In this episode Scott talks with Ken Levinson, a great personal injury lawyer from Chicago. Ken discusses a sexual abuse case in which he not only had to protect his client, but also protect the jury.
Transcript for Trial Lawyer Talk, Episode 22: Ken Levinson
Scott Glovsky: Welcome to Trial Lawyer Talk. I’m Scott Glovsky and I’m your host for this podcast where we speak with some of the best trial lawyers in the United States. First, today I’d like to thank our exclusive sponsor, Traci Kaas from the Settlement Alliance West. Traci is a phenomenal settlement consultant and I’ve worked exclusively with Traci for the last 10 years because she cares. Just like the folks I interview on this podcast, she cares about the clients and does a great job. Now, at first I was very hesitant to get a sponsor because this podcast is not about making money and it never will be. All of the sponsorship money is going to advertise the podcast so that we can spread the word and get more listeners. Thank you, Traci. Let’s get started.
I’m very proud to be sitting with a good friend and a great lawyer, Ken Levinson, in Chicago, Illinois. Ken is a phenomenal personal injury lawyer who speaks all around the country and is truly a wonderful human being. Ken, thanks for being with us.
Ken Levinson: Well, thank you for having me Scott, it’s an honor to be here.
Scott Glovsky: Ken, can you tell us a story of a case that had a profound impact on you?
Ken Levinson: Sure. I’m so lucky to represent such wonderful people throughout these years. One case in particular a number of years ago was a case about a young girl who was about seven years old and she was abused at a home daycare. It just had a profound impact on me and our practice.
Scott Glovsky: Tell us the story.
Ken Levinson: Well, I got a call one day. I have a child safety blog and we speak on child safety issues throughout the country and write about child safety. I have three boys and I’m very interested in children and keeping them safe and protecting children. I got a call from a woman out of state, she was from near St. Louis and her daughter had been abused at a home day care. It was pretty clear that she was abused. The abuser was convicted and served a lot of time, he’s still in prison now. The family wanted to look at their legal options on the civil side now that the criminal case was done.
I met with the family and I felt there was enough to file a lawsuit after some investigation. I filed a lawsuit against the day care, the day care owner, and the abuser. Now, in the middle of litigation it turns out that the day care had no insurance and the owner of the day care declared bankruptcy. We were left with just the abuser who was in prison, who had no insurance, who wasn’t defending the case, and really no opportunity to get true justice in terms of a civil money judgment.
I flew down to St. Louis, I met with the family to give them their options, and then I laid it out and said, “We are not going to be able to collect any money from the lawsuit and here’s why. There’s no insurance and such but we have a case against the abuser pending. We can drop the case and move on or I won’t abandon you, I’ll continue with the representation, continue with the case.” The parents of the young girl thought about it and they said, “Well, we’d like our day in court, we’d like you to continue on with the case.” I continued on and went through a jury trial and prepared the case like I’d prepare any other case. Eventually we asked the court, the judge, for a jury trial.
Scott Glovsky: How did that feel? In other words, you’re spending money to prosecute the case especially out of state in a case where you’re never going to make any money and in fact are going to spend money to pursue this case.
Ken Levinson: Well, I knew as a pure business decision it wasn’t the most wise choice. I felt that one, I agreed from the beginning of the case to represent this family and not just the little girl, this beautiful little girl, but the family. I did not want to abandon them, one, and two, I felt it was very important for the parents. They’d expressed this to me in a number of ways. It was really important for them to get their day in court. Sometimes a case is not only about the money, it’s about getting the story out, it’s about getting justice, and it’s about a jury of their peers in the community doing what they think is right.
I felt strongly that, you know what, we’re going to go forward. I made the decision and we just went full force. I knew it was the right decision for me, not necessarily the right business decision but I wanted to do it, I felt good about doing it. I enjoyed helping the family, getting to know the family, that’s one of the things we do maybe we’ll talk about it. I really got a lot out of it. I certainly got more out of the case than I gave.
Scott Glovsky: Now, you’re taking a very young girl who’s been horribly abused and you’re making the decision that you’re not going to abandon her. Where did that come from, what’s your connection?
Ken Levinson: Well, I felt this family had been through so much. In the criminal case the family, the mom and dad weren’t really allowed to tell their side of the story. It came out when I met with the family and I met with them at their home many times. I met with them at different locations, at hotels and conference rooms and I really got to know the family. I think most trial lawyers do that or should do that. It came out that initially when this abuse came out the police separated the parents from the young girl and there was some investigation whether the parents did something wrong. Maybe they were involved, maybe they abused this little girl.
