Expert with no expertise

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We're not just actors. We've been cross-examined over 1,500 times in cross simulations to help train and coach some of the world's top trial attorneys.

We're not just trial consultants.

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Through live witness sparring, we'll test constructive cross techniques, share fresh insights, and explore new strategies.

And even though the testimony may be fake, the trial skills? Totally real.

So let's experiment, discover what works, and have some fun in CrossLab. This show is brought to you by Trial House Consulting and powered by Lopods. Welcome to CrossLab. I'm Steve Holman.

and I'm Olivia Espinosa.

Now, first off, we're going be honest, we are not lawyers. And even though this is a podcast for lawyers, we're actually not going to talk about the law hardly at all today.

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Nope, specifically we are going be focused on storytelling and how you make your witness and your jury feel through what is famously called constructive cross.

that we call it a yes and cross. But basically what it is is making the opposing witness a tool to tell your case narrative.

Yep, and we have designed a test case and invited two talented lawyers to spar with us as we play their witness to inspire you on your next depo or trial.

Well, let's introduce our guest trial lawyers and get started.

in

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Today we have Federico Leithrup, who is a trial lawyer licensed in both Chile, South America and California. Originally from Chile, he now runs his own plaintiffs firm in California, focusing on personal injury cases and wildfire litigation. He also hosts his own podcast, Legal Latitudes, where he has fresh and entertaining conversations on legal strategy, just like the one I know we will have today on today's episode of Cross Lab. Welcome, Federico. Thank you for joining us today.

Thank you so much. Very excited to be here with you guys.

So happy to have you here. We also have Michael Hackard. He leads Hackard Law with a simple philosophy. Stand up to bullies and fight for what's right. Taking a state trust and elder financial abuse cases on contingency across California, Mike puts his years of experience to work for clients who've been wronged. His recent book, Inheritance Heists, passes along street smart lessons from his decades.

helping families recover stolen inheritances. Welcome, Mike. So happy to have you here.

Thank you. Love to be here.

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Hey Mike, before we get started, I do want to ask you or talk to you really quick about your other book, The Wolf at the Door. And from that book, as well as the work that we've done with you, it's abundantly clear that you're very passionate about fighting against predators, especially those that prey on the vulnerable elderly. I just want to know, where did that passion come from for being in this specialty?

So, and it just goes back to: 1989

You couldn't get through on a telephone and you couldn't and if you went to the front door the caregiver showed up and wouldn't let you in and there was simply no way to see Veronica. Veronica was in the house but you couldn't see her. So there was a general frustration across the family for this and of course a lot of people look to me because I'm a lawyer but I was a lawyer that didn't know how to deal with this and back then not many did.

went on. And then sometime in: 1989

So we drive to San Francisco and it's a nice home. We show up, the caregiver comes to the door and says, she's not letting us in. And my mom was kind of a fiery Irish lady. Yeah, we're coming in. And my mom pushed through, we're in. So I go off to the garage just to see what's happening. All of Veronica's family heirlooms.

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everything, and her clothing, photographs from years and years are in garbage cans on the day she died. And the caregiver announces that the house is now hers. The house is now hers. And that initiated some estate litigation, of which I didn't know how to do, and there were others that did it.

And it was a fairly sizable estate and my mom, as I recall, was getting about a sixth of the estate. So that case went on and on and on. And by the time that it settled, it didn't really settle, by the time that the court had made final adjudications on it, my mother received a check about $5,000 about a week before she died.

So the caregiver got the house and there were a number of Catholic charities involved and my mother and I think another relative who all basically lost everything from this rot doing of a caregiver. So my own commitment coming out of that is that someday I'm going to know how to do this and of course over the years the law evolved and so we now have pretty strong pretty good laws in California over the last 10 years.

That's how I got into it. It kind of goes, I probably, many of us in our lives are this way. When we've been wronged or our family wronged and we initially can't do anything about it, I think we think in the back of our minds, I'm going to find a way to deal with this. I'm going find a way. So that's what I have. I find a way and bullies don't intimidate me. In fact, they kind of amped me up a little.

I do know this about you. Actually, having read the book, I can't recommend this enough. If just like the situation where that Mike was in, if anybody comes to you this is not your specialty and you don't know where to send them, the Wolf at the Door is such a great, simple read. And it's basically a handbook to know how to deal with these situations. It's not very long. It's a little bit over a hundred pages.

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but it's just chock full of step-by-step things to look out for, what you're looking at going forward, things that you can do. It's such an amazing resource. it's, once again, it is not hard to read. So even with a non-lawyer, because that's where I'm at, it's a quick read and it's pretty enjoyable read to go through as well. So highly recommend it.

And Federico, you actually, your career started in a different place than you are now as well. Before this, your specialization was helping victims of domestic abuse cases. What prompted that switch for you?

It was, well, I started doing that type of work just because the opportunity presented and I really enjoyed it. It was a very short period of time. doing a pilot program for the government where they were tracking how these restraining orders were working, temporary restraining orders were working with victims of domestic violence because they wanted to reduce the amounts of

murders and assassinations happening in the country because the rates were very high. So I was recently graduated law student going to different places trying to talk to the victims and see if their abuser was still in contact with them and the amount of gratitude that people showed and how fulfilling that was.

for me to deal with people, was very satisfying as a professional in my professional career. And then I started working, I landed a job in Big Low working with corporations, doing some sort of transactional work, which was very to use. And at the same time, we were not dealing with people anymore, we were dealing with corporations, which wasn't that fulfilling.

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And then I came to the US. So this all happened in Chile. And then I came to the US and I am looking for my first job. again, circumstances made me a job with a personal injury firm. And I fell in love with it because I am not doing now something that is like some sort of like philanthropic type of work or something for the government. But I'm also doing something that I can live out of and provide to my clients and not even charge them because

for people listening to this and if they don't know, personal injury lawyers, we work on a contingency, which is something that only happens, I think, in the United States because here we get attorney fees, get settlements that account not only for the economic damages but also for non-economic damages and within the settlements or verdicts, an attorney can get paid.

