Ricardo Echeverria – Picking Jurors: Common Sense Approaches

Voice over (: 00:02

Ready to take your verdict and jury selection to the next level. Jury consultant, Harry Plotkin and trial lawyer Dan Kramer are your ticket to tipping the scales before trial begins. You're not just picking a jury, you're picking justice produced and powered by law pods.

Dan Kramer (: 00:20

Alright, here we are back with another episode of Picking Justice and I am very, very excited for this one. Harry Plotkin, how are you doing?

Harry Plotkin (: 00:30

I'm doing good. I'm excited too. Got one of our good buddies on here who was one of my first hosts back years ago when I didn't these little Covid webinars. So happy to have Ricardo here.

Dan Kramer (: 00:40

So you did something before picking Justice Harry?

Harry Plotkin (: 00:43

I did, yes. This is not my first relationship with Zoom, but yeah, I mean when the courts closed during Covid and I was bored out of my mind. I'm like, I'm not going to get in front of courtroom for months, for weeks or days or whatever it was back then. So I just did two a week and I had Ricardo on there and Ricardo, I'm sure you'll introduce him to everybody in a second, but he was actually one of the first guys he went and finished a trial during Covid that we actually ended up talking about. You remember that Ricardo?

Ricardo Echeverria (: 01:08

I remember vividly once in a lifetime experience actually

Dan Kramer (: 01:11

That was legendary. I think that reverberated throughout the legal community, probably nationwide. He was the only guy that we knew that the judge actually brought the jury back. But I want to hear a little bit about that. But before we do, let me introduce this legend we got with us today. It's a guy I've looked up to ever since I was a baby plaintiff lawyer, but we got Ricardo Cheveria, truly, truly one of the originals. A great trial lawyer with Shanar. I mean this guy's won every single award in the state. He's got $68 million verdict, 42 million 25, 17. I'm going down your list and it's like I have to scroll to get to the seven figures on your verdict. So Cala trial lawyer of the year, just really a guy that I look up to and fantastic speakers. So we got Ricardo Echeveria here who's going to tell us about how he does jury selection, what he does different, and we're really excited to learn from Ricardo. Ricardo, thanks for being here, man.

Ricardo Echeverria (: 02:05

Oh, happy to be here. Thanks Dan for the generous introduction. And Harry, always good to see you two.

Harry Plotkin (: 02:11

Yeah, it's a pleasure. One thing I wanted to talk to Ricardo, I've done some trials with Ricardo and focus groups. Remember there was one years ago where Ricardo played the defense in a trial one of his partners was doing and one of the best you were there was like that guy who was playing the defense lawyer. He almost got me. He was this guy who would've found for the plaintiff and every single case, but you almost, he was so good. I was almost going to defense this case. That's how good Ricardo is. He can,

Dan Kramer (: 02:34

Did you almost switch sides after that? Ricardo, did you ever think about joining State Farm?

Ricardo Echeverria (: 02:38

I got some nasty looks from my law partner who tried the case, but he ended up getting what, a $28 million verdict on the case on a very difficult met Mel. But I remember playing the defense on the focus group that Harry, you ran and remember that day vividly. I just wanted to get out of there as soon as I could.

Harry Plotkin (: 02:55

Yeah, but one thing that Ricardo tells me a lot, I hear from some of the really, really great trial lawyers who get it, is that your goal in jury selection, I mean other than trying to pick a good jury obviously, but is to try to leave jurors with the impression that you are a reliable guy, a credible guy. And a lot of lawyers don't think about their credibility. They're sitting there cross-examining jurors and trying to get every bad juror to admit they're off and they're not thinking about, well what's the impression of me that I'm creating during jury selection? So that's one thing we wanted to kick it to you and say, how do you kind of balance that out and still build credibility,

Ricardo Echeverria (: 03:29

Big picture. That's true. I always say there's really two things I want to accomplish at the end of the jury selection and especially after the end of jury selection and opening statement. And number one is I want those jurors to look at me as a reliable source of information. This is the person I can trust. He's not bullshitting me, he's not overselling, he's not underselling and he's honest. And number two, I don't think you're going to pick a good jury necessarily. What you want is an open-minded jury and that is a good jury. Get rid of the haters and be left with 12 people that truly, truly come in with an open mind. Because if you've got those two things, you're probably going to win the case. But in terms of establishing credibility, it's your first impression and it's like any other interaction you have with people in your first impression, are you polite? Are you nice? Are you dressed appropriately? Make sure your shoes are shined, you're respectful, and just be a normal person and don't be too lawyer-like because generally speaking, I think jurors come in, they don't really trust lawyers and it takes time to develop that trust and you want to start off on the right foot, especially with the first impression.

Dan Kramer (: 04:34

Do you have an intro that you use that you're tried and true? What do you say?

Ricardo Echeverria (: 04:38

Well, I'll say something like, folks, I know you're here because you have to be and we appreciate that. And I want to tell you right up front that you don't owe me anything. You don't owe the court anything with the exception of one thing. So only one thing that you owe all of us as part of a citizen of this great country and that is your complete honesty. That's all we can ask for because the only way this system works is we get 12 people who come in truly with an open mind. And then I'll say something too to get the skunk out on the table about biases. That's a negative connotative word. And I'll take the sting out of that and say, we're here to talk about whether people have biases. And the truth is everybody has biases. I have them, you have them, everybody does.

(: 05:24

And I'm not saying it in a negative way, it is just that some biases we have because of where we were raised or how we were raised or experiences that happened to us. For example, if you were a victim of a certain crime and you're on a trial where the exact same crime is that issue, you may not be the right juror to hear that because of an experience that you had. So all we're trying to do in this whole process is just to get those issues on the table because we want people that are the right jury for jurors for this case. And you may be that person. On the other hand, you may not be, maybe you're right for the case three doors down the hall and that's okay. There's nothing wrong with us. So we just want people to be forthcoming and try to instill an open, honest rapport from the very beginning of it no matter who they are.