There was this accusation that was out there that one, maybe they did it, maybe mom and dad did something wrong. Two, maybe they didn’t do enough to protect their child. It was important for the mom and dad to get their story out and to have a jury hear the full story, not just a portion like they did in the criminal case. In the criminal sentencing the family got to give a short victim impact statement but in the case we handled, the civil case, mom and dad got to tell the full story. It was very cathartic for mom, for the dad. I thought that was very important.
What’s your main job as a father? To protect your children, your young girl, your seven year old girl, that’s your job as dad. To be accused that maybe you did something wrong or to even maybe subconsciously think or consciously think, “I didn’t protect my daughter the way I could or should,” it’s devastating. I was able to let or give the dad the forum to talk to a jury and have a judgment, a written court order say, “No, you didn’t do anything wrong, here’s who did the wrong thing,” the abuser. It was very, very helpful for mom and dad and the little girl.
Scott Glovsky: Emotionally you must have a connection to this case. Where does that come from?
Ken Levinson: Well, I have three boys, three young boys. They’re getting bigger now, two are in high school but at the time the case was around … I’ve been so shaped by my kids, helping raise my children that protecting them, caring for them. God forbid, thinking of the unimaginable, if something like this could happen to one of your children how would that be? I felt if there’s anything I can do to help this family or anything I could do to make it better in any way I have to do it.
I’ll give you … Even jurists feel the same way. Eventually when we went in front of the jury there was one middle aged guy my age and he said to me in jury selection, he said, “Ken, I don’t want to be here.” I said, “Please tell me more.” He said to me, “I have young children and I don’t want to hear about the abuse, I just, I can’t do it.” It really resonated with me because I get that, I don’t want to hear it either. I said to the juror, “Would it be okay if I kept you on this case but I didn’t go into the details of the abuse because we can imagine what happened, we don’t need to talk about any gory, specific details. Would that be okay with you?” The juror paused and he said, “Yes, that would be okay,” and I got his permission to let me keep him on the jury.
After the verdict he came up to me, shook my hand. We had no communication with words but the look in his eye and the shaking my hand, we understood each other. That we protected this child who was abused and you’ll notice I’m not mentioning her name, I don’t want to have her name out there. We protected the child, the parents, and made it safe for the jury and I didn’t want him to have to hear about it and I get that. Sometimes it’s about making sure everyone’s protected, the jury, even if it means not telling the jury all the details of a case. They need to be protected just like our clients need to be protected.
Scott Glovsky: How did you go about protecting the little girl?
Ken Levinson: We made the decision, and I told the judge before the jury was selected that we were not going to have our little girl testify whether it hurt the case or not. The parents and I were very conscious, we all wanted to protect her. We didn’t want her to relive the bad things that had happened to her in any way. Our compromise was we would get testimony in other ways, through counselors, through the parents, through other means. We would have our little girl meet the jury at the very beginning of the case, say hello, and then the rest of the trial she waited in the hall with one of the parents, they would rotate.
We didn’t want to expose her to any traumatic damage at all, reliving anything, part of the case. We made that decision. Whether it was best for the case or not good for the case our primary responsibility was help the child, this little girl, and that’s how we did it. I’ll tell you one quick funny story. As I would go down to St. Louis and meet with the family, at one time the little girl would notice my socks. I always wear, you can see I’m wearing crazy, pink polka-dotted socks right now. At one time the little girl said, “I love your …” She would call them, “Your crazy socks.”
When I’d go down to meet with them in St. Louis mom would say, “Hey,” the little girl we’ll call her Jane. Jane would say, “Janie wants you to wear your crazy socks,” so we built a bond by our socks. I’ll never forget the week before trial I was at the department story downtown Chicago in Macy’s looking at the girls sock department. I have three boys, I had never shopped for a little girl before. One of salespeople looked at me like I was crazy because I was lost and I said, “I need little socks for a nine-year-old girl that’s got polka-dots and stripes and colors. I found some and right before trial I gave Janie the socks and we both wore our crazy socks to trial. The judge looked down and said, “I love your socks.” It really created a warmer, safer zone, if you will, safer atmosphere for little Janie and it helped a great deal.
Scott Glovsky: Tell us about the impact the case had on you.
Ken Levinson: Well, it really emphasized to me that sometimes getting a verdict, whether it’s about collecting money or not collecting money, it’s more than just what the verdict is. It’s about getting the story out, it’s about getting your say, it’s about having members of the community reach a decision that’s just. Mom and dad didn’t do one thing wrong, all they did was do what many, many parents do, they let a day carer watch their child while they were both hard at work. There was always a bit of guilt that maybe they should have known, maybe they should have done something else, but the jury told them, “No, it wasn’t you, it was this evil person.”
