By Eric Fong – TLC ’01 Grad.
Yes, it is true, Nick (Nicholas Rowley – TLC ’04 Grad) just got an $800,000 verdict on a soft tissue case. It may be over $1,000,000 when it is all said and done, as CA has a deal where if you set the case up procedurally, you are entitled to prejudgment interest and costs for the trial and verdict.
The first time Nick even heard of Natasha was when his old law school pal, study buddy and friend, called him up a couple weeks ago and asked him if he would try it. Nick was at the AAJ deal so the fist time he even looked at the file was the weekend before the trial started. Offer on the case was $1,400.
Basically, an elderly gentleman made a left turn in front of Natasha; a 24 yo mother of two, couldnt avoid the crash and slammed into his car at 25 mph. Nick tried the case in 3 hours; his witnesses were one treating doctor, Natashas boyfriend, and Natasha. Now I am bummed that I didn’t get to see the mini opening, voir dire, the opening or Nick’s case, but I did get to see him prepare for closing, cross one of the defense experts, then rip and tear a closing argument that I will never forget.
So, let me try to break this down as best I can, as best as I understand it. Before Nick ever looked at a medical record, a deposition or a police report, Nick looked at Natasha. He went straight to her house and hung out with her. He shared who he is and he learned who she is. He let her know he was there to help, and then he did some psychodrama. He asked her to become the pain. He wondered, and asked about the 9-month delay in treatment. He learned of her financial stress. You see she lost her car, dealing with all the fall out of such an event, no way to pay for the medical treatment, she was afraid of bills stacking up. Basically her families needs trumped her own physical needs to get healthy. Had he not gone deep to learn this stuff, one of the most astonishing moments in the close never would have happened. Nick was addressing the lack/gaps in treatment, and he says, “we have all lived with the fear of bills pilling up.” Nick has his hand raised while he says this, and half the jury raises their hand with him, but Ill come back his closing.
Now I wish I could talk to you about his mini opening, VD, opening and his case, as I am supremely curious to see how he weaved all these together with what I saw, but alas I cannot. My darling kids and I arrived on Saturday, having no idea he was even in the middle of a trial. By then, all that was left was a defense doc and closing. Given how relaxed he was, I never could have guessed he was in the middle of trial. That day we hung out and had a blast. Joey Lowe swung by (can you imagine a city so filled with talent? Goddamn it was great to see him)! My long lost love swung by, we shared tears at our loss, and got closure at the same time. The next morning, my hero, friend and life changing influence, Joshua Karton swung by and blessed us with a leisurely Sunday morning chat. Even in laze, but not surprisingly, windows opened to views only seen when you are in his presence.
Latter that night Nick and Pat, his visual presentation guy, started to prepare the closing argument. Pat thinks in terms of presentation and is a producer of visuals. All this adds another layer of communication so that more of the jurors senses are engaged. I was excited to see these two work together, an interloper back in the shadows, watching as they produce visual aids that coincide with Nicks closing oratory. I watched as Nick went over his closing argument, then the two created visual concepts, illustrations and snapshot movie headlines of what the argument looks like. Basically, Nick would go through his closing, and together they would create the visual. Pat left and Nick continued to work. I put my girls to bed around 9:30pm. The next day, Sunday, Pat came over again and the two worked past my bed time. When I woke up at 5:30 am, Nick was showered, dressed and putting the finishing touches on what he needed done for trial.
We drove about 60 miles to the courthouse in Rancho Cucamonga, and I was amazed at how relaxed he was. I was determined that I would keep my mouth shut b/c I didnt want to be a distraction to his task at hand. I assumed he would be laser like focused on what he was about to undertake; the cross of the orthopedic doc, his closing, etc., but he was as relaxed as a child sitting on the beach with a basket full of goodies. We discussed the case but once, when I asked him what was going on in his head. He said he was nervous about crossing the doctor, as he had never met the guy.
Now Ive driven hundreds of miles with Nick so I knew what I was getting into, basically a 100+mph sprint to wherever we are going. I have come to stop fearing for my life, and being more concerned for his drivers license. From my perspective, he takes unacceptable risks, not for safety, he is a great driver, but for law enforcement contact. So once we pulled off the highway, I had to ask how he could just not give a shit, and his answer made perfect sense, something I understood, but I digress. The point is this, Nick tries cases the same way he drives, to the limits of what most people fathom and perhaps never understand; he flat out pushes the limits.