In other countries, that doesn't happen. If you're going to suffer an injury, maybe you're going to recover the medical expenses and that's it. So on top of that, your attorney, you end up losing more than winning. To finish with this explanation, my dad was involved in a big lawsuit with his construction company down in Chile. He won.

and ended up losing, matter that, despite the fact that he won, because over there, the redress is not as good here. So it was very fulfilling to be able to help people make a living out of it. And it's just a good karma all around. then the process of doing this cross examination, like what we're going to do today, the trial work, connecting to the jury.

that really felt appealing to me. I'm really happy on a day-to-day basis getting to justice. So in the process, I have a lot of fun. So yeah.

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One question before we get into the case and start the fun part of all that sparring and whatnot, you didn't opening up to both you and to Federico and Mike, you both deal with people that are going through trauma or have dealt with trauma by the time they get onto your doorstep and you're helping them. How do you go about serving, getting the getting what you need to get done?

but also being sensitive to the emotional issues that they might be having. How do you balance that out? Maybe I'll go to Mike first.

How do we balance that out? That is actually a discussion we have in-house regularly. Because people that have been traumatized in the way that the cases we deal with, maybe they've been a parent, has cut them off because of a caregiver or maybe another sibling, and they actually feel betrayed. There's also generally a feeling of grief because we're dealing with issues for the most part after someone has passed away.

There's also a feeling of resentment even that they've got to come and see a lawyer and they're they're skeptical of a lawyer and for us because we're a Contingency firm and one of the few actually in California just focusing on this area of a law is contingency firm Sometimes that's a relief to them but you know our contingencies are

they're substantial because I always tell the clients, know, we start with zero, we're both starting with zero. I'm going to spend a lot of time and money going after this case. so, and generally in my field for most of the cases, the fee range is going to be one third to 40%. So, and that's an emotional part because what happens when you're at the table, settling the case, and by the way, 99 % of these cases settle, that's the actual statistic.

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true statistic, 99 % settled. So you're at a table and however much money is being part of the settlement and a client can look around and say, well, you're getting more than me, you if they have, you know, three or four clients there. And I say, yeah, and remember, remember this, we both started at zero, we both, and that I mentioned this to you in reference that early on.

and I want them to always remember that. So that's the balancing and also the understanding that I would just say there are times you're not appreciated at all and that maybe at times it's like being the funeral director. I mean you don't go in, wow nice job. You're in grief, you're having other issues going on such that you're not thinking too much about complimenting.

him or her. that's not to say that I really think people are cynical, not at all. That this is a grief, this is a difficulty, it's really a financial insult to them that they're going through and that, yeah, we're kind of the necessary vehicle to go off and do as much justice as we can. So that's our balance. But honesty, that's the other thing that I always say. The truth is

shall set you free. So we tell the truth, we tell the truth all the way through.

Yes. Frederica, you've been in the trenches a little bit more recently, I'm sure, because we're all here in California and of the recent Los Angeles fires. And so I can't imagine the victims that you have been dealing with and what they've been going through.

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Yeah, it's very traumatizing and you know, there is a thin line between compassion and being empathetic with the situation that clients deal with and then translating that into your own life. I guess it's called secondary trauma or compassion fatigue, you know, when your clients losses and traumas and experiences and that affecting your own life.

So there are ways, I I feel like I'm a very empathetic person and I try to stay in the shoes of my client because otherwise I wouldn't be able to represent them the way that they deserve. I need to really be able to communicate what their losses, their experiences, their traumas are. So that's why it's hard to sometimes detach in your personal life from their traumas. And it's inevitable that sometimes you come home

and you have like a big weight on your shoulders of like, you know, the sexual abuse case that you just had to deal with or the person who lost their home and they're dealing with kids that are suffering, you know, extreme trauma. And I guess there are techniques, you know, that I know are out there that are such as, know, compartmentalize, you know, these two. And then also,

manage the client's expectations because as Mike was saying, you don't want to become like the punch bowl or the person that they are blaming for all of their misfortunes. They have expectations coming from you and you need to really manage those expectations very early. Otherwise, they start blaming you for the things that are not working, not only in the case because sometimes, know, cases will take years or, you know, more than the time that they expect them to take, but also

what's happening as a result of this case not settling or not coming to a resolution. And that's why it's very important to have a conversation. A candid conversation with your clients at the beginning setting these expectations because you want to, of course, have your clients trust you and think that you're going to do a great job. And that's one thing. But then also you want to set these expectations so that they don't hold you accountable when things are not working.

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as you maybe promised that they were going to work. You need to be very careful there and be ethical as well. You cannot promise them that you're going to win a case because nobody knows that. Even if you have won 100 % of your cases, that your clients may be the first one that you lose. And that's always a possibility that you need to disclose to your clients. So you need to be very responsible when you're dealing with these clients. And then the other thing is try to, we've been doing this for a long time.

I'm sure that that might have been longer than I've been. I'm a fairly new attorney, but we have resources that our clients don't because we've been dealing with these victims for a long time, either in accidents or wildfire litigation or whatever your specialty is. And you have resources that help your clients cope with their losses. We can connect them with the right doctor and we have contacts with the best doctors around that are going to help these clients.

There are instructors so that they don't have to pay for these doctors, emotional support, et cetera, analog, et cetera. So it's not only about you winning their case and representing them, it's also helping them to live with their life and cope with their losses as you move forward with their case, giving them all of these resources that you have access to. And that provides some momentary satisfaction to you and your client and helps you deal with the situation, like you're doing something right now.

Yeah. Ultimately, it's about justice and it's about helping make someone whole again. yeah, we're so, you guys are amazing. Your clients are lucky, very lucky to have you both.

