A Trial Run

By Jerry Crimmins

”Ladies and gentlemen, we are here today because of the injury that Robert Parker inflicted on my client, Mary Wallace.”

The plaintiff’s lawyer, Carol P. Woosley, looks angry, sometimes fierce, as she delivers her brief, opening statement. She walks up and down and makes vivid gestures. Woosley (pictured above, center), of Bruce, Farrel, Dorn & Associates, doesn’t know, but the jurors are difficult. It is going to be a bad day for plaintiffs at DePaul University College of Law’s Litigation Lab.

”My client is married, a normal housewife with children who enjoys playing racquetball every week with other retired people at a park facility near her house in the Chicago suburbs. My client has been doing this for two years,” Woosley says.

With assurances of confidentiality, Woosley has taken the opportunity to present three personal injury cases to a mock jury of DePaul law students. She seeks their reactions, their opinions, their comments on the evidence, and even their suggestions.

This service costs Woosley $350 for two hours of the law students’ live time. The students also had agreed to read in advance the documentation she supplied on each case. That way, their comments would be based on evidence and legal issues far beyond what she might present in her brief, opening argument.

As part of the promise of confidentiality, the teacher, attorney Michael R. Panter, says the students must all go through conflict checks before they hear any case to try to assure that none is connected to the opposing parties or their counsel.

(For this story, the names and facts in the cases have been changed.)

”On the date in question, my client went to the park facility to play racquetball, and people paired off into teams,” Woosley continues.

”That day, my client hooked up to play as partners with Robert Parker.

”Robert was more competitive. He was there to win, and that’s what he was going to do. Mrs. Wallace and the two people on the other side were having fun.”

The law students listen with the deadpan expressions typical of jurors.

Two of the students wear baseball caps indoors. Most are dressed in pullovers, sweaters or sweatshirts.

Only one, a young woman, wears business attire and pearls.

”The ball comes back, and it’s out of my client’s range,” Woosley continues. ”Mr. Parker hits her right in her eye with his racquet. He hits her so hard she almost lost the sight of her eye.

”She has to undergo lengthy medical treatment. Her medical bills are over $30,000.

”I ask for a verdict in favor of my client and against Mr. Parker for what he did in striking my client so hard she almost lost the sight of her eye.”

The ”defense counsel” then speaks. He is really the 13th student, Fernando Gutierrez, and not yet a lawyer.

”Mrs. Wallace and Mr. Parker played together for several months,” Gutierrez tells the students. He explains that the players’ manner of dividing the court was long settled.

”Mr. Parker always wore sports goggles. The plaintiff just wore prescription glasses, no goggles,” Gutierrez adds.

”Mr. Parker made contact with her with a backhand swing while he was in his part of the court. He struck Mrs. Wallace with the side of his racquet.

”He did exhibit ordinary care. He was in his part of the court. When he began his swing, she was 8 to 10 feet away. …

”She should expect that Mr. Parker would hit the ball since she could not. She was well aware of his style of play. …

”I would hope the jury finds for the defendant, therefore, with all the facts to be considered in this case.”

When the student jurors are asked to give their opinions, one comment stands out.

”If I was on the jury,” states Cortney Closey, ”I would be pissed off I had to take a day off work to hear this case, and I vote for the defendant.”

Only two of the 12 student jurors say they would find in favor of the plaintiff, and even those two would give the defendant only 40 to 50 percent of what she sought.

Woosley doesn’t mind. She and her law firm are really insurance defense counsel. She had decided to argue the other side’s case.

Her venue, Litigation Lab, is a new course this semester at DePaul. It is the brainchild of Panter, a career Chicago plaintiff’s attorney.

One trial consultant said Panter’s course is perhaps a first for any American law school.

Panter invites trial lawyers to present their pending cases to one of his two classes of law students to help the lawyers work out whatever problem the lawyers choose.

By the time this article was reported, Panter said 20 lawyers had presented their cases to one of his Litigation Lab classes, 15 plaintiff lawyers and four defense lawyers, and one other.

The cases included medical malpractice including severe birth injuries, a railroad injury, motor vehicle accidents, tort cases involving municipalities, a product liability case, a dispute over a government contract, various damage cases involving homeowners’ insurance, and two cases in which patients were allegedly abused.

In one of those abuse cases, the patient was allegedly harmed by a residential care home, and in another, by a doctor ”who allegedly breached patient boundaries,” according to Panter.

In one instance, a lawyer brought his clients to talk to a class to seek reactions. ”It was extremely emotional,” Panter said.

