Attorney Nicholas Cronauer used lessons from Witness Preparation, Polarizing the Case, Rules of the Road and Trial By Human for an outstanding trial outcome.
Every trial lawyer knows that our most memorable trial outcomes are not the ones with the highest verdicts, but the ones that overcome the steepest odds. These are often cases that begin with zero-dollar offers, or cases with injuries that are temporary (or difficult to prove). They present challenges that even seasoned attorneys may find intimidating.
Trial Guides wishes to congratulate Nicholas Cronauer of Cronauer Law on a phenomenal recent verdict on just such a case in which he drew heavily from Jesse Wilson’s Witness Preparation. “I have worked with Jesse [Wilson] before and am working with him now. I applied his method in a case without a catastrophic injury,” he said. He also used concepts from Polarizing the Case, Rules of the Road and Trial By Human.
Witness Preparation is now available in print and ebook.
On December 5, 2015, Joseph Chavez, a retired detective-turned police officer, was tased as part of a routine training procedure. Because his trainer did not follow protocol, Joe fell on his shoulder and suffered a massive rotator cuff tear. He underwent open surgery and arthroscopy to repair the shoulder, and then began a rigorous regimen of physical therapy through January 2017, when his range of motion was only a few degrees shy of full range of motion.
While Joe worked hard to get back to work, he was never put back on the roster full-time. He was asked to work Halloween of 2017 because they needed officers, but was otherwise written off. Eventually due to budget issues, he was released from the force. In February 2018, Joe underwent an unrelated second knee surgery: another confounding factor in asking for damages for the plaintiff.
An important component of this case involved misinformation about the optional nature of the taser procedure. The training procedure did not actually require Joe to be tased, but Joe said he believed that it was mandatory. He was in his mid-60s at the time of the incident, and 71 at the time of the trial.
Conflicting Case Strategies
This began as a no-offer case. There were numerous confounding factors to the plaintiff’s argument; not only did the client have pre-existing injuries, and not only did he return to a nearly full range of motion, but he could be considered “past his prime” in his career. Moreover, this case was brought in a rural county with historically low verdicts. The defense came prepared to deny any and all liability.
“Applying Jesse's method, I framed my case as: Joe did everything right,” explains Cronauer. “Joe did everything he was supposed to do. Joe worked his tail off to get better. I kept saying that reaching a great recovery is not a defense; that’s just the type of man Joe is.” In framing the behavior of the negligent trainer, Cronauer used techniques he learned in Rick Friedman and Pat Malone’s Rules of the Road, as well as Friedman’s Polarizing the Case.
The defense’s argument boiled down to this: Joe is fine. He’s functional, he travels, his movement is barely affected, and his knees are bad anyway. He needs to understand he's old now; what’s a few degrees of limitation? He should be retired anyway. He is no longer capable of being a cop.
The defense called five separate witnesses to the stand to testify that officers—including Joe—knew they did not have to be tased. They closed with the chief of police, testifying that they told Joe not to be tased because of his health and age. By contrast, the plaintiff’s attorney only called two damages witnesses: Joe, and his now-deceased wife (called through a deposition reading).
“We did not want to come across crying over spilled milk given the good recovery, so we owned it and made it our theme,” explains Cronauer. “It is only a few degrees of difference, but that’s because Joe worked his tail off at PT to get there, not because the injury was anything minor. His limitations were minimal because he did everything humanly possible to get back to work, all he wants to do is be a police officer. The only person who didn't do everything he could to avoid this was the defendant.”
The plaintiff’s team worked hard to paint Joe as a victor over his challenges, not as a victim of unfortunate circumstances. To do this, they called his physical therapist, who attested to Joe’s willingness to work hard, acknowledging that PT is not a pleasant experience. Here, Cronauer used an important technique outlined in Trial by Human: framing the damages as human losses.
Trial By Human is now available in print and ebook.
While Cronauer trusted Jesse Wilson’s Victim-to-Victor approach, he did find it counterintuitive at times. “It's easy to create a victor when you have the safety net of a catastrophic story underlying your case, but we did not have those facts at all,” he says. Given the client’s good recovery and advanced age, the plaintiff’s team did not have a great future damages case. “This was the first trial I was able to see the victor method unfold in front of a jury.”
“The defense claimed that this fact compromised our damages claim, as well as his ability to work as a police officer, so we had to run with it,” explains Nick. “We stopped lost wages the day before his first knee surgery. I went back and forth about whether it would be a low anchor, but went with it for trial to show he wanted to work as a victor would.”
After deliberating for 7.5 hours, the jury found for the plaintiff in the amount of $1,472,750: a record verdict for the county for this type of injury. Additional verdict details were as follows:
Reflections on an Extraordinary Verdict
Through the process of taking this case to trial, Cronauer has discovered the importance of trusting Wilson’s techniques. “Even people on my trial team were telling me that this was a bad damages case,” says Cronauer. “Even during trial, they were saying the Victim-to-Victor approach was playing into the hands of the defense. I kept telling them to trust the process, and I’m so glad I did. When you see it play out with the jury and the connection it makes with the client and jury, it can be tremendously effective.”
Read the law firm’s blog on the case here.