Dan Kramer (: 06:12

So that's your kind of first before you ask, still your first question out there. And then hypothetically a personal injury case, where do you go to next? Typically,

Ricardo Echeverria (: 06:23

I usually on PI cases talk most about damages in particular non-economic damages. Folks, there's no secret in this case that at the end of it we're going to be asking for two types of damages. One is economic and that's arithmetic, the loss of earnings, the medical bills, whatever, everything you can add up with a calculator. But we're also asking for money for pain and suffering. Ms. Smith, what do you think about that concept? Awarding money for somebody who's been injured for pain and suffering, what do you think about that? And just kind of open-ended questions and then you go from there and if you get somebody who says something negative, I just don't think we should ever award money for non-economic damages. Thank you. It's the first thing I say, thank you for your honesty. That is exactly what I talked about at the beginning. We don't want to open honest discussion the only way this is going to work. Anybody else feel that way, even just a little bit and open it up and then kind of let it go from there. Let it be more conversational.

Dan Kramer (: 07:23

So sorry, one of the first topics. So you go to damages even what if you have a liability dispute? Are you going to talk about those issues early?

Ricardo Echeverria (: 07:31

I mean I don't necessarily go with damages first, but it's always something I do cover my general outline. I'll look at a case and say, okay, what am I most afraid of? And let's say client used methamphetamines. Client is 69 years old and I'm asking for non economics, whatever the laundry list of things are I'm worried about in the case. And many of those get flushed out with focus groups that we do with Harry and you find out the issues that potential jurors think are important, not important. And then when I take that, then I'll usually prioritize that. So I don't necessarily start off with damages, but I've had cases where I had a really strong liability case and I don't even talk about liability at all because I'm going to win liability. I don't want to poison the well by getting jurors saying, oh I figure you got to win. So I just stay away from it and only talk about damages. And if you of course have a liability case, you got to get into those issues too, whatever they are.

Harry Plotkin (: 08:26

Well, if you're trying your case in the right place, you know that you don't have to worry about methamphetamine use. I mean a lot of jurors I've seen in focus groups will say, Hey methamphetamines, you're more focused. I've actually heard jurors say that in focus groups. No, you're hyper attuned. But one thing I wanted to say is, one thing I'm getting from you Ricardo, and I've seen you in the courtroom and been with you before, is the transparency with the jurors. You're explaining to them, hey, this is exactly, you're not trying to trick. You're saying this is what bias is and this is why it's fair for both sides and this is what kind of damages we're seeking. And you're just putting it all out there and being transparent. What are some things that you've seen other lawyers do or maybe it's something that you did earlier in your career that you learned from that where you step in it when it comes to building credibility with, I have a long list, but I want to hear what you've seen.

Ricardo Echeverria (: 09:11

Yeah, I think the biggest thing that I've learned to overcome and not do and that I do see lawyers make a mistake on, it's almost like you talked about earlier, cross-examining a juror, trying to cram down their throat a thought or a view that they should have a, you're not going to convince them, you're only going to off-put them and you're going to piss them off. So if somebody comes out and says something negative, don't try to convince 'em otherwise I would just embrace it and I would even try to build them up on it Said, it sounds like you feel very strongly about that and yes I do it. Is there anything that I could say that would change your mind or is this something you've had for a long time as opposed to trying to convince them that, well don't you think in the right case damages for non-economic should be awarded. If they're not with you, you're not going to convince 'em in a one hour or 45 minute voir dire, you're not going to do it. It ain't going to happen. So just go with it and try to get rid of 'em for cause

Harry Plotkin (: 10:04

I was going to say, and not judging them, I mean that's where sometimes I'll see jurors go wrong and when you cross examine them or you make it sound like a bad answer is a bad answer, any judgment from the lawyers, you're just, that person's going to be put off but everybody's going to be put off if you're like, and I've heard lawyers say, do you have a problem with non-economic damages or do you have a problem with this? And they almost say it sometimes in an almost hostile way without meaning to,

Ricardo Echeverria (: 10:29

You're right. Using the right terms is right too. It says, what are your thoughts about open-ended question? What do you think about that? And again, no right or wrong answers, I just want to know honestly how you feel about it and trying to ask those open-ended questions that will get the words from the juror. What really matters is if they come back and see I got a problem with it, they said it and you just asked them an open-ended question. So I'm a firm believer in open-ended questions in vo dire.

Dan Kramer (: 10:56

Well, I do want to hear, how do you ask the meth question?

Ricardo Echeverria (: 10:59

Well, first of all, it depends on how it's coming in at trial. For example, I had a case where there were two meth issues. One was there was a video of the auto pedestrian accident and the methamphetamine levels of the decedent who got run over by this truck were through the roof. But because of the video and we could see that she did nothing wrong. I was able to keep that out. Okay, the meth report at the time of death. On the other hand, there was another enmity that I tried to keep out general meth use and the judge said, no, that's coming in. Because to the extent that relates to the relationship between the children and the mother, it comes into place. So general meth use will come in. So I knew going in that we weren't going to have, because you can't put a black hat on a report.

(: 11:48

It is what it is, but general meth use was going to come in. And how of you ladies and gentlemen had experience with knowing somebody, a loved one or a friend who issues with methamphetamine use and then they raised their hand or whatever and they say, well, can you tell me a little bit about that? I don't mean to pry but as much as you can. And if you are uncomfortable, we can do it in the privacy of the judge's chamber, but get them to talk about it and then embrace it and depends on what the answer is. It could be a mother who says, my son did methamphetamines and it was a difficult thing for me to go through. Did you still have a good relationship with your son during that time? Yes I did. Did you love him and blah blah blah. Were you able to help them? And I'm looking for people who have had experience who are going to be like, okay, you had math, so I I've seen it.

Dan Kramer (: 12:38

You're still a human being at the end of the day. It doesn't make you less than

Ricardo Echeverria (: 12:42

A human being. But that's kind of how I would approach it. And one thing about that too is I always try to give 'em the option. If you're uncomfortable speaking about it in open court, don't worry, we can do it. Probability the judge will accommodate that when you're dealing. Because somebody may want to say, I used meth and they don't want to talk about it.

