Trial Guides is announcing a new customer success story for one of the largest personal injury verdicts of 2023.
Trial Guides Founder Aaron DeShaw has obtained a $77.5 million verdict in a recent amputation case using multiple influences from Trial Guides. The compensatory damages verdict is the largest personal injury verdict in Oregon history, and believed to be the highest single leg amputation verdict in the United States. As with other customer success stories, we asked Aaron for some insights on how he obtained the verdict that might help other Trial Guides customers.
Plaintiff’s Attorney: Aaron DeShaw (deshawlaw.com)
Verdict Location: Multnomah County, Oregon
Type of case: Drunk driving / amputation
Jury Verdict: $77,523,748.93
DeShaw was contacted by a former client, to represent a husband and wife who sustained catastrophic injuries.
The couple drove to the Oregon Coast for a short vacation, two years after immigrating to the United States. One night, around 11:30, the couple were in a parking lot trying to get fast food, when another driver veered into their vehicle, hitting them. The couple got out of the car to exchange information, believing this was an accident; instead, the driver backed up and intentionally accelerated toward the couple standing beside their car. While the husband pushed his wife out of the way of the car, the defendant hit the husband and pinned him between the cars. The defendant then backed up again, attempting to run the husband over a second time, as the wife pulled their child out of the car and ran for the cover of trees.
The husband’s injuries were extensive. He had pelvis fracture, sacrum fracture, coccyx fracture, as well as a mangled lower leg with complex open tibia and fibula fractures. One photo admitted during trial showed a mangled right leg upon arrival to the emergency room. Despite four surgeries attempting to rescue the leg and stop an infection, he developed chronic and recurring bacterial and mold infections, he had to undergo a below knee amputation. He had to undergo several post-amputation surgeries in order to remove more muscle and bone below the knee. Despite saving his life and not needing to amputate above the knee, he continued to have ongoing infections in his residual limb. At the time of the trial he had had over seventy visits to a prosthetist: an average of about one every month since leaving the hospital. This was primarily due to ongoing low level infections and challenges fitting him properly with a prosthetic.
The wife was deeply impacted as well, having severe PTSD resulting in panic attacks that often impacted her multiple times per day, as well as Major Depressive Disorder. Over the course of weeks, months and years, she suffering from anxiety and panic attacks so severe that she could not leave the house or care for her husband or child, who was eighteen months old at the time of the incident. Over time, roadway and ambulance sounds would cause such severe episodes that the couple moved multiple times in the years after the crash.
While the husband remained strong for his wife at first despite his own devastating loss, depression began setting in over time. The husband began to struggle with the long-term impact his amputation would have on his ability to provide for his family, and he gained forty-five pounds due to not being able to exercise.
In an interview with trial consultant David Ball, DeShaw explained that due to the lessons he learned from several Trial Guides authors early in his career, he rarely has made loss of consortium claims over the course of his career, but felt compelled to do so in this case. “There was a loss of consortium play claim here, and I felt like it was well-founded,” explains DeShaw. “When a person is this profoundly injured, they can't take care of their significant other.”
Proving the Defendant’s Drunk Driving
After fleeing the scene, the defendant was found asleep on the side of the road approximately forty minutes after the assault. The police did an excellent job, taking bodycam video throughout the arrest, the ride to the police station, and throughout his time in jail. This footage proved key during the trial to demonstrate the severity of intoxication.
The defendant initially refused breath alcohol testing, urinalysis, and blood alcohol testing. Eventually through a court order, police determined that his alcohol BAC was 0.221 about five hours after the crash. “My two experts believe that he was between a BAC of 0.27, and a .30 at the time of the crash,” explains DeShaw.
One significant problem for the civil case was determining where the defendant had been served, because he mislead police and refused to provide a full account of when and where he drank to police, the criminal court and throughout the civil case. A rough timeline of events for the defendant includes four bar visits. The first served four servings of brandy; the second served him whiskey with food; at the third bar, he got four servings of brandy in under fifteen minutes; and at the fourth bar he was served around five servings of alcohol over the course of one hour. The defendant never admitted to the name of the last bar and DeShaw's team only found the bar based upon investigation and an anonymous tip (later proved through discovery.) “The defendant either intentionally hid where the other alcohol was consumed, or could not remember, but we know that there was about twelve to thirteen servings more of alcohol than we could account for in the search rings from the four bars that we sued.”
DeShaw hired two different experts on the effects of alcohol on driving and decision making. One was a Ph.D. toxicologist, widely considered an expert in alcohol metabolism, who had taught toxicology at three medical schools. The other expert was the toxicology detective that was called to the scene to investigate the case.
Twelve servings could be accounted for, but both toxicology experts believed that there were as many as thirteen more servings that defendant drank and refused to acknowledge where he obtained the alcohol. Discovery provided no additional insights. DeShaw realized he did not have good enough evidence to be able to meet Oregon’s “clear and convincing” evidentiary standard that defendant was served while visibly intoxicated at the third bar, which significantly impacted the value of the dram shop cases.
