawling up the stairs to the house– his head gushing blood like a river. He was acting abnormal-- delirious and delusional, talking about his parents as if they were deceased, which they were not. He was dazed, disoriented, and didn’t seem to know what was happening. The negligent neighbors took him into their bathroom and dumped pitchers of water over his head, while blood flowed from giant crater of a wound on his head. Penny testified that she wanted to take him to the hospital immediately, but the neighbor’s wife told her not to. Penny testified that because the neighbor’s wife was her visiting teacher and because she was a new convert to the church at the time, she felt she had to obey the commands of her visiting teacher. At that point, Penny admitted she left her bleeding, delirious husband to go to the store to pick up desert, and returned to eat dinner with the negligent neighbor and his wife. Later that evening, after having had dinner and desert with the neighbors, she did take her husband to the hospital emergency room, in spite of being commanded not to do it by her visiting teacher.
The jury would later read the hospital records which described Harold’s injury as a 3 cm. laceration--hardly the gushing, life-threatening wound described by Penny. The emergency room records also described Harold’s mental status as normal and that he was alert and oriented, casting doubt on Penny’s wild stories that her husband was dazed, delirious and talking to the spirits. You would think Penny would know not to exaggerate the size of the wound when it was so well documented, but then, I began to suspect that she herself was dazed, delirious and delusional. I didn’t think the jury would believe a single word she was saying–her testimony all sounded like such nonsense. I was fidgeting, sweating, praying, and longing for it all to end. A pager somewhere in the courtroom started beeping and Melodie whispered to me, "I was hoping that was a bomb, so it could go off and end our misery." Usually neither one of us cared for bombs, but at that moment, it would have been an improvement in our lives.
Opposing counsel, a bald-headed, earring wearing biker type started cross examining Penny, and skillfully, to our dismay, he elicited even more absurd testimony from our star witness. She sounded like a hopelessly manipulative, dishonest insane wretch. The minutes ticked painfully, painfully slowly by. Ron and Melodie and I conferred with each other during the break, " In 16 years in this business I have never seen a worse witness, " Ron helpfully said.
Harold was the next to testify and surprisingly he did reasonably well, except he sounded too smart to be brain injured. We drove home, saying sarcastic things all the way. Since Ron was the one who referred the case to us, he was especially depressed, wearing sackcloth and ashes, feeling like he had brought the plague upon our office.
The next day was our day off for the judge’s law and motion calendar. We met at the office, regrouped, and made sure all our experts were prepared to testify. In talking to our doctor witness she suggested that she testify that Penny had a histrionic personality disorder and that’s why she testified so badly. A person with that disorder would be overly emotional, and irrational--I wasn’t so sure that would help our case any--to admit that our star witness was a basket case???? Melodie, Ron and I cherished every moment in our sane, beloved office, and not out there in the war zone, having to do battle with our clients and opposing counsel.
We had hoped to have Ladd come with us to court and read the deposition of our expert neuropsychologist, Dr. Rassmussen. Dr. Rassmussen could not be at the trial so we had taken his deposition, which then had to be read to the jury. Ladd worked until 3:30 a.m. the night before, and I didn’t think there was any way in the world he would want to get up at 6:30 and come with us, so I didn’t even wake him up, but he was up and ready to go in his suit--looking very distinguished. We all piled into the trial shuttle. He insisted that he didn’t want to be left out– he wanted to be there!
Before we left, however, Melodie accidentally let my dog out of the house, and he took off running down the street. She went tearing after him, yelling loudly for him to come back, and he did, as if thinking, "Let me in! Save me from this crazy lady!"
Wednesday’s witnesses included a social worker counselor in the morning, a safety expert regarding negligence, a doctor, a neuropsychologist and an economist. Ladd looked very distinguished, and did an excellent job of reading the deposition. He said he loved watching the trial, and was so proud of me. It was fun to go to lunch together, get his impressions of the witnesses and spend some time together. What a great supportive husband he was and is!
We went home that night, exhausted, but pleased that the expert testimony was going very well. I worked on my closing argument until I fell asleep around 9 o’clock.
Thursday we were hoping to be done so the jury could deliberate. The negligent neighbor and his wife testified–seemingly very honest and likeable people. Harold kept trying to talk to me during the testimony– he kept demanding that I put him back on the stand. I was planning to do that anyway, but I was trying to focus on what was going on during the trial testimony and he kept interrupting me and distracting me, so I was very annoyed. Finally I grabbed his arm and said, "I’m putting you back on the stand! Now be quiet!" I immediately felt very embarrassed– I lost my temper with the client, all in full view of the jury. It must have looked bad that we were fighting among ourselves. I hated to think about it.
Later Melodie and Ron both told me that they were happy when I told Harold to be quiet. They were ready to stand up and cheer-- they were so sick of Penny and Harold bugging us about different things and finally I got them to shut up and leave us alone so we could try to do our job.