Dan Kramer (: 12:59

So that's obviously with those questions, it sounds like you're getting finding out who the jurors are pretty good, but how are you framing it or asking about to try to find out the ones who are just going to be hardcore or really anti just can't award money to someone who's done meth or

Ricardo Echeverria (: 13:14

That'll depend on the answers because I'm asking open-ended questions about general meth use and if somebody brings that up, they start going in a negative direction. It's hard to make a cookie cutter answer to that. It depends on the answer. And if they start going in a negative direction, then I'll ask them, I said, would you have any issues sitting on a jury to award noneconomic damages to somebody who used meth? Would that be a problem for you? And so let me know. So it just depends on the answer.

Harry Plotkin (: 13:42

What I'm dealing with those in a case, and I've had, I'm just thinking of in the last six months, ones with wrongful death cases with drug use, alcoholism, problems with past criminal history. And I always frame it for the jurors. It sounds like that's what you were doing too, Ricardo, is it's not about whether this is a good person or it's how much their family loved them. And so I always start out by asking, what are your thoughts on whether somebody who has a drug addiction or has an alcohol addiction or who's had issues like one father spent some time in prison, whether those things make their family members love them any differently. And you get got a lot of good answers. But I'm looking for, has anyone ever had an experience where somebody's family members drug use or alcoholism or whatever really was harmful to the relationship? And you'll hear some of those and those are the people. You don't want someone saying, oh, my father was an alcoholic and we had a horrible relationship. But just because someone's on,

Dan Kramer (: 14:33

Yeah, on a wrongful death, that makes sense. But it's really the tough was when your client maybe as a cervical lumbar fusion, there was testing before the surgery that done meth. There's a history of meth use, the judge is going to let that in. How do you find a jury that's okay, awarding many millions of dollars to someone who he probably still uses meth. That's like

Harry Plotkin (: 14:53

Where the plaintiff has the issue, right?

Dan Kramer (: 14:54

The plaintiff. Yeah, the plaintiff specifically. How are you asking those kinds of questions, Ricardo? To really find out who your bad jurors are.

Ricardo Echeverria (: 15:01

It depends on the kind of answer that you get. If you get somebody who outright says, I'm sorry, I got a problem with your client using meth. And then do you think you would have complete impartiality awarding money to somebody like my client who used meth? Could you be entirely impartial or is there a part of you that feels like you couldn't do that? Because remember the standard under the code 2 25 is complete impartiality and that's where you're trying to show is that they can't be completely impartial. It would bother them, it would give them a bias to not do it. So you don't need to overcome, they never would do it. But whether it would be a part of a problem, would it come into their decision making and cause a problem and give them some pause to hopefully get rid of them for a cause?

Dan Kramer (: 15:47

And I think this is some Harry and I talk about a lot cause you always get the response, what good is the money going to do, especially for the non-economic damages. And Harry used to always teach me early on that the money is not for something. It doesn't go to something, it doesn't go to surgery. So it kind of gives you that opportunity to pivot and just say, if we prove that the value, even if this person used meth, the value to the loss of their quality of life is in the many millions of dollars, are you still going to cut it in half or even more because you're worried where the money will go? I dunno. I may want to introduce that concept a little bit.

Ricardo Echeverria (: 16:21

Yeah, I have a section that I do where I talk about that and I'll give you that and I'll give you an example of a case I tried earlier this year. I have a section in my outline of every vo dire called things you consider and things you don't. Now there are things that every one of you as human beings in deciding this case are going to want to consider. Like who pays for it, when does it get paid, does it get paid? Where does the money go? And you're going to learn that none of those things are things you can consider, but the judge is going to give you the things that you do consider at the end of the case. But is that something you would be comfortable with? Is following the law? The things you can't consider, even though you want to, may want to know who's going to pay for us, where's it going to go?

(: 17:03

That's not for you to decide, that's for the judge. We deal with those issues in the real world, but that's not for you to decide. We need to have you tell us what the value is of the loss. I had a similar issue, it was not a case I've ever had to deal with before, but it wasn't a wrongful death case. It was a young woman who was involved in an add-on collision back in 2015 and suffered a massive, massive brain injury and to this day is still alive or at the time of the trial was alive, this was in January. She passed away a couple months ago, but at the time of trial she was alive. And all accounts my neurologist, the defense neurologist say she was in a permanent vegetative state, meaning that even though she had some movements, she had enough brainstem activity to be able to breathe and to make involuntary movements.

(: 17:54

But she can't form an emotion, she can't form a thought. And most importantly, she cannot experience pain. So the arguments from the defense were they tried to knock out non economics altogether and say, how can you possibly have all these things if she can't do it? And I kept coming back to, look, there's one on there that always applies and that's loss of enjoyment of life and that doesn't require to know and appreciate the enjoyment that you've lost. It's just that you've lost it. And so we overcame those, but I knew that those were going to be arguments that they make and I just get the skunk out on the table. They already knew from the mini openings that she's in a permanent vegetative state. And I would say things like, there's some people who might say, why award money for non economics? It's not going to change her. On the other hand, the reality is she was changed not through her choice, but by something else. And we're asking you to award a value, could you do that? And surprisingly, every one of those jurors were on board. They knew that, Hey, look, just because she can't enjoy the money, I didn't get any cop out jurors at all. Everyone was willing to do it.

Dan Kramer (: 19:01

It's always a really good defense where you say, we hurt her so bad that it's not worth as much as it would be. It just tilted over that little hump and now we get a discount. I mean, yeah, it's ridiculous.