Well, today's case is a plaintiff's personal injury case and only Federico specializes in this type of case. But that's actually by design. As we mentioned, Mike, he specializes in state and trust litigation. And that's part of why we actually we try to do every episode.

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Yeah, so we love it's about getting fresh points of view from lawyers with different specialties. And because of this out of the box approach, sometimes it can reveal new discoveries because even as actors or as writers, we can get into a box. We know our specialty so well that we forget some of either even just the basics or being creative sometimes and angles that we didn't realize that,

that we were stuck in and now we can get a little unstuck because we found it in somebody else.

So let's talk about today's test case.

Okay, so this is Grayson versus NextGen Telecommunications and Samuel Dent. Plaintiff Thomas Grayson, a 42-year-old former garbage collector, sustained significant injuries when a cable company truck driven by Samuel Dent struck him in a crosswalk. The incident left Grayson with a herniated disc requiring spinal fusion, a fractured left ankle necessitating multiple surgeries,

and ongoing pain, leaving him unable to work. While Grayson's medical assessments indicate severe limitations impacting his capacity to work, defense expert James Tuft, an occupational consultant, contends that Grayson still has employable skills.

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Well, I will be playing that part. I will be your expert witness today. James Tuft. We're going to do some sparring today. Your job is to cross examine me, obviously to challenge my conclusions or my character's conclusions and reinforce your client's claim for lost and future wages.

Yeah, just FYI, Steve had about 10 cups of coffee before he came on today, so who knows what's gonna happen? This is your witness here.

I'm afraid to cross it.

A little Chris Farley joke for some reason that came into my head. All right, so each of you all is going to get 10 minutes to cross this witness. because you can kind of start wherever you want, it's just 10 minutes of a potential longer cross that you might have had. So you can confirm before you start. can confirm any admissions or anything that you might have already covered with this witness so that you can get straight to the meat of it if you would like. It's totally up to you. Frederica, we are going to start with you.

Like I said, you're gonna get 10 minutes to cross our witness or about that. It can stop whenever you wish if it's before that. But Mike and I are gonna pop off screen and you can, whenever you are ready, the witness will be yours.

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All right. Good afternoon, Mr. Taft. My name is Federico Latrock. I represent Mr. Thomas Grayson in this case. And I'd like to ask you some questions about your vocational assessment of my client. Is that OK?

That's totally fine, absolutely.

Okay, thank you. Mr. Taft, in the past 22 years, you've testified in 118 cases as an expert.

I mean, that's not I won't fight you on that. I don't have the exact number so I can't confirm that precisely. But like I said, if that's what you have, that sounds about right to me.

Okay, but that number sounds right to you.

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Yes.

Fine. And when you testify as an expert, you get paid by the party who retains you to testify as an expert.

That's correct.

And if you testify as an expert for the defense, you get paid by the defense and vice versa.

You know, and I do want to point out that that is true, but my findings are completely separate from who's hiring me. I'm just looking at the person involved and their particular circumstances.

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And we're going to talk about the person involved and the particular circumstances and your findings. But now I just want to talk about the person who pays for your services today. So today you're testifying for the defense today, right?

I am, yes.

OK, so would you agree with me that when you're testifying as an expert for the defense, you get paid by the defense, right? OK, so of the 118 cases that you have testified based on what you produced during discovery, I understand that 107 cases you were retained to testify as an expert by the defense.

That's correct.

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I can't give you that exact number. Once again, if that's what you found, I'm not going to fight you on that.

Okay, so if that number was correct, only 11 times you were retained as an expert by an injured worker, claimants, or any plaintiff, correct?

That is correct. That that I do know is correct. And I gave the same service regardless of who it was.

So although you give the same service regardless of who retains you and pays for your services, throughout your career, 95 % of the time you have been testifying as an expert for the defense,

If that's the information you have, I'm not good with math off the top of my head, but if that's what it works out to you, that's correct.

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And usually the defense is the same as talking about the employers, companies or insurance carriers, right?

It can be.

So following that logic, 95 % of the time you have testified as an expert you've been paid for by the defense to provide an opinion.

I suppose so, yes.

So it would be fair to say that your livelihood depends largely on insurance companies and defense firms continuing to hire you,

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No, this is just something that I happened to do. It's something I fell into. But most of the work I do is counseling people that are hungry to get back to getting back to work after some setbacks, usually physical or some kind of mental setback. And I help them find those situations where they can reinvent

themselves as a working person that can feel good about being needed in the community and being a part of a basically being a productive person. So that's a large amount of what I do is that kind of counseling.

Okay, and to provide that type of counseling and to provide the assessment that you just described, you evaluate these cases or circumstances of the victims involved in these type of situations, right?

That's correct. That's correct.

And in this case, you prepared an evaluation and report.

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That is correct. for the report, checked their, and I don't know if you want me to go into this, but I checked their medical records, some of the vocational records that they have, and doing a labor market survey as well.

OK, and we're going to get into your report, but I want to first learn a little bit about you. Where did you learn to prepare a case evaluation? How did you learn to do that?

Well, you know, it's, it's something that, you know, after, after my education, I have a master's in in counseling. That is something that I fell into. And I worked for a company that specialized in this. And I worked for them for a number of years before starting my own, my own firm. But it's really by working in the field, learning how to

back in, back when I first started, we had to do everything on our own as far as the research. it wasn't as easy, but now we have tools, there's actual tools that we can use to help us find, appropriate occupations, for the people that we work with or the people that we're evaluating.

Okay. So would it be fair to say that the training that you received to prepare these evaluations and reports were acquired by these masters in counseling, work in the company that you specialized in and then working in the field?

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Yeah, most of it is from working in the field and those case by case. Every case is a learning experience on helping those people get back to being a productive person in society.

OK, and during your training, you learned that a proper case evaluation must be objective, correct? OK, and by objective, what we mean is that you are evaluating all relevant facts without favoring either side, one side or the other. Would you agree with that?

Correct.

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Absolutely.