In another class, the only question was whether the lawyer should accept an offer from one of the defendants or continue against two defendants. Cases involve questions of procedure, jury instructions, and substantive law.

Because the students may research the cases, ‘’students have looked up and found amazing information for the lawyers,” according to Panter. ”Really, few lawyers can compete with the students as far as finding stuff in the computer.”

On the day that a reporter attends, the law students’ comments and suggestions are a mixture of what could be expected of ordinary, student-age jurors, plus comments displaying the extra knowledge that would be expected of third-year law students.

Panter goes around the table to ask each student his or her opinion.

”Sports are inherently dangerous,” argues student Mike Silverman after hearing the racquetball case. ”It’s not apparent the defendant broke any rule of conduct. When playing sports, you have to break the rules in order to find any level of negligence. There is none here.”

”She (the plaintiff) put herself at risk for the fun of sports,” another student, Bill Rock, asserts. ”It’s not his fault he was playing to win. She didn’t wear goggles.”

Lindsey Wills, the young lady in business attire and pearls, says, ”If you play with racquets, you’ve got to expect to get hit.”

After similar remarks from the student-jurors, student Ryan Smith is called on.

”I say plaintiff this time!”

”Whoa” and ”Ohhhhh” his fellow students exclaim all together.

”Stand up,” Panter commands. ”Talk to the jury.”

Smith rises. ”I play racquetball,”he says. ”If the ball’s coming and, hey, somebody’s right here, you don’t swing.

”You owe a person the obligation not to hit somebody in the head.

”Your duty is not to hit somebody in the head.”

Attorney Woosley gets drawn into this rapid-fire conversation and says when she used to play racquetball, she used to get hit.

At this point, trial consultant Patricia McEvoy of Zagnoli, McEvoy, Foley LLC in Chicago, who often gives advice in Litigation Lab, offers two observations about a potential trial:

”People who don’t play sports are not going to understand. You guys are all talking from a very competitive point of view. There are going to be people on the jury who don’t have that experience.”

Also, McEvoy says, the lawyers need a diagram for the trial to show the players’ positions on the court, and, for the defense lawyer, to show that the plaintiff is out of the defendant’s field of vision.

To sum up, Panter asks, ”Do you give anything to the defendant?” Out of 12 jurors, only Smith and Kyle Armstrong next to him agree to give the defendant more than 1 percent of what she sought. They would give her only 40 to 50 percent.

Having none of that, student Brian Molloy, asserts, ”I would sanction the attorney who brought it (the lawsuit).”

Woosley commented later she ”found it worthwhile to get the input of other people, especially young, fresh people who have some knowledge of the law but are not yet mired in taking one side or the other.”

In Litigation Lab, she said, ”You get a fresh look at your case, and you might find a little gold nugget that you overlooked.”

An extra benefit to the lawyers who make the presentations, Woosley said, is that they get Mandatory Continuing Legal Education credit for participating.

”I would much rather obtain the (CLE) hours working on my cases,” Woosley noted, ”than attending a lecture on something I either know or have no need to know.”

A discussion of plastic Solo cups is an example of the original points of view the students might offer. This occurs when defense lawyer Woosley presents another of her personal injury cases from the plaintiff’s side.

The subject is a large, backyard party with beer in southern Wisconsin attended by 18- to 20-year olds — at least one of whom had a reputation for violence. At the party, several young men were shot and wounded.

The defendant homeowner contends that he was indoors, and he did not know the young people in the backyard, including his nephew, were drinking beer.

Gutierrez, still playing defense lawyer, argues that the event was ”not a type of circus as the plaintiff contends. It was a mere party that was turned into a scene of horror” by young men who were not invited.

”This was ‘appallingly unexpected,’ Gutierrez argues. The defendants he says were not responsible.

When asked, the students are overwhelmingly for the defense in this case, too.

But then Panter asks them to argue the opposite side, for the plaintiff.

The students instantly switch and argue against their own opinions.

”Violence is obviously forseeable,” argues student Jeff Bloom, ”when you have 18 year olds, alcohol, one with a history of violence.”

Three students argue that the red Solo cups in use at the party were the dead giveaway to the homeowner that the party goers were drinking beer.

”You can’t hide the cups,” says Phil Kunz.

”Guys might pee in the bushes, but the girls will come in the house” to urinate, points out Kyle Armstrong.

Partiers going in and out of the house carrying red Solo cups seems to mean to the students the homeowner knew the party goers were drinking beer.