Ricardo Echeverria (: 19:15

But they're appealing that issue now. So we'll see. But I agree with that's exactly what the argument was. It's like they hurt her so bad that they want a discount. And I remember being asked because the judge did overrule the objection and said, well, do you really want all these factors on there? And I said, yeah, I do. Because then if for closing, and I know we're on a voir dire subject here, but to bring it home, I said, I went through all of 'em and said, the reality is they've hurt her so bad that she can't experience nine of these. She doesn't have the brain activity to form an emotion to be able to have it distressed. And then I just focused on loss of enjoyment of life. So it was like arguing a wrongful death case through the lens of a person who stole

Dan Kramer (: 19:52

Alive. It's like she's the plaintiff in her own wrongful death basically. Yeah,

Ricardo Echeverria (: 19:55

It's exactly right. Talking about the life experiences she lost out on. But again, the point was we covered all that in voir dire to make sure the jurors we had weren't going to be cop out. For example, another case I did up in Fresno, we had a 76-year-old Hispanic man who suffered a terrible outcome after an open heart surgery that never should have happened. And we had jurors saying, well, 76 years old, he was in a vegetative state as well and said 76 years old, what's the point? And those jurors got excused and I just embraced it. Anybody else feel that way? And we knocked out all the haters and then we were left with people said, no, I got no problem. And then you kind of have the golden years argument that what was lost for him were the most important years of his life that he worked his whole life to have that were taken away.

Dan Kramer (: 20:41

Do you bring that golden years up in voir dire?

Ricardo Echeverria (: 20:45

No, I save that for closing. I need people who are open to giving the money. I'll get 'em there with the argument, but I just need people that are not going to be, I don't think you can sell people on giving whatever, 60, a hundred million in voir dire. Usually people say, okay, I don't have a problem awarding money for that and it could be a lot of money, whatever that is. And then in closing is when you hit it home because you have a receptive audience. The people you got to get rid of though are those that say, I don't see the wisdom and why are we here for somebody who's that old? What's the point?

Dan Kramer (: 21:16

I do want to jump in there, but I want to quickly just thank the people at Law Pods for really making this seamless for us. I know Harry's a veteran podcaster, but I'm a rookie. So this really made it very, very easy and we really appreciate the law pads guys, Robert and their whole team for really making this seamless for us. But I do want to talk about money and how Ricardo gets there. But Harry, go ahead.

Harry Plotkin (: 21:41

Yeah, I was going to say, anytime that you're talking about how the money jurors thinking about how is it going to get used and everything like that, you're playing on the defense turf. And I know that there's a book out there by a defense lawyer who gives a lot of advice. They're probably the only one out there, but one of his things and one of the things that he uses to combat these nuclear verdicts is just to, which I think is inappropriate to talk about, really talk about how it's going to be spent. And he tells the defense lawyers throw out a number and just say, Hey, $150,000, here's what that could buy. Here's how that can buy the happiness for this person. Which to me is completely missing the point. You're missing the boat on full accountability. You're missing the boat on what it's actually worth.

(: 22:19

Just because some trivial amount of money is going to make someone a little bit happier isn't the point of what they've lost. It doesn't fill the hole. So I'm a big proponent, and I wanted to ask you, Ricardo, how you feel about it. And I like explaining to the jurors when you're gering them on damages, here's why it's important, but do you agree with me or disagree with me? Because otherwise I find that a lot of jurors have never really thought about it. They've never thought about, well, one of the purposes to hold 'em accountable. Yeah,

Ricardo Echeverria (: 22:43

No, they never have. And I give an example, for example, with non-economic damage, we're so used to valuing things as a society. I mean, you buy a tv, you use it, you watch, you pay for money for it. And the thing is, you don't go to the grocery store and say, what's a jar of having my leg for the rest of my life worth? Or what's a jar of having life without pain worth? It's just not what we normally do. But yet we ask jurors day in and day out to do that in trials. And the trick in voir dire is to make sure that we get jurors who are open to doing that. Many of 'em don't have a clue how to award money for non-economic damages. And I don't care if they do or don't. I'll educate 'em in closing. I need open-mindedness to do it.

(: 23:30

And that's where I get back to the credibility thing. Are you a reliable source of information? We know in closing, you're going to suggest the number you think the jury should award. You'll come up depending on the case, how you do it, but in vo dire, it's just a matter of getting jurors who were okay, I got no problem awarding money for non economics. Given the factors in this case, whether it be like my case with a methamphetamine issue or whether it's my young woman mother who has a massive brain injury can experience anything that I think is the goal.

Dan Kramer (: 24:03

So Ricardo, let me ask you on that. If you're going to ask a closing in the eight figures, which I assume you always do, are you bringing up many millions? Are you saying tens of millions? What are your key words either in mini opening or voir dire to get anchoring start anchoring high?

Ricardo Echeverria (: 24:20

I usually use words like multiples of millions, many millions things. That's about as far as I'll go. I'm not as bold as some lawyers are, say I'm going to ask for 50 million in opening. I don't do that. I never have. I don't think you have the credibility yet. Personally, I understand about anchoring and all that, but you could potentially turn off a juror said you're full of shit. I'm not ready to do that. Whereas at the end of the case, okay, I'm ready to do it. I've heard all the evidence and I think you got to build on the credibility you have. But I mean, it's saying things like many millions could mean two to three or it could mean 30 to 40. You got to build up the case. So that's generally how I'll do it.

Dan Kramer (: 25:00

If you say, I'm going to be asking for 56 and a half million dollars at the end of this case, the first 45 seconds you've ever spoken to them, I think you may lose some potentially good jurors that way, right? I mean, Harry, what are your thoughts?

Harry Plotkin (: 25:15

Yeah, I mean, credibility is the most important thing, especially early on in a case. And when you throw a number out a specific number, I mean you're damaging your credibility. And I know why some lawyers like to do it, which is that, Hey, I'm going to, not only am I going to get a big number out there, but I'm going to then use that loss of credibility with those are to get off jurors who would probably be terrible anyway. But here's the thing, if you throw out some number, you better be so good at getting calls that you get off every juror that you rubbed the wrong way because if you miss one person or you don't get 'em off, or they just sit there hating you silently, you've just created an enemy early on in the case that you maybe wouldn't have had. So I tend to agree with Ricardo and I usually when I write voir dire, I usually don't give a specific number, but I like to give a sort of general range. If it's a case that we think is going to be huge and it's going to be a punitive case, I may ask a number on are you open to the possibility that if a company is huge enough, it may take in the hundreds of millions if it's one we know is going to be a punitive case against a huge company, but otherwise it's just many millions and things like that.

