As America’s leading litigation publisher, we hear a lot of great trial stories. After all, we publish the best trial lawyers in the country—including more Inner Circle of Advocate members than all of the other legal publishing companies combined. But when we heard about one of Nick Rowley’s recent trials, we had a hard time believing it. Then we received the pictures.
But first, a bit of background about why we think this story helps our customers think outside the box to do a better job for their clients.
“The Golden Rule” prevents most of us from asking jurors to put themselves in our client’s shoes. So how do we get decision-makers to understand our client’s true losses? The problem may not be due to the Golden Rule’s limitations, but instead with the limitations we place on ourselves when trying cases. The better question may be: How can we, as lawyers, understand our client’s losses so well that we can provide a very real presentation of their story that ignites a juror to appropriately compensate our client for their losses?
We wanted to share a remarkable story about the methods used by Trial Guides author Nick Rowley to step into his client’s shoes in a recent trial that made national headlines. The story shows how Nick is willing to try cases in a way that, while unconventional, is key to helping jurors identify with the plaintiff without Nick ever asking it of them. We believe it is Nick’s innovative methods, as discussed in his book and videos, that have resulted in his string of stunning verdicts.
In what is almost certainly a first, Nick gave part of his closing statement in a full-sized chicken costume.
The case involved a high school student who was convinced to wear the chicken mascot suit of a rival opposing high school for a pep rally skit. When he went on the basketball court during the pep rally, two students hit him and knocked him over. Concerned for his safety, Nick’s client told a school administrator he did not want to go back on the court out of concern he could be injured.
The administrator told him to go back out or he would have to personally pay for the suit rental. When Nick’s client went back on the court with limited sight and sound while wearing the outfit, he was attacked by a swarm of students including the varsity football team, who tackled him, punched him repeatedly, body slammed him, and then piled on top of him on the hardwood floor. Nick’s client sustained a mild traumatic brain injury with associated damage to his pituitary gland resulting in hormonal changes that will result in permanent health issues, including growth hormone deficiencies. He experienced cognitive changes that resulted in falling grades, as well as anxiety, depression, and behavioral changes. Rowley told the jurors, “the boy that left that morning to go to school never came back home.”
The school denied any prior incidents like this in discovery. But through investigation, the legal team uncovered that this had not been the first attack of its kind at that high school. In 2005, a teacher from the same school had worn a costume of an opposing team’s mascot, was similarly hurt and ended up with a torn rotator cuff, five broken ribs, and back injuries. Despite this history, the school never warned Nick’s client of the danger, and badgered him into going on the court even after the initial assault. Moreover, the lawsuit alleged that the school neglected to quickly intervene after students attacked Nick’s client, leaving him to sustain more serious injuries.
The trial lawyers in this case were Nick and his close friend Joseph Low—a fellow instructor at Gerry Spence’s Trial Lawyers College. Prior to Nick and Joseph taking the case over, the best offer was a $50,000 “nuisance offer.” The trial team was brought in only two weeks before trial, by which time multiple focus groups had returned a defense verdict.
There were multiple problematic facts, multiple causation issues, and the injuries were not as well documented as they had hoped. The factual problems in the case included no loss of consciousness displayed on the video of the event, the brain injury diagnosis was delayed, a history of other concussions, issues with experts, and more. The client’s medical bills prior to trial totaled $103,000. With two weeks until trial, the file contained forty-four depositions comprising 6,600 pages—in addition to the medical records. But Nick and Joseph, who have a history of success trying traumatic brain injury cases, felt strongly about their client’s case.
The defense made no further attempts to settle the case and didn’t take Nick and Joseph’s involvement seriously. They treated the client’s injuries as a joke even though there was video demonstrating the attack. A new defense lawyer was brought in late in an attempt to stop Nick.
The plaintiff team, used to having shadow jurors in the courtroom on behalf of defendants did something that proved useful. They hired one of their focus group participants to come to trial and work as a shadow juror for the plaintiff. Joseph picked the one focus group member who was against their case from the beginning and fought them the entire way. He was unemployed, young, and skeptical. But he was also thoughtful, detailed, and helpful with his criticisms of the case. His feedback during the trial proved incredibly valuable.
Despite having just finished (and winning) another trial the week before, Nick handled voir dire. Joseph Low did the opening and first witnesses. Low’s opening was compelling and set the tone for the trial. On the first day of trial, the defense made a $1 million offer. Nick told them he wouldn’t accept less than eight figures, so the trial continued. In the liability phase of the bifurcated case, the defense made an offer for $1.25 million and then $1.5 million. Nick and Joseph declined. Nick would call the adjustor on the east coast every day and tell her that the defense was going to lose.