OK, and a proper case evaluation not only needs to be objective, but also impartial.

Correct.

And by impartial, what we mean is that you don't start with a desired conclusion and then hunt for evidence to support it. OK. And proper case evaluation not only needs to be objective and impartial, but it also needs to be complete. Wouldn't you agree?

That's correct.

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Absolutely, absolutely, yes.

And by complete we mean thoroughly examining all records and opinions for every physician or every report, not just the ones that you select, right?

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I'm sorry, can you repeat that question?

So by complete, you said a proper case evaluation needs to be objective, impartial, and complete. And by complete, what we mean is that you need to thoroughly examine all records and opinions, not only the ones that you cherry pick. Right?

Absolutely, I do look anything provided to me. And you know what I have looked at. your your record or any any records that you gave and anything that was given to be by, I guess, the defense in this case, I reviewed it all.

OK, and we're going to get into your report. But I want to know, Mr. Taff, the opposite of a proper case evaluation, one that is objective, impartial, and complete, that would be a biased case evaluation. Wouldn't you agree with me?

Sure.

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Okay. And a bias evaluation is where a paid expert deliberately cherry picks information that supports their desired opinion while ignoring contradicting evidence. True?

Well, mean, it depends on the timeline of things. You know, if you're that could work in that same way. So I'm always going to work with what's the most the latest information. I'm also going to work with those who are hands on or I'm going to give a deference to those who are actually the treating physicians or those that were actually hands on treating with

that with that person. you know, we can see a lot of different things. And so it gets tough when you have multiple providers or health care providers or, or physicians, or professionals, because they're not always physicians that have contradicting findings. Well, you know, you have to you have to weigh that out. That's all part of, of the experience that I've had.

So in this experience that you had, whenever there are contradicting physicians or treating physicians, you let me know if I'm understanding this correctly. You would pick the opinion of the physician that favors your desired opinion, or you would just pick an opinion no matter if it favors your desired opinion or not. I want to understand that.

regardless of if it favors my clients opinion, my opinion is impartial. And, you know, I've lost work before and that's fine with me. If they don't want to hire me again, that's completely fine. I'm going to use the objective facts. And sometimes if there's contradictory information, I'm always going to defer to those who are the ones that are hands on with that with that person.

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So under that rule or approach, you would agree with me that cherry picking information that only supports your desired opinion while ignoring contradicting evidence would be wrong, right? OK. And you would agree that there are serious risks associated with conducting a wrong and biased evaluation, right?

correct.

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Sure, yes.

And one of those risks is that the jury could be misled about one party's true condition. And if a paid expert chooses to conduct a bias evaluation, a wrong evaluation, not only could the jury be misled about the plaintiff's condition, but they could also be misled about the severity of the plaintiff's injuries.

I suppose so.

Mr. Taff, if a paid expert conducts a biased evaluation, it could cause the jury to also undervalue the devastating harms and damages that have occurred to the plaintiff, correct?

You know, this is an area where I don't consider into my evaluations. So I'm going to give it as straight as possible. I'm sure that's a factor if someone does give a biased opinion. But as far as my approach, I'm not thinking about damages. That's just not my role.

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Okay. So, when you agree that a biased and wrong medical evaluation has some risks, and we went over some risks, and I want to understand when you evaluated Mr. Grayson, and you had to assess his employability, you had a critical choice to make, right?

For me, there's only one choice and that's the choice to evaluate all of the information that I have and make as impartial and clear an evaluation as possible.

So you agree that in choosing to conduct a proper evaluation that was impartial, objective, and complete as your professional training demands, that was one choice. But then there was another choice, Mr. That was a choice of violating your training and conduct a bias evaluation fully aware of maybe not all, but some of the harmful consequences that we just covered, right?

Well, the preface of the question, I'm having my hard time wrapping my head around that it's because that's an that's that's an opinion that one person's opinion on what that might look like is different than another person's opinion. So I'm confused by the question, I guess.

So what I mean, Mr. Taft, is in this case, did you choose to conduct a proper evaluation that was impartial, objective, and complete as your professional training demands? Or did you choose to violate your training and conduct a bias evaluation fully aware of the harmful consequences?

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I every time I approach an evaluation, it's done impartially, regardless of who has hired me. And it's with the idea of getting to the heart of the matter and really evaluating what this person is capable of. and so they can live a productive life going forward.

Oh, that is time. I had to let it go longer because you were doing so good. Mike, could pop back on the screen, too. We're going to start with you, Federico. How did that feel?

Well, I mean, it's a very slippery slope with this witness that doesn't want to give me what I expect the witness to give me. But ultimately, I prepared this cross so that I don't care what the answer is. I am basically building the narrative that here there was an option, like a choice to make. He gets paid.

And I'm building like the biases and then, you know, what are the consequences of these biases affecting and then the next chapters were addressing all of these like, you know, flaws that the report had, like the job recommendation and that this guy suggested that my client was able to stand as like a shear and I was going to cover all of those issues after. I think that, yeah.

It was, it was, it feels harder than you think it's going to be, right? Because like there are always unexpected answers and you need to like be on your feet, which is part of the role of us lawyers. But yeah, it was fun. was.

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Yeah. Yeah. And even like starting your introduction to like your tone is just like, no big deal. We're just going to have a conversation. So there's no sort of contention to begin with. It's just like, it was so easy. And it definitely felt, I felt as a listener that you were comfortable and you weren't necessarily trying to pin him down in a way that was aggressive. was just, let's let him expose what he exposes on his own. Right. Steve.

exactly. I felt like you brought me through a lot of things, especially when talked about my experience. And you know, I because you pretty much brought it out that this guy, he's got, there's no organization, there's no, like degree or certification he has. And I don't want to steal your thunder there, Mike, you might be going down that road, but

Which you can still. We'll see what Steve does.

these do it. But you basically started picking away right at the beginning and without being a confrontational about it. So I mean, talking about opportunities, you I think you could have even went further with that to really expose that but you brought it out into the open that this guy learned what he learned from just making it up basically as he goes, you know, and that's it. So that that was a really great way to set the table. And then

you know, I liked it was I had to work with there was a lot of questions I did not like and I had to work around that. So yeah, I felt like it was a very clear narrative that you were building about where this guy's allegiance is and that his words of being impartial really don't they don't really you know, they don't stand on anything. It's just him saying that so

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I thought you did a good job of exposing that.