So we get to court and the defense doc takes the stand. As he testifies I find myself thinking Nick is in trouble. Now I had seen nothing of the trial up to this point, so I couldnt put his testimony into context, but the doc was slick, the doc was persuasive, and the doc was believable. He kept repeating Natasha was dealt a bad genetic hand. Some people have bad eyes, some people have bad backs, blah, blah, blah. By the time the direct was done, it was 11:15, and the doc had a surgery to perform at 1. There was great discussion about what to do, but Nick assured the judge he and the redirect would be done by noon. Now I was wondering how this would be possible, but clearly there was no wonder in Nicks mind. While doubtful, the judge said, Ill leave it to the attorneys, and Nick started his cross.
As I sat in the gallery, I was pissed off at the doc, b/c it was the same old shit we see time after time. I was angry, for the life of me I dont know how these guys can live with themselves. When I cross such a doc, I usually start off slow, and work myself up to indignation once I think the jury is with me. What surprised me was the emotion and incredulity Nick launched into from the gate, you could hear it in his voice. The first thing he did was to skewer the doc on how he has testifies for this defense lawyer, and her firm 10 times in the past year alone. He skewered the doc about how over the past 20 years he has testified, 99% of the time for the defense, and this defense lawyer.
Nick then asked him to describe Natasha, what does she look like? He couldnt answer. Nick pressed him, Is she skinny, is she over weight, do you even know? The doc said she is chubby. She is as skinny as a rail. He went on down a line of questioning that leads to only one inference; he is a hired gun. From there, Nick controlled him with anatomical facts that tell the story of how serious a soft tissue injury can be. The doc could only agree to every question Nick asked. When he tried to disagree, Nick yanked him back into line by establishing the doc was incorrect.
Next, and last of all Nick established that the defense lawyer didnt give him all the records. For whatever reason, the defense lawyer did not give the doc the first doctor visit right after the crash. In this record, there are complaints of left sided numbness. Obviously, this is a serious complaint, for which the docs whole opinion was based on a lack of such complaints. You see the MRI showed signs of degeneration at L4/5, and his whole deal is that this is natural and if she were as hurt as she says she is, you would have complaints of radiating pain or numbness.
Nick framed this as the defense lawyer playing games and not providing the experts everything they need to form an opinion. To be quite frank, the defense lawyer was in way over her head. She did not have a command of the medical records, she didnt have a command of the medicine, and she made it worse by making stuff up. She went into this trial the way most defense lawyers do, unprepared, never expecting it to get before a jury, and if it does, she will win b/c all she has to do is show up.
In any event, Nick got the doc to admit that he had no reason to think Natasha is dishonest. He didnt deny that she was hurt, only that it was preexisting, she was dealt a bad hand. But Nick got him to admit that he believed her, and if she said she was hurt, he would believe her. He got the doc to say this b/c by the end of the cross, the doc had been corrected and exposed so many times by Nick, by the end of the cross, the doc was just agreeing with whatever Nick asked. In all this time, I never saw Nick prepare for this cross, he didnt hold a piece of paper as he did it, it was all from his head. The structure and sequencing of it was perfect; short, concise and to the point, maybe all of 20 minutes.
On redirect the defense lawyers main point was that Natasha was chubby because she had just given birth. This whole chubby and being pregnant thing was an extremely offensive aspect of the defense that no doubt hurt their case. The doctor openly joked with the judge about how his wife is 115 pounds and she thinks she is chubby, but he would never say that about her. In closing, the defense argued that the back pain was from being pregnant, a fatal argument that Nick exposed on rebuttal.
So we go to lunch and Nick looks exhausted. In between entertaining my family and me, he is scurrying to get up to speed on this case, other things are going on at his office that required his attention; I know he didnt sleep a lot. We ate some food, we chatted a little, I gave him some thoughts about what I saw, and he closed his eyes for a few minutes.
When he gets up in front of the jury, the first thing he says is something like this; You know over lunch I was exhausted, I closed my eyes for a little, but Im getting my energy back just by looking at you, b/c you have the power to decide what a human life is worth. And like Bob Dylan says, you dont need a weatherman to know which way the wind blows.