Ricardo Echeverria (: 26:13

And Harry, I would say one thing about punitive damages, I'm less concerned about putting numbers out there for punitive damages because arguing punitive damages kind of takes care of itself. If you have a big financial net worth, because I'll do things like, let's say it's State Farm and it's 25 billion in surplus, and that's the leftover after you pay off all the bills, there's that great jury instruction. I think it's 1 0 4 that just because it's a corporation, you treat them the same as an individual and you must give 'em the same. You used the word saying twice and I highlight that word saying, what does that mean? You don't treat 'em any worse, but you don't treat 'em any better. And then make an analogy to a person with a net worth of a hundred thousand that cheated somebody out of X amount of dollars. What's 1%?

(: 26:59

What's 10% is 10,000, 5% is 5,000, 1% is 1000 and it sounds so reasonable. Well, if you apply that the same concept to a corporation that's got a $25 billion, then the numbers are staggering and it kind of takes care of itself. I definitely think it's worth having the discussion with non-economic damage, but punitive damages I'm not too worried about because if they're angry, because let's say if you get the punitive dance, the one thing about this is if you trying cases like a boxy match, you don't know if you're ahead or behind on the cards. You go through each round, you think you won, maybe you didn't, and you just don't know what the judges have on their card. So every round is a new, every day of trial is a new battle, but when you get the punitive damages, the advantage is that now this juror found that the conduct was malice suppression and fraud, despicable display, horrible conduct. They're on your side. And so now you're just reasoning with them about what's the right number to make sure it doesn't happen again, but at the unique quality of punitive damages.

Harry Plotkin (: 28:00

I will say though that every time that I'm picking a jury in a case where you're anticipating punitive damages, I do like to voir dire on the idea that are you open to the idea that the wealthier company bigger your company? The more that it'll have to be, we always usually get one or two jurors, not that many, but usually there's one or two jurors who say, I don't think that's right. Just because a company's bigger, you should get more punitive damages. And then it makes me thinking you're going after deep pockets. So I do like to identify those people and get rid of 'em. But you're right, nine out of 10 people, you don't need punitive questions because very few people will say, I don't like punitive damages.

Ricardo Echeverria (: 28:34

Yeah, it needs to be a meaningful punitive damage or in order to be meaningful, it has to match up with the wealth of the defendant. Otherwise you've got a company with a bajillion dollars and you award 'em a hundred grand, it's not going to do anything. It's not going to change anything.

Dan Kramer (: 28:48

Let me ask you, Ricardo, you obviously try different types of cases. You try a catastrophic injury case where you're coming in as the PI lawyer, but you also hold massive insurance companies to task and a bad faith case or whatever it may be. And you're probably approaching those maybe a little different from what types of jurors you're looking for. Why don't you talk to us a little bit about what types of jurors you're looking for in the PI case versus the bad faith case?

Ricardo Echeverria (: 29:16

Well, in a PI case, or like a wrongful death case, you're looking for jurors who are willing to award damages, non-economic in particular. And so you want jurors who have experienced human suffering know what it's about, have some compassion, some empathy and sense of fairness, and we'll do that. You're typically not looking for engineers, accountants, people who say, okay, what's the formula? What does one plus one add up to? How do you calculate non economics that are so arithmetically based? On the other hand, if I'm trying, and I did this last year with Harry's help trying a case where it's a hundred thousand dollars insurance policy that for which there was a demand and the carrier rejected it after they did a pretty thorough investigation, but not everything they should have done in particular one phone call that they should have made to an eyewitness that they didn't Ultimately, when they did talk to that witness, it exposed the case and they offered the hundred, it was too late and the case went, it was a $7 million judgment.

(: 30:17

So I'm in trial with the jury knowing there was a 100,000 insurance policy where a carrier did a lot of things right, but not everything. And there's one critical thing they should have done that phone call, and we are now asking for 7 million plus interest for that conduct. And the jurors I wanted, there are not the warm and fuzzy kind of jurors. I wanted the cold accountants, engineers, people who have precision in their profession that if you screw it up, you pay the consequences. And I didn't really use the analogy for in voir dire, but it kind of like if you have a pilot who has a hundred point checklist and he does 99 of 'em perfectly, but he fails to do one thing and then when he's five miles up in the air with 135 passengers and he clicks on the landing gear, oh, that's the one thing I didn't check and it's not working and there's a disaster.

(: 31:08

Are you going to say that conduct was reasonable and now you have to analogize flying of a plane with the importance of how you deal with a time limit demand? And in that profession of insurance, it is, it's a one-time opportunity to settle a case to prevent exposure to their insured. So you have to educate the jury on that. But the mentality is jurors who are very, like the accountants engineers who are very anal retentive are more the jurors you're going to want because you don't need them to give you money. The money's there, the judgment's there, they get to hear about all this. So it's a very different kind of approach depending on the case.

Dan Kramer (: 31:43

Yeah, I imagine the warm and fuzzy people would probably maybe feel bad for the adjuster said she's doing, she did a good enough job, she tried her best, all that kind of stuff.

Ricardo Echeverria (: 31:52

Exactly. No, that's exactly what you don't want in the bat. Faith case.

Dan Kramer (: 31:55

On that note though, so just going back to the PI cases, how much do you let someone, the demographics are the, and Harry and I have talked about this in a prior episode, the old school way of thinking of picking a jury. You don't want all these people you're saying or certain demographics or anything like that. How much do you take that kind of data and let it help you pick who you want on your jury?

Ricardo Echeverria (: 32:18

I don't really hold too tightly to that, although many times it does come true. You're picking the jury and you don't want an engineer perhaps on a PI case. And as you question them, you realize, I really don't want this engineer on the case it comes out, but I don't think you should hold onto those things too tightly. And I can give you an example of a case I tried. It was a bad faith case and it was a property damage insurance case. So I was representing a Marine down in Vista who had a $75,000 water damage claim. And the insurance company in my view, forced him around and acted unreasonably and we're down in Vista. It's a seven week trial, and I remember it was juror number six, and she was a young woman, you could tell she was into the process. She's leaning forward on the edge of her seat and I, oh, she looks like she's engaged.

