Defense offered $50K. 4 focus groups said “Defense Verdict”. But thru the use of story structure, Joey Low was able to unlock the key to the case and win $10.5 million in justice. Here is how he did it with only 2 weeks notice.
Joe, congratulations on this win for your client. Can you give us a little background on the case?
The class president of a high school was asked to be involved in a pep rally to get the students excited. It was the afternoon before their championship game, the coach was a couple of years new and he was getting ready to set a new record, and on top of that the coach from USC was there to see the game and interview some of the kids for scholarships. So the Activities Director was trying to make this rally a big deal. They had the idea to put my client in a goofy yellow chicken costume because the opposing team was called the Clovis Golden Hawks; so to demean and trivialize the Golden Hawks, they called their mascot a chicken. The gymnasium was full of 1400 young people losing their minds, yelling and screaming, while he is out there doing the chicken dance in the costume. Two students come rushing out of the stands and tackle him from behind. One hits him low, right around the hamstrings, and one goes high and hits him right around the shoulders as they drive him into the floor. He was like, “Wow, I knew I didn’t want to wear this chicken costume, I was afraid something like this was going to happen. I’m done!” There’s video that shows the tackle and him standing, putting the chicken head back on, and then he just walks off the floor and takes the gloves off and you can tell he’s had it. Five minutes go by and the video shows him coming back out in the chicken costume again. He had this friend on the football team who he had known forever and they had a routine with a fake tackle all worked out. So on the video, you’ll see the kid come out and try to tackle him but he really just wraps his arms around him and kind of spins around in a circle then gets up and runs back to the stands. The kid in the chicken suit, started to run towards him and the whole football team cleared the bleachers and dog piled my client. It’s not one of those friendly dog piles either. Some of these kids weigh over 300 pounds and they ran full speed and dove into the air on top of him while he lies on the hardwood floor and they are banging his face into the floor. A couple of these kids ripped the chicken head off and grabbed him and started punching him in the face and kicking him in his genitals. They tear him apart. They lose their damned minds. I’m not talking about two or three of them, I’m talking about thirty. After 45 seconds, a few people drag him out from under the bottom of the pile. He can barely walk on his own. Watching the video, I realized that there isn’t an adult anywhere during this pile-on — not one adult ever broke it up. It turns out that after he walked off the first time, he said he was done and the Activities Director told him, “No, you got to go back out there.” My client said “I ain’t doing it” and was told “You’re safe — I told the football team not to touch you.” He repeated that he wasn’t going back out there and the Activities Director told him, “If you don’t go out there, I’m going to make you pay for the rental of that costume.” His parents had just lost their home and he wasn’t about to go to them and say can I have $75 for a stupid costume. He felt humiliated so he went out there again, against his better judgement. That’s when the football team jumped him. It turns out that five years before this event, the same school put two teachers in a mustang costume, one in the front and one in the back. The football team came out on the field, saw the mascot, tackled them, and kicked the living crap out of them. They broke five of one teacher’s ribs, gave him a bulging disk in his neck that required a fusion surgery, tore his bicep from his arm that needed to be surgically reattached, caused a rotator cuff injury, and now he has a permanent lower back injury. The school didn’t do a damn thing about that one either. When I asked some of the football players if the Activities Director ever told them not to touch the chicken, they said “Hell no, no one said anything to us.”
Wow. It seems so cut and dry. What were some of the biggest challenges that you faced to win this case?
For starters, I wasn’t the first attorney on this case. The case from an out of town referring attorney who didn’t designate any experts. You need experts to be able to testify to what this kid’s damage was, which was a brain injury from him slamming his head on the ground. Part of having a brain injury is that it reduces the amount of money you can make over your lifetime, what kind of job you can have, you have to have experts tell you how that reduction works, what it looks like, you have to have experts that tell you about future healthcare needs, you have to go to a center for rehabilitation and we didn’t have anything. There were over 6600 pages of material to read. That didn’t include the medical reports and then there were 44 plus witnesses. So, right before trial, after years of other attorneys working on this case, I spent two and half weeks interviewing witnesses on a daily basis preparing them and doing my own investigation. I found a bunch more witnesses that had not been disclosed and no one knew about. By the time we were done, fellow counsel and TLC’er Nick Rowley and I were able to prove that he had objective signs of a brain injury without an expert witness. Another difficult issue was that we had three possible people who were at fault: the school district, the football players who did the jumping, and our client for going back out there. The challenge was trying to figure out a way to tell the story so that the jury would come in at 100% against the school district and nobody else. The defense of the entire case was this: three years before this incident, he got hit as a football player at a football game and had a concussion; diagnosed by a doctor in the ER and the hospital at the time he had the concussion and symptoms. Then six months before this happened, he got hit in the head with a baseball. He was a really good baseball player and he got hit in the head with a fastball. Four months after this happened; he got hit by 93 mph fastball in the head. As soon as he graduated high school he started drinking like mad and became a binge drinker so their expert is going to say you can’t show that the causation was this incident at school, it was more likely a prior existing condition from the 93 mph fastball that hit him in the head four months later and his binge drinking which definitely causes a brain injury and so since they didn’t even diagnose a brain injury in this case until three years after this injury, it’s not from the school, it’s from the baseball and the drinking. The good news is even with those facts, we presented the case so that the jury came back in an hour, which is pretty damn fast, with 100% liability against the school district and zero against our client and football players which is what we wanted.