”There are 20 kids, a keg of beer, a supply of Solo cups.” states Bill Rock. Add to that one young man with a ”history of violence.” ”I think that defines negligence.”

The students have argued against their real opinions only because Panter asked them to.

In reality, the only person at the table who seem to sympathize to any degree with the defendants is McEvoy, the trial consultant.

”I disagree with everybody,” McEvoy says. ”I expect the property owners to have some control over the property.”

Panter advises the defendant to give a little. ”I say admit bad judgment,” he argues. ”Demonize” the fellow with the gun. ”Pay the med pay,” he adds.

”Med pay,” he explains later, is a provision of homeowners’ insurance and automobile insurance, which will pay medical expenses incurred up to the the limit of the coverage. He says it is ”unrelated to fault.”

In its inaugural semester, DePaul has offered Litigation Lab in two sections of 12 students each. Each section is fully enrolled.

Panter said he has also added four additional, two-hour class sessions to allow more lawyers to come in and present their cases.

He recently prepared a blue and red flyer to attract more students.

”Litigation Lab announces 4 additional sessions. … Come and see what all the BUZZ is about! Meet and help great lawyers with active cases! 2Ls who do a session will get a preference in signing up for Litigation Lab next fall!”

Panter likes exclamation points. Nevertheless, it is noteworthy that 30 more students signed up to take part in those for extra sessions — for no credit (exclamation point).

The cases that remained to be heard in the spring semester, according to Panter, included one involving whether an insurance company is liable for a large loss — which Panter won’t describe further — with many millions of dollars at stake; also ”a divorce case, a probate case, a patent case, a defense auto, a med mal defense, and 4 plaintiff cases.”

Still to come also was a session with a doctor who frequently delivers medical testimony who will try to show ”proper cross and direct examination techniques” for medical testimony.

”This is going to be a real treat for these students,” according to Panter, ”because they wouldn’t normally ever get an opportunity to work so closely and so candidly with a top physician like this. He has never done anything like this with law students before.”

Attorney George T. Brugess of Hoey & Farina who appeared before one of the Litigation Lab classes this semester commented afterward:

”The litigation lab program is truly visionary. It is unlike anything we had in law school. The lab not only gives me the chance for feedback on an important case, it shows…students why lawyers practice in firms, to discuss the best way of handling a file. The dynamics of group discussion never fails to give birth to new ideas and novel ways to approach a case. The group discussion certainly did in this case.”

Woosley said, ”I absolutely recommend it. … Some of the students picked up on points that I did not think were particularly strong or meaningful and used them to weave a different take on the case than I had.”

Inevitably, the students have suggestions for improvement.

”Fewer PI (personal injury) cases. More time with the lawyers,” suggested student Ian Wolfe after the first five weeks.

”If we could get more clients in, that would be great,” said student Joni Holder.

”Great transition course from law school to real world,” stated a student in an anonymous evaluation form.

”It’s honestly the best class I have taken in law school,” said another anonmyous student in an evaluation form. ”This class is preparing the students to be lawyers, not just how to act like one or read cases.”

On the day that a reporter attends the class, Woosley argues her third case on behalf of a plaintiff who was injured while he and his neighbor were painting the house owned by the plaintiff’s neighbor.

The ladder, several years old, owned by the neighbor, broke. The plaintiff hurt his leg and had many thousands of dollars in medical bills, she said.

Both the plaintiff and the neighbor weighed more than the ladder’s advertised capacity. In fact, of course, the defendant is Woosley’s client.

Out of the 12 students on the jury, Kyle Armstrong is the only one to find for the plaintiff.

”The defendant gave the plaintiff a ladder. The ladder says 200 pounds maximum. … When he gets on the ladder, it’s not his ladder. He’s helping his neighbor out. You’ve got to see some negligence” on the part of the neighbor-defendant,” Armstrong says.

The neighbor ”knows what this (ladder) can hold. Our plaintiff doesn’t know. You have to play something.”

Other students are not impressed since the defendant also used the ladder.

Near the end of the class, Panter asks the students to offer Woosley several ‘’sayings, slogans, themes” that would apply to all three cases and that a defense lawyer such as Woosley can use.

This exercise is for the students, of course.

”No knowledge means no liability,” says Lesley Melega. ”Unintended accidents aren’t intended to create liability.”

”Accidents happen. People make mistakes,” says Joni Holder.

”Show how a verdict for the plaintiff would hurt the jury or society,” offers Cortney Closey.

Brian Molloy says, ”A finding for liability opens up every single, everyday accident for a future lawsuit.”