Yeah, and I would say too, I want to talk about looping real quick because holy moly, you are a fantastic looper. And you were doing it right off the bat. That number sounds right to you as something that he said that you looped back. it's it continued on with the same services regardless. And you connected that to a fantastic fact that worked for you, which is same services regardless. And over 95 %

of the cases you've done, you've testified on behalf of the defense. So such a great thing to loop and then throw back in his face. And looping does a couple of different things for us, Steve, if you want to just talk about that real quick, what looping does to us as a witness.

Especially with an expert like when you start looping me, I noticed that like I even if I'm not fully like conscious of it, I'm noticing that you're listening to everything I'm saying, and you're going to hold me accountable for the stuff that I say. And it's a nice way that you you you make me focus on on something that I said, and then you're going to drive me further with that too. So when there's those opportunities to make me pay for what I say, and that wasn't a

on purpose rhyme. It is it is painful. It is not fun. And I get squirrely. I feel squirrely when when when that's happening to me. But the other part of that too is in the beginning, it was really like a conversational thing because I felt like it was just nice. But as it went on, I there was definitely I felt it I felt your when you grabbed on to my words and then drove me further with that. You know, it's definitely something I was I was

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completely conscious of and noticing.

Yeah. Mike, I want to pass it on to you. What did you notice? What was effective to you and what you just saw with Federico's cross?

Well, I was trying to imagine that I was a juror and Steve just kind of went on and on on. It was like, I don't know, like a milkshake, you know, and I could see, I'm not saying that very well because, and that is, that's actually a very good role and one that's common when you start to get squeezed, you know, hey, you've got a reason for everything. So.

That struck me. I think Federico is going to have a chance or opportunity in the future. I think you're going to, it will be clear if you just kind of identify one fact at a time. Because even doing like two facts, you know, it was kind of like, are you objective or are you biased? Okay. Well, that's a tough one.

You know, and but it's got a lot of language around it and it's certainly a big temptation, you know, like, are you evil or are you good? But I think you kind of developed that, you know, as you did develop the object, what's an objective case? What's a bias case? Because you did develop that. That was about the only thing that struck me is that where, you know, because I guess it's

(: 42:43

pound it into my head, try to do one factor.

In that case, what I tried to do, I'm going to tell you, maybe I didn't achieve what I wanted to do, but it was one fact per question. instead of keeping one clear fact in each question, I was repeating the prior fact into the next question so that I was building this narrative, adding just one fact per question. But it sounded like I was adding so many facts.

I was addressing so many facts in just one question. I was saying one that is proper. So it's objective, impartial, and complete. So I start with objective, then objective and impartial, then objective, impartial, and complete. That's what I tried. I don't know if it works or it doesn't. You guys are the experts that can tell me that.

I was about on when you were doing the impartial versus bias. cause I know you were setting that up and I wound up explaining myself or explaining, trying to explain, but I almost said no, just to be like, I'm going to pick the one I'm saying no to and let you figure it out. So I came this close to doing that. and I might do that to you, Mike, if that happens. just let me know. So yeah, that was, that was, that's the,

I guess that's the the the double edged sword on that is what can happen is you just get a no and you're like, well, what the hell part of the node do you mean? Because I could say no to any, you know, any any one of those facts. So yeah, that was something that came into my mind actually.

(: 44:22

That's interesting.

Well, regardless, what I was thinking is like that you were just continuing to be the guide for us defining what he needed to have done, which was to be objective, impartial, and complete, right? So in that respect, that is being repeated for me as a fact finder. And that is the picture that I now know that he needs to fit into.

Yeah, that's the trilogy that will stay in a jury's mind.

Exactly. And I, by the way, I just love whenever attorneys use the word cherry pick, because that is essentially what they do. But I just think it's also a great sort of image too that it creates in our mind as a listener.

Yeah, I mean, that's the thing we have to really Federico you did such, you know, we're picking stuff apart and we're, we're, you know, talking about the things that you were trying out and having fun with, because that's what this is all about. But there was a clear narrative there. That's the important part is you had a really clear narrative all the way through. And, you know, especially with like, you throw in chill, trilogies and stuff like those are going to stick those stick those are those stick in in

(: 45:31

And I think you guys are all right when when I have to explain a bunch of stuff because I'm feeling squirrely and I, you know, I'm not liking where this is going. That I don't think that helps the jury like me and my opinions very much. So yeah, that was it was it was a lot of fun. A lot of fun.

Yeah, and also just there, your control technique. He tried to go off on you and you're, we're going to talk about that. And then you repeated today, today, like basically what you're here to do today. So I think Steve was getting squirrely because you also kind of were putting him in his place when he didn't want to be.

Before we continue, we're gonna take a quick break and we'll be right back. Since we're taking a break, let's quickly talk about our partners at Law Pods. A lot of people think that that's the company that just produces the podcast for TLU, our trial lawyer nation, but actually what they mostly do is work with lawyers just like you to reach non-lawyers, AKA potential clients.

Yeah, podcasts like your audience get to know and trust you and Robert Ingalls and his team make podcasting easy with over.

For 100 million people expected to listen to podcasts this year, there's never been a more effective way to market your practice.

(: 46:45

To get more information, visit lawpods.com. That's L-A-W-P-O-D-S dot com. Tell them we sent you.

you

Welcome back. We have another cross-examination ready for y'all. But before we do that, we actually have a question, another follow-up question for Federico.