(: 33:03

And we didn't have a questionnaire in that case, so I didn't know what she did for it. So I got to her and I said, now Ms. Smith, what do you do for 11? She says, I'm a claims adjuster. I said, okay, well who do you work for? I worked for Geico. How long have you worked for Geico? Two years. What do you do at Geico? I do MedPay. Have you done anything other than MedPay for two years? No. And then she volunteers, and I'm going to be leaving that to get into a new professional of personal training. So mental note, I think she's worked for an insurance company for two years. She's not jaded. She knows the rules that apply to insurance companies that the juries are going to hear. She's worked in MedPay, meaning she's basically rubber stamped 5,000 payments all day every day, 35 times a day for two years.

(: 33:47

She's never denied a claim. So I left her on the jury. I remember the defense lawyers were like, thank you, thank you, thank you. And she turned out to be my best juror where we got multiple million punitive damage award because she was so offended with the conduct and urge all the jurors that we have to make sure we punish this conduct. And it was a case where pretty clear on the phase one we got the 75 grand, but then there was a discussion on the punitive. Some people were low and some people were sky high including her, but she brokered the deal to get them to get a number that was in the mid seven figures to make something happen. So again, leaving an insurance claims adjuster's probably not the usual good idea in a bad faith case for a plaintiff. But in that case it was.

Dan Kramer (: 34:31

Yeah, I think it's a hundred percent. I mean especially if obviously this is why you got to talk to 'em. But you could be suing a restaurant I did on a slip and fall and there was a restaurant manager, the daughter of a restaurant owner or manager. And initially you're like, I don't want to have someone there probably deal with claims all the time. But once I started talking to her and finding out how important the rule following was to her dad and how he did everything by the book, followed every single safety rule, safety was his number one priority as customers were his number one priority when in my defendant violated everything and didn't care and lied about it. So she actually ended up being one of my best jurors. She was so frustrated and angry by how lax iCal the defendant was. So I think on a basic level, like we're saying restaurant owner, when I'm suing a restaurant owner, why would I ever have them on the jury? But you'd be surprised, people in their own profession get angry at others who don't follow the rules

Ricardo Echeverria (: 35:25

And you won't know that you start seeing their body language and how they're talking about it. And for example, I remember you talking about reading body language and how they say certain things. And I remember a trial I did in Bakersfield and I'm picking the jury and talking about damages. It was a wrongful death and a pi and you're going through it. And I could see this juror at the front row. She was like number 16 in the six pack, and I could see her at the quarter of my eye anytime good answers were coming in about damages. She's like nodding her head, shaking her head, and the body language was there. She was going to be awful. When I got to work, I always ask a completely open-ended question when I kind of know somebody's going to. So Ms. Fifth, what do you think about all this?

(: 36:07

And she says, well, I can be on this jury and I could be fair, but if I'm all the jury's, the verdict's going to be small. And I said, okay, well you don't know much about the case and whatever small is to you is what you're telling me the verdict's going to be. Yes. We went back in. I challenged her for cause. And of course the defense is, well, she said she could be fair. Just because she's conservative doesn't mean that she can't be fair. I said, well, she said that no matter what the evidence is, the verdict's going to be small. What if she said, no matter what the evidence is, I'm going to award millions of dollars. Would we really be having this conversation? And then she was gone. But again, that's just an example of reading the body language. And that gets back to your point, even if it's somebody who's within the defense industry that you're suing, how they answer questions will give you a lot of insight in terms of where they really stand.

Dan Kramer (: 36:51

On that note, thank our wonderful sponsors. Ricardo, I think you know this first sponsor quite well. The wonderful ladies at KW court reporting, Cameron and Whitney, Ricardo, I think you know them.

Ricardo Echeverria (: 37:03

Oh yeah. They're dear friends of mine. Cameron and Whitney are wonderful. Oh, they're watching, but I can't say enough great things about them. They've been dear friends of mine for many years.

Dan Kramer (: 37:12

Yeah, it's a great court reporting service they have. My office is in trial right now, Theresa Johnson from my office, and we love kw. They do 100% of our trials, very reliable, hardworking court reporters can get us dailies, roughs exactly what we need to make our life easier. Nothing worse than waiting for a transcript when you're in trial and you got to get your closing together and all that. There's nothing worse. And Cam and Whitney from KW core reporting are fantastic certified women and minority owned company

Harry Plotkin (: 37:45

In both sides. Love. I mean, I remember when I would do some trials with Whitney and the defense every time I would work on a case with her, with the plaintiff lawyer, the defense lawyer liked her so much that they would start hiring her for their trials too. So they just have people who, reporters who are amazing, get along with both sides. You never have a problem getting the other side to agree to use them.

Ricardo Echeverria (: 38:01

Whitney's done a lot of my trials. She's wonderful, but they're both a dynamic duo.

Dan Kramer (: 38:06

So we'd also like to thank Tory Owen structured settlements. Tory is just a very, very hardworking guy. I just had him on a structure last week on a mediation. He's always available. You can text him. He's actually, he structures a lot of trial lawyers, their fees. So that help boost that retirement account. Works great with clients, torrio and structured settlements. Really, really good guy, easy to work with. And there's nothing more frustrating than when a structured person is hard to get ahold of when you're trying to make a deal and you need the language and the settlement agreement and the client's a little worried and you can't get ahold of them. But Tory always makes himself available. And our last sponsor verdict videos. Harry, tell us a little bit about verdict videos.

Harry Plotkin (: 38:50

Yeah, I mean they're tremendous. Kelly Deutsch who runs verdict videos is incredible. One thing that I love about them, they do day in the life videos that just are just emotionally just hit home with jurors. They do settlement documentaries, mediators love seeing that stuff. It's one thing to just give the facts of your case. Another thing to show this professionally done thing, to show the other side, this is what the jury's going to be feeling in trial. But one thing that I think is amazing about them and about Kelly is that they're almost like hiring another jury, like a trial consultant because they will, I mean, they're such objective straight shooters. They will tell you the strengths and weaknesses of your case. She will tell you, Kelly will come out and say, you got a problem here, or This is a big deal, you're kind of missing this.