It was very cathartic for mom and dad to tell their side of the story. How it felt when this first came out when the police and social workers separated them from their little daughter, that maybe there was something they had done criminally or wrong. To get the story out that no, they didn’t do one thing incorrectly, one thing wrong showed me that it was much more about getting the truth out and protecting our family here, not just little Janie but the whole family. It’s more important than an actual money judgment which lawyers talk about all the time.
Scott Glovsky: It must be difficult dealing with a case involving such profound trauma and sadness. How did you deal with that?
Ken Levinson: It was. I mean, there were certain times I just did not want to look at the file. I didn’t want to read the reports, I had to really almost psych myself up to do it. Again, looking at what happened, my own children, it’s a tough thing to hear about and learn about. Even though there was a very sad circumstance and very difficult situation there was a lot of positive. Janie was doing much better, through counseling, through the efforts of mom and dad, through time, through knowing that this abuser was in prison and will never get out, knowing … Janie would call him the evil man, the bad man. He would never hurt her again.
To see the progression of Janie and how well she was doing in school and in life was so helpful. Mom and dad worked at efforts to raise awareness of these issues in the community and to help other potential victims and other victims. It wasn’t all devastatingly negative and emotionally draining, there was some positive, from the funny socks to stories and getting to know a wonderful family, hard working, terrific family. It wasn’t all down and negative, there were some real positive things that came out of it.
Scott Glovsky: You know, it occurs to me that much of what we do in life and in trial lawyering is about relationships. Any comment on that?
Ken Levinson: I think it’s almost all about relationships. Your relationship with your client and caring about your client, and getting to understand where they’re coming from. Getting to understand everyone in the courtroom as a trial lawyer; from the juror we talked about to the whole jury, to the judge, to even your opposing lawyer. What are they thinking about? What’s your relationship with them? How you treat your opponent. Juries understand the relationship and they witness that, they observe it. If you’re nasty or discourteous or unprofessional they get that, they notice that. You have to live with yourself and be the type of person, type of lawyer you are or you want to be, and the relationship is vital.
Scott Glovsky: We’ve had some listeners ask for advice about how to prepare a case for trial. I know you’re an expert in focus groups and you speak around the country on how to do powerful focus groups. Did you do a focus group in this case?
Ken Levinson: We did not do a focus group in this case. I’ve done focus groups on other abuse cases and I sort of gleaned knowledge on those issues and some of the key issues. Focus groups can be very powerful, I highly recommend doing a focus group, testing your case, testing your theory, see what facts resonate what facts don’t.
Scott Glovsky: In this case, in this story, what had you learned from focus groups that affected your trial preparation and trial?
Ken Levinson: Well, I think there is a lot of great lessons from focus groups in this type of case. There’s a tendency for certain jurors, one, not to be there and hear this gruesome situation or facts that we talked about earlier. There’s another dynamic when some folks want to blame the parents and say, “Well, wait a minute, where were you protecting your daughter, your son?” That’s an issue I think you need to address in these cases. Another issue that resonates with prospective jurors or focus group members is the value of money and the purpose of money and will it make a difference?
I think most jurors, almost all jurors want to do something that’s useful and helpful in giving a money judgment verdict. They don’t want to make someone rich and no one wants to make someone rich for no reason if it’s not justified. I think jurors care about the money and signing a verdict for a substantial amount of money and having it mean something and being worthwhile. Now, in this case that we’ve been talking about today, Scott, it was an interesting issue because the jury knew early on that it was uncollectible. Some of the things that the judge had informed the jury, instructed them about indicated that the assailant was in prison and the judgment wasn’t going to be collectible whether it was a million dollars or in our case it was 43 million dollars or $100, whatever it was. The family wasn’t going to see any of it or most likely.
The jury knew that and many of the jurors talked to me about that in jury selection. I’ll never forget one juror said, “Why are we here if the judgment, any judgment we render is not going to be collectible?” We talked about that, talked about the reason to be in a trial and have a jury in a case that maybe the money won’t be collected. In fact, in this case most likely wouldn’t be collected. One of the jurors said to their fellow jurors, “Do you remember that case where a convict wrote a book and got money from writing a book? We want to make sure that doesn’t happen.” Another juror said, “Yeah, what if he wins the lottery in jail or after he gets out of jail if he does?”
There’s other things that juries are thinking about in terms of money that you can glean from focus groups in other ways. The relationship we talk about with the jury that you and I spoke about earlier in thinking these things through and really honestly listening to the jurors and their concerns can raise a lot of issues that need to be addressed.
Scott Glovsky: When I hear about this story I immediately think of my two kids and the concept of any type of abuse is so incredibly scary that I don’t want to listen. I want to turn off and blame whoever I can not to feel it, and to hear it, and to have to even think about it. Can you talk about listening to your own feelings in terms of preparation to communicate the story to the jury?