He then launches into the defense doctors to expose the defense tactics. That if someone gets hurt in this community, they are paid to come into court to say that the person isnt hurt. He asked them, Did you expect the defense experts to say anything else? Do you think if someone is hurt, theyd show up and testify for the defense? You bet they will! Defense experts have this power to come into court to say someone is not hurt. Dont give them that power, dont validate that tactic, please dont give them that power. He described them and their role for the defense as damage control witnesses that are used to chisel down everything.
Nick then explained about how in the 70 and 80s, university trained experts came into court and testified that cigarettes dont cause cancer, that arsenic in water isnt bad, and he asked can you leave room for the possibility that experts are paid to say certain things? Then he compared and contrasted their testimony with the treating docs testimony.
He then throws their theme back at them saying, The bad hand Natasha was dealt was when Johnny crashed into her. The bad hand Natasha was dealt was running into this defense lawyer, and this tactic that would rather pay doctors to come into court to testify, than be responsible for what they did.
Nick then systematically went over the law. This is something that I have learned is crucial. You see in civil cases, jurors dont necessarily like the law, and if you want them to follow it, you have to make sure you educate them on it. It isnt like a criminal case where jurors love the Constitution and support those ideologies. Here you have great suspicion about a civil system gone a muck over frivolous lawsuits. Nick spent a lot of time doing this. He pointed out that the law requires them to award money for every loss, and he gave examples galore for each loss, i.e. a mother that hurts when she picks up her baby, avoids the zoo because walking causes pain etc.
He then says, The time for a discount, the time for settlement has past. The time now is 100%. If I represent someone at trial, .. all the things we needed to do for trial, to get here, the time is for 100%.
In explaining the law and no bias or prejudice or sympathy, he said things like If you say Im against big verdicts, that is prejudice.
“You cant be afraid if others say were you a part of that big verdict in Rancho Cucamonga?’ You cannot be worried about what others will think.
If there is someone back there that wants to let them off on the cheap for a few hundred thousand dollars, ask them ‘is it more probable than not, ask them who is more believable, the treating doc or the hired expert who isnt responsible to anyone?’
From here, Nick went into why he is asking for $5,000,000. He basically asked for $1,250,000 for past pain and suffering. $500k-$1,250,000 for future medical, and $2,750,000-$3750,000 for future non-economic damages. He didnt really break it down, he didnt really explain it, what he spent a lot of time on is that there a lot of ways to look at $5mil. I asked him about the brackets as opposed to a fixed number, he said it depends on the case, I’m sorry I didn’t ask for an elaboration.
He frames this as ET$V or equal trade dollar value. His explanation of this is as follows. “If I break this computer, I have to fix or replace it. The human body is the same thing, it isnt 30% of what the computer is worth, it is 100%. Think of it this way, if a man in a black limousine, wearing a black suit came up to Natasha just before this crash, and he opens suit cases full of money, and he tells Natasha, Im going to give you all this money, $5million, but I want equal trade dollar value in return, and this is what it is . As you get older you back hurts worse and worse .. all she went through fill in the blank .. will you take the money? Of course she wouldnt. So $5mil is what I think she is worth, you can give more, you can give less.
He talked about her life expectancy and went back 53 years and showed a stamp was 3 cents, gas was a quarter, Elvis was signing, the price of a car etc. He talked about how if the defense doc can make $5,000,000 in three years, which what the first doc made by testifying for the defense, then shouldnt Natasha get that for a lifetime of pain. So, he explained, in 53 years from now do you really think $5million will be a lot?
Now keep in mind, all of the above was in conjunction with a visual presentation that was impressive in its own right. Im not able to explain it, so all I can say is that it definitely is a huge part of what he did.
The defense lawyer now takes the podium and reads her closing, Im not joking. It was almost as if she took a sedative over lunch, her body language was that of a defeated person. But as she read, I thought to myself, she is actually making points. She talked of the gaps in treatment, she talked about how Natasha was pregnant and only then did she seek treatment. She talked about how this wasnt a big impact. She talked about how $5mil is outrageous. She did the math and suggested something like $20,000. She talked about how the lawyers sent Natasha for treatment. I remember thinking, this is why our job is so hard. The defense lawyer can suck, but still prey on assumptions. This is why plaintiffs lawyers are so much better, they have to be to win a case.