(: 39:27

And so they're not just there with a camera just shooting. They're there having done so many trials and given you their insights on what you should be emphasizing in their case. But I would absolutely have something like that from verdict videos anytime that I go to a mediation because unless you don't want to settle the case, if you don't want to settle the case, don't go that route. Don't even have a mediation. But yeah, verdict videos is incredible. There's times when I'm like, don't settle this case. It's so good. But you owe it to your clients obviously to get the best result that you can. So

Dan Kramer (: 39:55

Yeah, Kelly's wonderful. She's got a huge heart, which I think is important. When you want someone to tell your client's story, someone that really cares, gets really emotionally invested. I've seen her, I've seen her just after she's done a day of filming at an L-A-T-L-C event, and you could tell she's felt it.

Ricardo Echeverria (: 40:11

Kelly's got a heart of gold and she'll move heaven and earth to do everything she can for you to help you help your client. And she's been a huge supporter every step of the way and they do fantastic work. You can't have enough great things to say about Kelly.

Dan Kramer (: 40:25

Yeah, so thank you kw core reporting, torrio and structure settlements and verdict videos for your support of this podcast. So Ricardo, a question I had for you, and I've actually learned this in the last couple of years from Harry, is cause challenges. When you are doing a trial and you're asking questions a certain way, are you trying to get as many cause challenges as you can?

Ricardo Echeverria (: 40:50

Yeah, I mean at the end of the day, you want to get rid of the really bad haters. You just want to get those out of the way. You got to identify 'em number one, but then you got to get rid of them because you're not, as we've all heard before, you're not picking the jury, you're deep picking the jury because the really good jurors are going to go too. They're all going to be bounced and you're going to be left with people in the middle, which are open or open-minded. But when I have somebody trying to develop a cause challenge and I'll let them express whatever their views are, and I've hopefully, if I've done my job right at the beginning, they feel comfortable speaking their truth to you and being honest that they hate your case. And you got to reward that when they give you that, say, thank you very much Ms. Smith.

(: 41:32

That's exactly what I meant when I was looking for brutal, unapologetic honest. That's exactly what I wanted. Anybody else feel the same? And then you build it up by very generally not forcing somebody and said, correct me if I'm wrong, but it sounds like you feel pretty strongly about that and the user are going to say yes or give their answer. And is this something that you've felt for a long time? I mean is it just something recently or have you felt this for a long time? Is there anything you think I can even say to change your mind? And I'm not trying to, I just want to know if this is really your core belief and building them up organically so that then you've got the record to get rid of them for cause.

Harry Plotkin (: 42:10

Yeah, you definitely want to keep the ball rolling on. Cause I remember one time, Ricardo, this would've probably killed, I was doing an insurance bad faith case in Arkansas and the attorney for the defendant, the insurance company got up and said, does anyone here hate insurance companies? Right? A bunch of hands go up, he talks to one person and then he immediately changes the subject. He could tell he just didn't want to hear it. He didn't want the vibe in the room to get negative. And so for you, how happy would that make you when he just ignored, he kind of didn't say, who else feels that way?

Ricardo Echeverria (: 42:38

It's funny though, with insurance, bad faith cases that I found is you ask people whether they like insurance companies or don't like insurance companies, inevitably it's one of two schools of thought. There's going to be jurors saying, I can't stand insurance companies. They screwed me over, they screwed my father over. You're going to get those, you're going to have people who hate insurance companies, but you're also going to get more than you think. Jurors say, my insurance company's great,

Dan Kramer (: 43:02

My wife loves insurance by the way. She's like, she loves it.

Ricardo Echeverria (: 43:06

And you know why? The ones that love their insurance companies, they're the ones that had a $5,000 mold claim, $10,000 water damage claim and it got paid for right away, blah, blah blah. And sometimes even those jurors aren't going to be bad for you. So was that claim handled to your satisfaction? Alright, are you opening to listening to the evidence in this case and judging for yourself whether you think this case was handled appropriately based on the law and the evidence, you can have somebody who has a good experience be completely offended when they see the conduct in your case.

Dan Kramer (: 43:36

Let me ask you, you did mention the bad jurors, you obviously want to go after the bad jurors, but the good jurors are going to be gone too. What are you doing, and this is again something that Harry has really worked with me on my jury selections is to prehab meaning that you want to try to prevent the defense from getting these good jurors for cause. Are you going to box them out at all to do anything to prehab that good juror to hopefully protect the cause challenge on them?

Ricardo Echeverria (: 44:02

Yeah, I mean you definitely want to try to do that to get people who, I mean, I'm more just very, very upfront and transparent. I just tell people, tell me your brutal honesty, however you feel. And even if they're good and they're going to get bounced, sometimes I'll even to gain credibility of something. So obviously against the other side in favor of me, I said, Ms. Smith, it sounds like you're heavily in favor of our position in this case. Do you think this may not be the right case? You may not be able to be to them. And now the other jurors have, God, this guy is really, he's a straight shooter. He's trying to bounce somebody off. That's good for him. You're not going to get going to get off anyway. So why not get the brownie points in front of the jury and the judge and do it that way.

Dan Kramer (: 44:45

I do that too. Harry, what's your thought on the prehab? I know you have some good ideas.

Harry Plotkin (: 44:49

Yeah, I mean, if it's somebody that it's just so obvious to themselves and everyone on the jury that they just hate, they're just angry and furious insurance companies, I mean then I don't try to fight. I think you lose credibility by doing that. And I think you want to give the jurors the impression that you're not, you want a fair fight and you want fair jurors, then you're not going to get the jurors on the other side who are bad for you talking to you. But at the same time, I like to do a little bit upfront to just to let those jurors know that just because you dislike insurance companies or big corporations in general, or if you had a negative experience, that doesn't automatically disqualify you. As long as you can judge this company fairly on what they did and if it's upset, what they did is upsetting.