Yeah. So with all of the interviews you've done on Legal Latitudes, your podcast, which we have been so happy and honored to be guests on, what habits or trait do you see that is shared amongst the successful attorneys that you have interviewed when it comes to trial prep?

Well, I think they all have a big animosity against insurance companies and the bullies. think that it goes across the board. And then also, think they are all somewhat risk takers. are there because the type of work that we do, as I said at the beginning, it's on a contingency.

(: 47:47

So you need to really risk it all and you may lose and not win anything after working on a case for years. So it requires to have some risk taken there. And then the other trait that I would say that they all have is they really like what they are doing. They are all super happy doing this. And usually that's not the case when you meet any lawyer. They hate their work.

you speak out of the industry, out of our environment. I'm a lawyer and they immediately assume that you are a miserable person. Whereas I am super happy doing what I'm doing. I feel like I found my passion and I'm enjoying my day today. And so is the case with all of my guests. They really like what they're doing and passionate. And it's like they are doing this training on any sport or athletic performance. Yeah.

That would be my answer.

Yeah, they're always looking for better, right? To be better for not just themselves, but for the work that they do.

Yeah, I'm gonna throw this over to Mike. mean, you know, same question. What do you what do you think are those those attributes that make for a really passionate lawyer? Because even though you're not in plaintiffs law, I know like we've already talked about how passionate you are. And you you both have that same attitude of of taking on bullies. And that's something for me. That's why I love working with the lawyers that we do. They all have that in common that that wanting to take on that bully. But what do think is

(: 49:23

one of those attributes that makes for really successful trial attorneys.

think Federico hit it pretty good when he said they don't like insurance companies. And I have actually been a plaintiff's lawyer for a long time because I did plaintiff's pharmaceutical litigation for a long time. It's just now I switch over to plaintiffs in the state trust. And I think he hit another point that's good and that is they're risk takers because you have to be comfortable and believe in what you're doing and believe that

you know, when you're on a contingency fee, you're not bringing the money in, you know, every month or whenever it is, unless those cases are resolving. So that's pretty good. I think you have to have some self-confidence, not overconfidence, and some humility that you may not win every case.

and your adversary may be a lot stronger than you think he or she is. But I think it's somebody that you're having fun to and in a way you have to be and that you want to continue to learn because I think if you're a plaintiff's lawyer you have to continue to learn. What might have worked three or four years ago may not work.

Well, Mike, you are up next to cross Mr. Tuft. Is there anything that you want to let us know that you've already covered, any admissions or any chapters that you might have already done with him before you start?

(: 51:03

Well, actually, if you don't mind so that I'm not repeating some of what Federico did, you know, about the how much and how many cases insurance companies or 90. Maybe if I just start off with something like 90 % of your testimony and then go into something else just to make it more interesting.

Sure. Absolutely. Sounds good. Knowing that that's been that was lovely covered by Frederico. So we'll start there.

James Tuft has no qualms of accepting who his clients are. Where his bread is buttered.

you

All right, Frederica and I will jump off camera and whenever you are ready, Mike, the witness is yours.

(: 51:44

Well, good afternoon, Mr. Tuck.

Good afternoon.

So over 90 % of your testimony in court has been for employers or insurers.

Like I previously said, I don't have that specific number off the top of my head, but I would not fight with you about that. if that's the number that you have, I'm fine with that.

You're fine with that. So you're certified in Oregon, Washington, Idaho, Montana, and Utah.

(: 52:21

That's correct.

But this accident happened in California.

actually that happened in, in, grants past Oregon.

Okay. But you're not certified in California.

I am not.

(: 52:38

how you are offering opinions about the California job market.

Well, when we're talking about that job market in southern Utah, or sorry, southern Oregon, it does sneak into the northern part of California. But, you know, that's still considered one, you know, one area of a job market. So so I don't see that as that as any kind of issue.

OK, a job market is defined by local economic conditions.

Yes.

and it's defined by industry specific hiring trends.

(: 53:17

Yes.

by geographic factors that affect employment.

It could, yes.

by wage rates specific to that region.

(: 53:32

yes.

by unemployment rates in that area.

It could.

and by the skills in demand in that particular location.

(: 53:46

Yes.

And you didn't conduct any actual interviews with California employers.

No, but the resources I do use, you know, they provide a very robust amount of information regarding those markets. So even though I'm not technically certified in California, the information that I received was, I believe, thorough and accurate.

So to be thorough and accurate, you did fail to speak with local job placement specialists.

(: 54:38

Well, would take, I don't believe fail is a proper word to use because I believe that I did research properly some of those markets that intersect with that Southern Oregon region.

So you didn't consult with California Workforce Development Agency.

No.

and you didn't analyze the actual job market around grants passed for someone with Mr. Grayson's specific limitations.

Well, I did put into consideration of what he is capable of doing, and he's capable of doing quite a bit. His arms are healthy. He's able to use his arms. And even though he's mostly sedentary, he is able to walk and move around. So I did take into consideration his abilities and his limitations.

(: 55:51

And you prepared your report back in September of 2024. And that's over six months. And you haven't updated it since then.

Correct.

(: 56:00

Correct.

(: 56:04

I have not been asked to do that.

And he never physically examined Mr. Grayson.

i i have not

and you never met a good person.

I have not.

(: 56:16

you've never tested his actual capabilities.

no, but I, I am assuming that any of the records that I, I am relying on that were provided by both you and, the defense counsel were accurate. And so, unless you have knowledge of the inaccuracies of any of those, and I would go back and reevaluate.

And you never observed them trying to work.

I have not.

So your entire analysis is based upon paper review.

(: 56:55

an accurate review of his records.

And you relied primarily on Dr. Hill's medical restrictions in your report.

Well, as his as one of his primary physicians that that helped him in his recovery, I found that Dr. Hill's records were some of the most important records to consider.

So Dr. Hill specializes in ankle and foot medicine.

Correct.