So she gets done and Nick gets up. Again, Nick surprised me because I would have unloaded at some point in the rebuttal, I would have blown a gasket. But Nick never did, in fact it was less anger/emotion than when he crossed the doc. Nick calmly, says, what this defense lawyer did, ever so nicely, is to call Natasha a liar. Ever so nicely the defense lawyer says all this pain, if it is there, is from being pregnant. She just made this up. There wasnt a single dr that testified to this. There isnt a shred of evidence that this is the case, so please dont validate what that defense lawyer did. He went on, what makes me sad is having to sugar coat what they are doing to Natasha. His rebuttal was very short, there was no visual component to it and the last thing he said was Please, deliver justice!
Once his last words were spoken we had to rocket out of there b/c of a teaching engagement for CAALA in downtown Los Angeles. This in and of itself was an almost surreal experience. Basically, within 30 minutes of working with these lawyers, two of them were so moved, they shed tears. He brought that room to life much the way he did the courtroom, and at the end, none of the students wanted to leave.
So what are my observations? First off, and above all else, I leave with a profound sense of appreciation for how hard Nick works, a work ethic that you rarely see. Honestly, if you want to know how he does it, he works his ass off. Now it isn’t always in the traditional mode we think off, but his mind is always churning, he is always putting the pen to the paper with thoughts, and he works his cases up like you would not believe. Everyone always wants to know how successful lawyers do it? From best I can tell, they all put in the time to prepare, contemplate and strategize. Now this is not to say that we can all do what Nick does, if we just work at it. I don’t think we all can, but I do know Nick wouldn’t be able to do what he does if he wasn’t so driven.
Nick, while only 34, he has tried over 70 cases to verdict. For those 70 cases, I bet there are some 100-200 other cases that he worked up to trial, but settled at the last minute. It is in this perpetual state of trial mode that Nick lives. This case comes off the heels of 2 other trials in just the last month or so. I’m pretty sure the total verdicts of these 3 trials exceed $9,000,000. Between now and May he is slated to try another 3 cases. So it is that he is constantly immersed in thoughts of how he can do it better. He tries some things, abandons others. He constantly evolves his approach. He continually studies other lawyers and consultants; he owns all their books and uses their wisdom unabashedly, all the while giving credit where credit is due. It is obvious his work is greatly influenced by his hero, Gerry Spence, as well as Friedman and Ball.
It is through this experience that Nick can pick up a case such as Natasha’s and try it in a moments notice. It is because he has done it so many times that he can break it down, organize it, and throw it together in a matter of hours ~ such that it is like a professionally produced presentation (actually it is, with his partner in crime Pat). If you think I’m exaggerating, you need to see how he uses technology and shows his concepts to the jury.
Nick can do this because he understands the medicine. I’ve said this before, and I’ll say it again, Nick understands the medicine as well as the experts. Nick has a scary sharp mind, and he uses it to memorize the lingo, the anatomy, the tests, the medical devices, the you name it when it comes to medicine. How is it that he knows the medicine and science behind it? He is curious, he consults with experts, and he reads, studies and memorizes the medical literature. With this knowledge, his trial ability and experience, it really isnt a fair match. Just watch him cross an expert. He leads them down the path and then lets them jump off the cliff.
Nick has always told me he likes to entertain jurors, now I know what he means. There is never a dull moment when Nick is talking to a witness or the jury. One of the great moments for me is when Nick is talking to the jury and addressing the defense argument that the lawyers are calling the shots, setting up medical appointments, yackity yack. Nick tells the jury, the only reason why Natasha has a lawyer is because they wouldnt even admit that they caused the crash. Defense objects, and right on cue Nick looks at the jury and says firmly, it is true! Keep in mind, in this case there were only 3 hours of testimony, and 3 hours of Rowley talking to the jury.
So what fuels his drive? Im not sure, but I have asked this question to three of the greatest lawyers, not just of our time, but perhaps of all time, and they all gave me a different answer as to what motivates them; one said “anger,” another said “insanity,” and another said “passion.” If I had to guess, Nick has two, if not three of these bases covered in spades.