(: 45:30

That's not a bias, that's having a conscience. And if they didn't do anything wrong, are you going to find against them? They have no reason to worry about you. And most jurors kind of fall in that category. But for me, the thing is a lot of jurors who are good for plaintiffs think that they're biased. And I don't think it's a bias. And if you explain it to 'em, a lot of them get it and they go, I guess that's not a bias. Because at the end of the day, I mean the best question you can ask them is if the evidence convinces you, this insurance company did absolutely nothing wrong, do they have any reason to worry about you and all? A lot of the jurors will say no, and you're going, that's what a juror is. I mean, just because you get mad when insurance companies treat people poorly. That's not a bias. You're allowed to decide. I mean, the law says those companies should be held accountable, but someone who's like, I was so mistreated so badly and I hate their guts so much, I mean, I wouldn't try to rehab that person.

Dan Kramer (: 46:16

And Harry, I do like the way you've written some of the questions for me where it's okay if you get angry to feel anger for the evidence to make you angry, but that doesn't make mean you are already deciding for the plaintiff does it? Honestly, the hardest part with that is educating judges. That person should not be for cause just because they get mad when corporations are negligent. That doesn't mean they're biased against this individual defendant corporation in your case. I think that's a harder thing to almost educate judges on. I find,

Harry Plotkin (: 46:42

I find most judges do like it when you kind of rehab people because they, I mean, Ricardo, you probably see it. Most judges don't like to give that much cause they would prefer no cause and so they really appreciate it. I want to go back to another really good teaching point that Ricardo brought up about jurors expectations. People who've had good experiences. I teach this a lot of times so counterintuitive, which is sometimes the jurors who have had horrible experiences with the kind of companies that you're suing actually are the worst ones for you. And sometimes the ones who are people who have had employers treat them fairly or insurance companies treat them fairly or great service from doctors are actually great for you because when they see what this defendant did think about their expectations and their standards, if they have really high standards and a defendant fell short, they're going to be shocked.

(: 47:27

They're going to be angry that we were talking about before with your partner Mike Bidart, who's an incredible, incredible lawyer in that case against Kaiser. We had a juror, I remember this. We had a juror on there who just on the surface seemed like a defense juror. She was kind of wealthy. She was dressed really, really well. She was like a corporate, usually wouldn't keep her. But I remember her talking about she was one of the jurors who had gotten an MRI before for over something really minor. And remember the issue in that case was this dog, they delayed approving an MR mri and I was thinking this juror expects good healthcare and she got an MR MRI for some trivial reason and she's going to be pissed off. And that's exactly what happened. But the defense is going, oh, she has no, they're thinking, well, we only worry about people who have an ax to grind with doctors. In fact, I found that people who have really bad experiences with healthcare tend to say that's how it is. I'm not shocked by what happened there.

Ricardo Echeverria (: 48:17

Just on your point, an example of this exact topic is the example I gave earlier about leaving the insurance adjuster on the trial because she's worked for an insurance company and has always approved claims, but she's knowledgeable of the rules. So when she got on there, she said, oh my God, this is awful. And it shocked her conscience that happened. And so she was our best juror. But I agree with you that just because somebody has a positive experience doesn't necessarily mean they're going to be a defense witness.

Dan Kramer (: 48:44

Alright, well, Ricardo, this has been really enlightening. I love this. I've learned a lot. Any final words for some of our newer attorneys out there on picking their first jury trial?

Ricardo Echeverria (: 48:57

Well, all I would say is we talked about at the beginning, I think jury selection is probably the hardest part to do in trial. And it's more about, for me at least, establishing a connection with you and the jury at the very beginning of it. And if you're starting out, it's especially art because shit, there's 60 people in the room and there's a lot going on and you're trying to keep track of the names and all that. But at the end of the day, I always tell younger lawyers especially, there's a reason we call this practicing law. You're never perfect at it. You always get better. That's why you keep practicing, practicing, practicing. And the more you do it, the better you get at it. You're never perfect at it. And you always get ideas from anybody who does it. You may pick up one or two nuggets from another lawyer or many more, and it's just keep an open mind to it and keep trying cases. The only way you get better

Dan Kramer (: 49:47

And listen, I think on that note, listen to what they have to say. Don't follow your outline. Don't follow your notes. Be a human being and listen to what they have to say

Ricardo Echeverria (: 49:57

On listening. I had my roommate from college who unfortunately passed away of cancer five years ago, and he's a wonderful guy. He used to always say, I got two years and one mouth, so I should listen twice as much as I speak.

Harry Plotkin (: 50:09

And from someone who's been in trial with and seen Ricardo and seen him give opening and closing demonstrations and everything, one thing that young lawyers could learn from Ricardo is credibility means don't put on a show in voir dire. That's not what jurors want to see. They want to see you earn their trust and earn their, and Ricardo's an amazing speaker. I mean once they hear him in opening and closing is captivating, but if you watch Ricardo and vo dire, it wouldn't be the most thrilling, exciting thing. It's not like TV worthy, but that's where you want to be. You don't want to be some flamboyant person who's kind of rubbing everybody the wrong way. You want to show him from the beginning that you're serious and you're humble and you're honest. And so it may sometimes not be the most exciting thing, but really a good voir dire is kind of boring. That's

Ricardo Echeverria (: 50:53

True.

Harry Plotkin (: 50:53

That's really

Ricardo Echeverria (: 50:55

Good actually. And I've had Harry write mini openings, which he's a master at and that's another example. Many opening is pretty boring. You're not giving them all your good stuff. You're just putting out there the general maybe a little nugget that maybe there's something there that they're going to learn about in trial, but you're not educating the jury on all the good stuff. You're educating more on the bad stuff and just trying to make sure you identify who the real bad jurors are to clean up that and then get what's left in between.

Dan Kramer (: 51:23

Yeah, I totally agree. I mean, jury selection is not the time to be Cicero up there or some amazing suave speaker. In fact, you lose credibility. I think Ricardo is a hundred percent right. The Ricardo picking a jury versus Ricardo in closing argument is very different person in closing argument. He's Cicero. But you don't need to do that in jury selection. That's really good advice for the young lawyers out there. Alright, with that, thank you. We look forward to the next episode of Picking Justice. Thank you, Ricardo Echeveria, thank you to our sponsors, KW Court reporting Torrio and structure settlement and verdict videos. Harry, always a pleasure, man. Thank you. Law Pods.

Voice over (: 51:59

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