(: 57:26

And his practice focuses on lower extremity injuries. And in this case, he specifically treated Mr. Grayson's ankle injury. And so his assessment naturally focuses on the limitations related to the ankle.

Correct.

(: 57:50

Well,

I, yes.

Okay. The medical records show Mr. Grayson also had a two-level spinal fusion. And Dr. Hill didn't perform that surgery. A different specialist handled that procedure.

He did.

(: 58:05

he did that.

(: 58:09

Correct.

Dr. Hill's report doesn't address specific limitations at all from the spinal fusion.

It he does not, but he also, you know, is, considering, you know, mr. Grayson's ability to, to move in and operate as well. So it's even though he was speaking specifically about his, his ankle and his foot, he, he, you know, it's, he's still able to see that mr. Grayson's, able to,

operate his arms and operate or be able to be mobile. So in some fashion.

So mobile in some fashion, but a spinal fusion affects a person's ability to sit for long periods. And it affects their ability to bend.

(: 59:03

Correct.

(: 59:07

Well, and that's why you'll see that any of the occupations that he is suitable for that in my report, he's not required to lift or to move anything of any significant weight.

Okay, does, spinal fusion does affect their ability to twist.

It could.

And these limitations aren't reflected in Dr. Hill's assessment.

No.

(: 59:41

And you did review Dr. Garcia's complete medical evaluation.

I did see his medical evaluation.

And Dr. Garcia examined all of Mr. Grayson's injuries.

As a physician hired by the plaintiffs, hired, I believe, by yourself, I did see his records or his assessment.

Okay, and that was including his two-level spinal fusion on L4 and L5 L5S1.

(: 01:00:15

Yes.

and his ankle reconstruction with multiple surgeries, his ongoing pain issues.

Yes.

Now, you know Mr. Grayson had a MRSA infection in his ankle, and that required IV antibiotics for several months.

I am aware.

(: 01:00:36

Yes, and thank goodness he's recovered from that infection.

as just last year in March of: 2024

Yes.

(: 01:00:51

That's correct.

And you're aware he needs a cane to walk.

Yes, absolutely. I have evaluated that as well.

Yeah, and then that he wears a leg brace and that he has persistent back pain from his spinal fusion.

Yes.

(: 01:01:08

Yes, I completely understand that. with his limitations, a lot of employers these days, they have programs that will accommodate for people with his limitations. And I'm not saying that, you know, Mr. Grayson would go out there and work a full 40 hour work week. You know, if he was one of my clients outside of this, I would work with him to find some kind of part time work.

But he has capabilities. He has the ability to be a productive person.

Yeah, and within all that he takes pain medication daily. And Dr. Garcia concluded that Mr. Grayson needs to recline unpredictably throughout the day.

Yes.

(: 01:01:56

That was his assessment, yes.

He must elevate his leg frequently.

That was his assessment, yes.

and must alternate between sitting and standing at will.

Once again, that was his assessment, yes.

(: 01:02:10

In other words, not when it's scheduled, but when his body requires.

I believe so.

And yet, none of your suggested jobs allow for these medical necessities.

Well, like I said, his...

he is not sedentary. He's not restricted to a wheelchair. He is still able to and with the right employer, he would be able to find those times where he would be able to still be productive and still be able to work. I believe when I was suggesting or found

(: 01:02:53

surveillance monitor at one of the local casinos. That's something where, you know, he's not front facing, but he could still do that work while while while attending to his other needs.

Well, he can attend to his other needs, but you disregarded these medical realities in your report.

No, I weighed the evaluations from those who were actually actually his physicians who worked hand in hand in his recovery above those that are in similar situations that I am in, where we're evaluating from an outsider's perspective.

Okay, so again from an outsider's perspective, you know this part that before the accident Mr. Grayson was a garbage guy and that paid about $25 per hour plus benefit. It provided health insurance for his family of five and that includes his three children.

That's correct.

(: 01:03:57

Yes.

The jobs you suggested pay minimum wage are slightly above.

Yes.

and none provided comparable benefits.

I have another word. Almost got him. All right. Welcome back. OK. Mike, we're going to start with you. How did that feel?

(: 01:04:21

It feels like I want to get them a little more.

I know. want to see both of you get them a little more, actually. I know. wish we need a three-hour podcast here. In terms of the goal that you set out to do, did you fight with? Yeah. Yeah. Yeah. I put executioners just slowly walking him to his demise. It was just like a little, just one little bit at a time and some looping too, thorough and accurate. And I just, when he said,

I was getting to my goal.

(: 01:04:55

He's mobile in some fashion. And you repeated that. just, mobile in some fashion just sounds so clinical and unempathetic and just like he's a number, you know? And repeating that kind of thing just shows how, yeah, how he's not, you know, he doesn't really care about

The moment that came out of my mouth, said, he's going to hit, he's going to hit, me back with this so bad. And sure enough, that loop came right back into my face. So that was great.

Yeah, and even just the sort of a picture that we're getting of this poor man's body, he has to recline unpredictably. And you said not when scheduled, but when his body requires. It just gives us a picture of this poor man in pain consistently all the time. Steve, how did that feel to you?

that was not fun for me at all. Other than the enjoying it while watching you do your craft. But as far as James Tuft, you made me, you made me explain a few things that I didn't really want to get into. that and talk about that slow March. It was very, very painful. That being said, what a great job you did. Like Olivia said of entering a visual picture.

for everyone to really start thinking about Mr. Grayson and his limitations and his responsibilities. When you went into those last final chapters, that was really, I could see what you were doing and that was really well done. It was really, really great to watch that.

(: 01:06:40

Yeah, I think I stopped it just in time for Steve's sake at least. The way he felt to do a little uncomfortable there. Frederica, what did you notice?

I like how he did it. I think he did great. I could see, Mike, how you were doing very short questions with very short facts and straight to the point and you were building the narrative in a very easy to follow way. You used some of the things that Steve gave you, like for example, when he said I was thorough and accurate.