Penny worked herself up into a froth during the negligent neighbor’s testimony, and was even worse when the neighbor’s wife testified. During the break she said to me, "How can they lie and get away with it?" I was not at all sympathetic and said curtly, "Don’t be so naive!" That shut her up. Again, I was a little embarrassed to be losing my temper, but it worked.
We had our lunch break, during which I went over and over my closing statement. We arrived back in court, but the clients were late. The bailiff asked if we could start without them. I said, "Not a chance!" Penny walked back in--if you can call it that--she was weaving and looked like she might fall over. She looked like a drunk wino, but I imagine she was on some kind of medication for her histrionic personality disorder. She looked really scary– sort of possessed. She sat down and started whispering to me that I had to put her back on the stand. That was the last thing I would have ever done, but her nagging was doubly annoying after she had arrived late and looking so wasted. After I kept shaking my head to her requests, she turned a dramatic profile to the jury and began to cry with tears streaming down her face. She looked like some kind of cheesy drama queen. I tried to ignore her and continued reading over and silently rehearsing my closing statement. She got up (unsteadily) and went back to tell Ron she was going to fire us and ask for a new trial.
She returned to counsel table and went into a big tirade over various things, most of them the silliest, most inconsequential things you can imagine. "The Cards said we were arguing at dinner! We weren’t arguing at dinner!" she protested. I said, "Penny, what does it matter! Does it prove Harold didn’t get hurt if you were arguing at dinner?" Then she went on and on about how we should have had a change in venue, because they were too well known in Orem-- as if they were celebrities or something! Where is a muzzle when you need one for your client!
A man came into the court room and sat at the back. Harold asked Melodie, "Can you ask who that is?" Melodie said, "Well, I can, but I’m not gonna!" Harold went out on the break and followed the guy into the bathroom, insisting to know who he was. The mystery man wouldn’t tell Harold who he was, so then Harold expounded in the elevator that if it was someone from State Farm, (the homeowner’s insurance) he was going to flush their head down the toilet. Unfortunately, one of the jurors was in the elevator at the time, and Ron was totally mortified. We were thinking, "Can it get any worse?"
Penny began to threaten to punch out the Cards. Harold threatened to hit the opposing attorney with a baseball bat, and Penny looked across the table at me and said fiercely, "If we lose this...!" Her glowering look implied that she would have to kill me.
I was feeling like some kind of hunted rabbit–every time we had a break this pack of raptors would swoop down on me and try to peck at me with their irate and accusatory questions. I was trying to concentrate and do my best in a situation where I had to focus on the facts, the rules of evidence, the jury’s demeanor, and the rules of evidence while trying to tune out my client’s constant demands and criticisms. Melodie said she tried to lean forward at counsel table as much as possible to shield the jury from seeing them. She said wished she could throw a sheet over them or kick them out of the courtroom or give them both a thorazine or just knock them unconscious. What a circus!
I said my closing argument, which went reasonably well, with the jury taking notes and keeping eye contact with me. Harold was a gentleman, shaking my hand, giving me a hug and telling me I did a great job and he appreciated it. I said, "Thanks Harold, that means a lot to me–that’s important to me." Penny was glaring at us, but Harold escorted her out of the room. After she left we took the bailiff aside and expressed some concerns that she might get violent with them, or us. He called in two extra bailiffs.
We went for dinner at the restaurant next door, relieved that our work was over, but nervous about the jury verdict. Bored, and with nothing to do as the evening dragged on, I went exploring, and found that the court house furnace room was quite interesting and contained a fascinating selection of light bulbs. We drank lots of Pepsi’s and ate lots of chips from the vending machine, and kept running to and from to the bathroom in front of opposing counsel and the negligent neighbors who were looking more worried as time went on.
At seven p.m. the jury had its verdict, and we all assembled in the court room. Penny showed up looking perky and cheerful–I guess one of her more pleasant personalities had taken over. The judge read the verdict, and we were thrilled--$55,000 more than double the prior offer. We were so afraid we might lose entirely. I had so many expenses to pay for the trial, and was so happy to have all of them covered by the verdict, plus a good paycheck for the month. Penny of course was tragic, saying "You might as well take all of it– its nothing compared to the rest of our lives." Harold was saying to her, "Why don’t you divorce me and marry some other, younger guy," (He is younger than her.) He sounded remarkably un-brain injured, which is probably exactly what the jury thought. At least the Millers were pleasant, thanked us, and no violence took place. We went home, jubilant, relieved, proud, pleased and tired.
Later, we had a long, drawn out battle to get Harold to sign the insurance check. Ron and I met with the Millers at the Orem public library for several miserable hours where Penny argued with me and told Harold not to sign the check. She insulted me to the point that I got up to leave, not caring if the check was signed or not. Ron convinced me to come back, and Harold ignored his wife and said he wanted to sign the check and take the money to begin his rehabilitation. "I want to get treatment and get better," he said defiantly to his wife. We breathed a sigh of relief and walked out with a signed check. Luckily, we have never heard from them again, and to this day, we are amazed that the jury gave them anything at all!
THE END