Ken Levinson: That’s a great question, Scott. The way I addressed it was sometimes less is more. We talked about some of the issues we had to at the trial but we did not go into specific, very gory, explicit, devastating details because the jury knows and they’re smart enough to figure it out. Like when you’re watching a movie or reading a great book, they don’t need to tell you everything for you to know the truth. It’s almost like a sculptor sculpting things away to get to that masterpiece. We want to try our cases and present the masterpiece of a story of a case and sometimes you don’t need to hand write everything out for the jury and everyone to understand.
People know the truth if you give them the facts and enough of them to make a decision. There was a lot we left out but I think the jury got it. The jury was smart and paid attention and cared about the family. We didn’t need to give them too much and really give the jury things that would be, frankly, disturbing and needlessly upset people.
Scott Glovsky: It’s almost like the storytelling aspect of the movie Psycho where Alfred Hitchcock never shows you a knife going into a body, it’s the same concept I guess.
Ken Levinson: Right, right, I think that’s exactly right. Steven Spielberg does a great job of telling stories of real people’s life, right? Saving Private Ryan or Schindler’s List. If he told every detail the movie would last a month but a movie’s going to last two hours or three hours at the most. There’s an art to what to leave out and yet still have a story that resonates and that’s truthful. That’s something that lawyers do, not just off the cuff, it’s something strategically trial lawyers think about, and analyze, and test, and revise, and change, and edit to come up with the best story. With giving enough information but not overload or not too gruesome or too upsetting but yet the truth comes out.
Scott Glovsky: Ken, what advice do you have for young trial lawyers out there who want to learn how to try cases and learn to be better lawyers?
Ken Levinso: Well, you know now there’s so many great ways to learn. There’s wonderful seminars, whether it’s at Trial Lawyers College or AAJ or your local trial bar. Illinois has a great Trial Lawyers Association. There’s so many things to read, and learn, and see, and videos, and books. Trial Guides has some of the great books on becoming a trial lawyer, and examples, and listening to other successful trial lawyers, and reading, and maybe even transcripts of trials. Talking to lawyers who’ve tried cases and about their successes but not only about what’s worked but what has not worked. Learning and, most importantly, getting up in front of people and presenting your case. Trying cases or getting up in maybe a focus group or in front of other lawyers and practicing.
There’s certain things people rarely practice. My guess is most trial lawyers will get up before a trial and practice their closing argument or opening statement but very few lawyers practice things like jury selection. There’s ways you can do it. You can get some folks, almost like focus group participants and practicing working on talking about issues in your case with non-lawyers who have no interest in the case. Just getting up on your feet and practicing and getting other experienced trial lawyers to critique you and get up and do it again and figure out how you can be better. Listening and really having an open mind on how can I be a better trial lawyer because there’s no such thing as the perfect trial lawyer, Jerry Spence is close but I’m sure he would say he’s not perfect.
There’s always room to get better, and practice, and get insights from people, and read, and learn, and revise. It’s a wonderful profession and it’s a wonderful endeavor.
Scott Glovsky: What are the one or two books that have had the most profound impact on you in terms of being a trial lawyer?
Ken Levinson: Well, I’m constantly reading books about trial lawyering, and cognitive science, and decision making so I don’t know if I can limit it to one. Certainly any book by Jerry Spence I would read if I hadn’t read it already, read it again. Any book by Jerry Spence is well worth reading, he’s one of the best. Rick Friedman’s got great books, David Ball has written very, very extensively and very thoughtfully about what we do but there’s so many. I would go to the Trial Guides website and take a look and pick one or two books that interest you. Randy McGinn is a wonderful trial lawyer, she’s written amazing works on what we do. There’s just dozens and dozens.
Scott Glovsky: Thank you so much for being here, Ken. Thanks on behalf of your clients and the lawyers you teach and for taking the time today to share with us not only your interesting story but great insights into getting better, which is what we all want to do.
Ken Levinson: It was truly an honor, thank you for having me, Scott.
Scott Glovsky: Thank you.
Thank you for joining us today for Trial Lawyer Talk. If you liked the show I’d really appreciate it if you could give us a good review on iTunes and I’d love to get your feedback. You can reach me at www.scottglovsky.com. That’s www.scottglovsky.com and I’d love to hear your feedback. You can also check out the book that I published called Fighting Health Insurance Denials, a primer for lawyers that’s on Amazon. I put the book together based on 20 years of suing health insurance companies for denying medical care to people. It provides a general outline of how to fight health insurance denials. Have a great week and we’ll talk to you in the next episode.