The defendant had a history of violence after drinking alcohol. He had had a prior incident of assault with a vehicle after drinking a number of years earlier in which he had been sentenced to prison, but was released prematurely. There were other instances of violence after drinking, and other behavior consistent with his actions in this case. Unfortunately, the prior instances were all fifteen years or more in the past, and the judge ruled them inadmissible. While there was an initial suspicion of a race crime, background research on the defendant by the FBI, including computer searches and social media posts, determined no basis for racial crime charges.
Due to the State of Oregon taking 70 percent of punitive damages, and all taxes falling on the clients, DeShaw did not seek punitive damages in this case, only compensatory damages for both economic and noneconomic damages. “It was a very tough decision because with admitted liability it did have some impact on what I could get admitted during the trial. So it was a tradeoff.”
Arguing Noneconomic Damages in Closing
DeShaw used a mixed method to argue noneconomic damages in his closing. In his interview with David Ball, Aaron talks about some of the better known methods of arguing noneconomic damages during closing statement. “Rick [Friedman] has this technique he uses in closing where he anchors to expensive things that aren't equal to the value of a person. I believe it is in his Polarizing the Case book. I’ve used it in a number of cases. [...] You say: ‘You can buy anything in America. There are racehorses that cost millions of dollars, paintings that are over 200 million dollars. We're asking for a lot less money for this person's loss.’”
Additionally, DeShaw discussed strategies from Nick Rowley’s “equal trade dollar value” approach outlined in his Noneconomic Damages lecture—a technique that circumvents a straight per diem argument that may be prohibited in a lot of jurisdictions. Also used was Moe Levine’s “Whole Man” theory: that if you injure one part of a human, you're injuring the whole person. This is a concept present in Gerry Spence’s teaching’s as well—what would a rare painting be worth if a section was torn out of it without the owner's permission?
Finally, DeShaw discusses the “want ad” approach as used recently by Rick Friedman, in which one describes the loss, like a job posting. The amount of the verdict must equal what you would have pay the plaintiff for this "job" before they would accept living with the loss.
“This was the easiest trial of my career, because case was indefensible,” explains DeShaw. “There was nothing that the defense was going to be able to say to make this situation better. I pled this case for around $100 million, which we mentioned in opening. Oregon requires a maximum number for damages when you file the lawsuit. I had set the noneconomic damage of $80 million for the husband, and $5 million dollars for the wife.”
The jury provided $70 million in economic and in noneconomic damages to the husband, as well as the maximum $5 million, to the wife.
Trial Guides Titles that Influenced the Verdict
Aaron DeShaw is not only a trial lawyer; he is also the owner and CEO of Trial Guides. Unsurprisingly, much of his guidance and inspiration came from Trial Guides titles. “[Running Trial Guides] has made me a much better trial lawyer,” says DeShaw. “The books and the videos help me anticipate situations that I've never seen before, but which I've read about other lawyers dealing with. It allows me to have ways to handle unanticipated defenses in trial [which is common in Oregon since we have 'trial by ambush.']”
During an extended interview with famed trial consultant David Ball, Aaron DeShaw outlines the strategies and methods used in this trial. Several mentioned titles are listed below; to hear the full story of how these titles aided in a successful trial strategy, please listen to the full interview here.
David Ball on Damages 3
“Not only have I read most or all the Trial Guides books, but I've also watched hundreds, maybe even thousands of hours of Trial Guides video,” DeShaw explains. “I’ve listened to the David Ball on Damages audiobook before most of my trials over the course of my career. There are some times [in voir dire or opening] where, if I’m rushed, I might miss one of the critical areas addressed in the book. I've had instances where I realize after the opening that I forgot to address something small, and it always comes back to haunt me in the jury verdict.”
In this trial, DeShaw used Damages 3 to help discuss the “preponderance of the evidence” issue. “It’s a critically important concept: the idea that we don't have to prove an allegation absolutely. Or that the defendant's conduct had to be intentional. I find those discussions so helpful [to jurors who have no background deciding legal cases.]”
A second part of DeShaw's trial method from Damages 3 is the issue of the defendant’s ability to pay. “This particular defendant was in jail,” explains DeShaw,” so I used some ideas from Damages 3 on ability to pay. I said, ‘It doesn't matter if Bill Gates or Elon Musk or the Exxon Corporation, is sitting in this chair, or if it's a homeless person, it doesn't change what the damages need to be. The amount of the verdict is whatever the plaintiff's loss was.” In the interview, DeShaw discusses how this concept is particularly important in rural communities, which historically have lower verdicts and how a verdict could financially impact the defendant, and not realize that there is insurance covering the loss.