And then you said you were thorough and accurate, yet you failed to speak with local specialists, you failed to do this, you failed to do that. And yeah, no, I really like it. And I think I learned a lot by just watching you do it, you know, that there is so much to obtain out of this process with simplicity. And I think you did it very, very, very well there.

Now, one of the things that I, because I'm gonna say that you did everything perfect, but I'm gonna say one thing that I noticed that you missed is when he said assuming, and you could have used that and you could have used it against him. What other things have you assumed? When he said, assume that everything in the medical records are very accurate or whatever.

that could have been used against. I don't know if you did it on purpose, Steve.

(: 01:08:15

No, it hit me. That's a strong word. And I just think at that point I didn't know where to fit it.

Yeah

I also don't know, maybe it wouldn't have worked if you had asked the question like, what else did you assume here? Because so many assumptions. I don't know.

Oh, that could have been a trilogy right there. That's it. That was a great opportunity. I do this is hard to be like, you see everything you use everything perfect. But this is the course. This is the fun part about like, this whole thing is, is seeing those opportunities. But man, you could have you assumed that, you know, all the things that I failed to do as far as like looking at the job market, you could have tied that all into there. That would have been really fun to bring that back. But yeah, what a great

What a great catch. Yeah, a good thought.

(: 01:09:06

Yeah, for sure. I think that's so effective, though, when when you talk about an expert what they did versus what they didn't do. That's really fantastic. Because then it questions like, well, what is their job? What are they supposed to be doing? Right? What are they being paid for? I want to I do think an opportunity I know we've been working on this mic, because we've been doing private sessions with you. But there was a couple times where the word but came out, where I think it could have been a really great equation to use the word and specifically, attend.

He attend to medical needs. I can't remember what the loop was, but I wrote down attend to medical needs and you didn't include those in your report. Just so that in our minds as a listener, Steve, if you want to talk about sort of what we do in our heads with an and versus a but when we hear that.

Yeah, when you when you use an and it actually is just you're simply someone who is pointing out to conflicting facts and you're inviting the your jury or your judge to compare those on their own and they then they're invited to do that equation. Whereas the but is it has a bit of an opinion to it. It has it's a bit of a qualifier. So you're inserting yourself a little bit more into it. I mean, these are nitpicky things, but

You know, I know that because we've talked about that, the difference and I just did that inadvertently and didn't even catch it myself.

It just highlights things even more, sort of the oddness of what he is saying. It highlights it even more when an and is used instead of a but. Fantastic work. Wow. Have either of you faced a witness like this before? At least someone who is like, know, I mean, obviously an expert witness is going to be kind of squirrely like this, but I would love to know if you each had to cross this witness tomorrow, what is something that you would take away from today?

(: 01:10:59

Well, I I think I would simplify my questions. I would try to do it a little bit more like Mike did it, because I could also feel that the witness was getting a little bit confused when my questions were too long. And I wasn't able to convey the point as I wanted to. So sometimes, cutting the questions and making them a little just like a couple of words.

trying to ask the same thing, that would be something that I would take with me. The end, I think that I would start using that in like on my everyday, you know, conversations so that I can get the habit of doing that. what else? Be more aware of the things that the witness is saying and the little words, the little phrases, which I try to do now. I try to use, you know, that like the looping.

it helps us to actively listen. as much as we can watch this and get things that we are going to implement, we need to keep doing this in order to make it work and be good at it. It's like a practice.

I agree with what Federico said. Somehow we do need to keep doing this because it's easy to get a little rusty. It's easy to forget some things, how to do it. But if I had to take Steve, I'd take him again tomorrow.

You're on Mike, you're on. This is so much fun. I can't tell you how much we enjoy being able to do this on a podcast, but also when we get to work with you guys in person too, it's just so much fun. It's, you know, in talking about working with passionate people that really enjoy what they do, but being able to do this, you know, these prep sessions, and, and spar and be able to, to, you know, play.

(: 01:12:39

I'd like to see that.

(: 01:13:05

basically and discover things. It's just always a blast to do. So I do want to before we wrap up Federico, where can people we talked about your podcast, where can people find you and where can they find your podcast?

Yeah, so my podcast is legal latitudes. It's in on Spotify iTunes podcast all of the podcast platforms Every month we release a new episode. My Instagram is federal year FEDE lawyer And then I have a Spanish one that is our God of Federico and then my email is Federico FEDERICO at Lathrop law firm dot com L A T H R O P law firm dot com

Great, and we will link everything to your website so people can find you directly. That's fantastic. And Mike, where can people connect with you? Find your book.

So my website is hackerdlaw.com and the website identifies a lot of different things, but among them on YouTube, we have over 800 videos that have gone up over the last several years. And I think we have over six and a half million views. Instagram, and we have over 10,000 followers too, our subscribers.

Instagram hasn't been up as long, but it's got, I think, 12,000 followers. So Instagram is hacker law. I like the website. It also references the books, which is the wolf at the door. And even though I wrote it, I like it. And it's also on Amazon. The newest book, Inheritance Heist, is on Amazon. And it's just kind of

(: 01:14:58

moving out now. anyway, it's interesting because I think it's what Federico's doing too. I mean, we're lawyers and we're contingency fee lawyers, but in our own way, we're trying to be educators. And educators from a perspective that a lot of times you can't find. So I think that's part of the joy of this, being educators.

Anyway, that's where they can find us.

We can't thank you enough for your generosity of time to be here and for preparing for today as well. And we're so glad you both enjoyed your time here. As for you, the listeners, if you're enjoying what we're doing, please follow us on YouTube or wherever you get your podcasts and make sure to follow us on social media as well. Our Instagram is at trial house with that. That's with H A U S trial house.

And you can also visit our website as well. Once again, we can't thank you all enough for being here today. Well, that's the end of today's experiment.

We hope you take the best of it to court.

(: 01:16:10

We'll see you next time.

(: 01:16:14

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