What was it about the case that you made you take it at the last hour and that it would be worth the huge investment of time and energy that it required?
That he was out there serving his school and no one was willing to protect him. What got me the most was that it happened once before to the teachers and the school couldn’t give a dam to make a rule to stop it from happening again. That’s what got me. When you first got the case and you began interviewing witnesses, what was that discovering the story like? The best way to tell a story is to tell a story of change about what things were like beforehand. You have to become endeared and connected to that story so that you don’t want to see the loss because now you understand the significance of what was lost because it was so beautiful. That story was not in any of those 6600 pages of deposition, which I was trying to read simultaneously. I realized that I don’t have a story about what the loss was for this kid. I know what the damage was but I didn’t know what he was like beforehand. One of the defenses was going to be that my client pushed a special needs boy who was a beloved, honorary mascot of the football team. They were going to say “if you’re going to pick on our guy, especially at the pep rally, we’re going to whip your ass.” I had that kid come down to my office and during psychodrama with him. I found out that he loved my client. They met when they were third graders, the kid had a speech impediment and all the kids picked on him but my guy who was one of the most popular kids in school if not the most popular, always treated him really well and would stick up for him and include him in everything from third grade all the way through high school. It turns out the kid wasn’t special needs, he had a stutter and speech impediment but he had a 3.96 GPA. The school was mis-characterizing him as special needs to make my guy look bad. I asked him when he felt the best about my client. He told me about a time when he invited the whole football team over to this house for his birthday and only one person came. The one person that came to his party was my client. You can feel that. My clients mama had hoped that this administration would care about her boy the same way that she did because the law requires all of us to send our kids to school, we don’t get to pick our teachers and we have to trust them. If we don’t, it’s a crime. We’ll get arrested and charged with a crime if we don’t send them to school. The government has a rule, if you send us your kids, we make you this promise: we’ll keep a safe, secure, peaceful environment so your kids can learn. His mom on this particular day never got to say goodbye to her boy not realizing that she was never going to see her boy again because he came home different and he has never been the same. Even though I didn’t say anything about what had happened yet, you knew something bad was going to happen. That gave me the anticipation that I needed about what was bad and about ready to happen and you start getting angry at the adults for not stopping it when they should have. That little subtlety and that structure allowed me to make that story take on that emotional content. You’ve been with TLC a long time now — since your graduation in 1998, for years as a faculty member, and now on it’s board. How do you define success? Making a difference. Because of this case, they will be changing the rule in the largest school district in the State of California so you can no longer put a student or a teacher in an opposing team’s mascot costume during a rally. They will be changing that rule for the entire State of California and as a result this rule will now change for everybody in the country because this has been happening in a number of other cases all over the country. Because we were willing to tell this kid’s story, it has now made it so nobody else can be used by the school system as a court jester. I think success is when the needs of the many outweigh the needs of the few and that gets done. Those are the type of cases I love to work on. What’s the best advice you could give a lawyer heading into their first trial? It’s not enough to learn the facts. You have to learn what the emotional content is that made those facts. That’s where the story is. You have got to learn to tell the whole story not the story of what happened. What is most important is not the story that I tell, it’s the story that the listener tells after hearing my story. I’m telling a story that causes the listener to tell the story that I need. That’s what I’ve figured out how to do. When I finally figured that out, honestly that was only about three months ago then everything changed. I have figured out how to get the jury to tell my story without me ever having told it. What do you believe are best practices for a trial lawyer? Listening with a quiet mind so that you feel everything the person you’re listening to feels but is not saying. The Trial Lawyers College has longstanding skills training on that very practice that we use and is the cornerstone skill that we develop in every one of our lawyers. Without that there can be no trial, without that there can be no story and without that there can be no growth. I mean that’s everything right there. If that’s all they knew how to do, they are going to be one of the best trial lawyers around.
About Joseph Low: Joseph H. Low IV has dedicated his life to fighting for our rights as citizens against the oppression of insurance companies, corporations, city, state and federal governments and public organizations such as the police, sheriff and city hall. His dedication to this mission began as an U.S. Marine. Mr. Low went on to graduate with a Masters of Science degree in biophysical chemistry from one of the nation’s top universities where he conducted research in the fight against cancer. Mr. Low has received several national awards for his excellence in the courtroom including the American Board of Trial Attorneys and Order of the Barristers. In addition Mr. Low received the Lewis F. Powell, Jr. Medallion for Excellence in Trial Advocacy from the American College of Trial Lawyers. He is one of the few trial lawyers left who conducts trials in Civil, criminal, state courts, Federal courts and Military Courts.