The Elements of Trial by Rick Friedman & Bill Cummings
DeShaw discusses how investigation—into the bars that served defendant, plaintiff’s change in quality of life, and into the defendant’s history—played a critical role in the success of this case for the clients. DeShaw borrowed heavily from Rick Friedman and Bill Cummings’ Elements of Trial, a book that underscores the importance of investigation from the beginning of a lawyer's representation. Of greatest note, the investigation uncovered dash cam footage, surveillance video, police bodycam video, state liquor commission historical reports on the dram shop defendants, and most importantly resulted in an accurate tip about the last bar that served the defendant. The policy limit by that last bar resulted in the largest payment to the plaintiffs.
Trial By Human by Nicholas Rowley & Steven Halteman
One important preparation choice DeShaw made in this case was to spend a great deal of time with his clients during the years he represented them. He got to know them personally, saw their family interactions, and began to understand, on a human level, how the husband’s injury would forever affect their lifestyle, to say nothing of their physical and mental health. This technique comes from Nick Rowley and Steven Halteman’s Trial By Human. “I certainly took this book to heart when Nick wrote it,” says DeShaw, “and as a result I understand the importance of spending more time with clients.”
Relatedly, DeShaw avoided writing out every question he intended on asking, and did not rely on notes or a case outline during the trial. This allowed DeShaw to remain present with the jurors, the witnesses and the court proceedings in real time: an approach that allowed him to remain both adaptive to new information and hopefully more relatable to his jurors.
Recovering for Psychological Injuries by William A. Barton
Get William Barton's Recovering for Psychological Injuries.
“Bill Barton has been my mentor for most of my legal career,” explains DeShaw. He's a great lawyer. He studies the craft of advocacy, far more than anybody else that I know. Not a lot of people that are really that dedicated to perfecting every aspect of trial work.”
One of the factor that DeShaw borrowed from Bill Barton’s Recovering for Psychological Injuries was this equation:
Verdict = Evidence + Law
“I always put this up during voir dire, and I always bring it back during closing,” he says. “I simply use it as an equation. [I tell the jury] there's nothing that you can use to arrive at the verdict outside of this equation. So if you're thinking about something other than what the evidence in this case is, or other than what the jury instructions are from the judge, you can't consider that in arriving at the verdict. I think it’s something that the jury pays attention to: you can't consider bias, prejudice or sympathy when deciding the verdict.” DeShaw used this equation as the springboard for talking about the jury instructions, which then became a framework for his closing—another technique he learned from Barton and his book.
Winning the Unwinnable Case by David Ball & Gary C. Johnson
DeShaw used Gary Johnson and David Ball's Winning the Unwinnable Case video to help anchor to a high damages request. “For those of you who haven't seen it,” he says, “this is a great discussion about this huge case in a rural area of Kentucky. The case was brought to trial, in spite of focus groups and conventional wisdom suggesting that the case was unwinnable. Johnson secured more than $270 million for his client: a record verdict for the county. In fact, it is perhaps the largest verdict ever given to an individual for a company's environmental negligence.
“One of the things that spring out of watching this video was this idea that jurors [may want to actually serve as jurors] once you tell them this is going to be a very important case that could potentially be newsworthy,” explains DeShaw. “Then they want part of it."
Moe Levine on Advocacy
DeShaw followed the great Moe Levine’s standard of practice in terms of admitting his bad list. “Honestly, there was not much bad in this case, but there was some maternal depression history with the wife.” Moe Levine on Advocacy suggests that it’s best to get your bad list in front of the jury first, and to not leave it for the defendant to use it against you in their opening. “Use all of the bad stuff and frame it correctly, and you’ll be in a much better place,” explains DeShaw.
He also used the Moe Levine idea that the jury is the conscience of the community, a concept many lawyers mistakenly believe came from Don Keenan and David Ball's Reptile. Imbuing your jury with a duty to stop defendants who engage in dangerous behavior and injure people is an important touchstone in deliberating rooms, particularly with conservative jurors.
This is why David Ball on Damages discusses the importance of starting your opening statement by discussing the defendant's dangerous conduct before ever discussing the result of that conduct on the plaintiff.
Trial Tactics by Rick Friedman & Roger Dodd
“A number of attorneys and experts suggest that you need to win by the end of jury selection and opening,” says DeShaw. “In Trial Tactics, Rick Friedman and Roger Dodd make specific note of this. So, I made sure that the jurors knew who they wanted to win this trial by the end of opening statements. It was a pretty devastating opening. Needless to say, when the jury heard about [the defendant's conduct, saw the dashcam footage, the animation and the bodycam footage of the arrest] and saw the damage to the clients, they were primed to bring justice to the situation.”
DeShaw discusses that he has never considered himself a natural trial lawyer; he is grateful to have encountered so many valuable tips and insights in the Trial Guides catalog, without which this verdict would have never come to be. He remains a strong proponent of going to trial when it feels necessary.
The evidence about insurance claim practices makes the importance of going to trial very clear. “If you don't go to trial, you're never going to get a good settlement outcome for your cases,” he says. “If I settled every single case, [insurance companies] would know that I'm not a threat, and would continue making zero-dollar offers on cases worth dramatically more than that.”