The defense was that the plaintiff volunteered to wear the costume, and that the client was “motivated by greed for money to tell absurd stories in an effort to justify how this went down.” Defense counsel told jurors they had been “treated to an absurd and incredible story, which has been told by [the client] and his counsel, which is not worthy of your belief.” He then blamed the plaintiff for being attacked.
Throughout the trial, Nick asked defense witnesses to put on the costume to see what it was like for his client. None of them would step into his client’s position by putting on the suit. Jurors apparently recognized the refusal of the defendants to put themselves in the shoes of the injured boy. During his closing statement, Nick decided it was time to do it himself. Twenty minutes into his closing he grabbed the suit and started to put it on. As he got in the chicken suit he told the jury what it was like, being isolated in the smelly suit that was the same one rented by the school on the day his client was attacked. Defense counsel objected that it was improper, but the judge overruled the objection on the condition that it was “done respectfully and as a rhetorical device.” Nick continued to put on the suit, and talked about the limited ability to see and hear once he was inside the suit, and the horrible smell of the costume that still had his client’s blood stains in it—creating a scene for the jury that helped them imagine what it was like to be his client at the time he was attacked. His method of conveying how vulnerable his client was helped the jurors connect with the client’s experience. Joseph said afterward, “He was able to cause the jury to reverse roles with the guy inside.“
The defense was successful in getting the judge to allow eleven names of fellow students on the verdict form for the comparative negligence decision. In his rebuttal liability closing, Nick focused on why it was the school’s fault.
In a bifurcated case, the jury first determined the school district was liable before they decided damages. The adjustor called Nick during deliberations and told him the $1.5 million offer was off the table once the jury buzzed with a verdict. Nick told her the jury would find the school 100 percent at fault, and that they would be back in one hour with that verdict. It took sixty-five minutes for the jury to find the school 100 percent liable.
The insurer offered $2.5 million and begged Nick for a counter offer. He didn’t make one, and started opening statements for the damages case. Rowley asked the jury for $45 million in the opening for damages, and put on his first damages witness—the treating psychologist. The insurer called back asking for a number below the last plaintiff offer of $8.1 million. He said no, and told her she had ten minutes to offer the policy limit of $10 million plus the $500,000 SIR. Seven minutes later, the adjustor called with an offer of $9 million and Nick said no and then hung up. The vice president of the insurer called back immediately and offered the $10.5 million. The client accepted. Rowley felt it was the right choice for his client, given threats to tie the case up in appeals for years if it wasn’t settled. He understood the client needed the money to pay for ongoing treatment costs at a brain injury facility and that he couldn’t wait for years through the appeals process.
Joseph Low notes “The Judge, at our request, kept the jury impanelled so we could thank them and tell them about the settlement and so the school’s lawyer could make the public apology. We talked with the jury for about a half an hour and had our client come up and thank them. After we were done, the jurors lined up to come talk to us and give us hugs. The foreperson against us on liability started to cry and said that she voted against us because she felt that she could not go back and face her own school and her cheerleaders whom she coached if she had sided with the student. She was clearly biased and had snuck onto the jury as a rogue. Nick told her he totally understood and that it was okay and hugged her and she cried hysterically on his shoulder. The defense lawyer asked the entire panel, after we merely thanked them, what they would have awarded our client. They all said ’more than the settlement, a lot more.’ Most actually said they would have awarded us what Nick had asked for, $45 million, or more.”
Joseph further notes “the best part about the trial, the school district agreed to give him a public apology and to pass a rule in what is the largest school district in the state and the largest campus in the district. A rule that no opposing team mascots can be used to incite the students at pep rallies. My research revealed that this is something that has hurt students and teachers all over the country. As a result, this is likely to be a new rule adopted by learning institutions throughout the country.”
Despite the “motivated by greed” secondary gain defense in the trial, an attorney for the school district admitted afterward that this incident should have never happened and that the entire school district is sorry that it did. He noted that he was certain the outcome of the case would result in a review of the district’s policies and procedures to protect students. It is only by pushing cases to trial and in effectively conveying the full scope of your client’s losses can you effect institutional change that protects people from future harm. In response Nick said, ”When a jury speaks, people listen.”
Nick has collaborated with Trial Guides to create a book and videos based on his client-centric Trial by Human trial methods that help you tell the client’s story in a compelling way. Joseph Low is also featured on the DVD set Trial By Human: Jury Selection & Opening Statements.
In addition, today we are announcing the start of Nick’s Trial By Human listserv. You must be a full time civil plaintiff or criminal defense lawyer to join. You can find the Trial by Human website and listserv signup here: www.trialbyhuman.com. The listserv features Nick Rowley teaching how to use the Trial by Human method to win your cases.