In this episode of Trial Lawyer Talk, Scott speaks with Lubbock, TX attorney Rafe Foreman. Mr. Foreman tells Scott about a memorable personal injury case.

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Transcript of Episode 54, with Rafe Foreman

Scott Glovsky:

Welcome to Trial Lawyer Talk. I’m Scott Glovsky and I’m psyched that today we have Rafe Foreman, who’s going to share with us a wonderful story that we’re all going to learn from. Rafe really walks the walk and talks the talk of being a caring trial lawyer. He’s one of the best listeners I know, certainly one of the best storytellers I know, he’s incredibly creative and incredibly dynamic. And he’s going to tell us a story today about a case that he tried that really touches upon the ideas of how to discover a story and where is the story in your case, and what’s the story that resonates in our gut, and what’s the story that’s going to resonate in the jury’s gut.

Rafe has been a full-time law professor for the past several years, fortunately for us and our clients, should we have the wisdom to bring Rafe into one of our cases. Rafe is now back trying cases. He’s based out of Lubbock, Texas, but Rafe tries cases all over the country. I’ve been trying to get him to come to California to try a case with me for the past several years and it looks like now maybe he’ll have the time to do it. So, please enjoy. I’m very excited because this truly is one of the best episodes that we’ve had. And let’s get started.

I’m very grateful to be sitting with one of my true mentors, a friend and a lawyer who’s helped me personally, far more than I value anything that anyone has done to help me professionally. Rafe Foreman is a wonderful, wonderful trial lawyer, teacher of trial lawyers and one of the most talented individuals at connecting with other people that I’ve ever met. Rafe, thanks for being with us.

Rafe Foreman:

Thank you for having me Scott. Really is an honor and privilege to be here with you. And it’s good to see you.

Scott Glovsky:

It’s wonderful to see you. Can you share with us the story of a case that had a profound impact on you?

Rafe Foreman:

Well, sure. And I appreciate you asking. All of my cases, they’re somehow like your children, it’s hard to pick one that has the most impact, but the reason that I’m going to tell you about this case is because, well it had assessed a successful outcome. Spoiler alert. I did something wrong that has stuck with me from the day of this trial all the way through. It’s not that I don’t always do something wrong, but I did something … Well, let me just tell you the story. Dale and Gail had a love affair that you should write a book about. These two fell in love in high school and they all had to wait until Gail was old enough to graduate and get permission from the parents to marry and they married and stayed married over 60 years until the date of his death.

They were just a lovely couple full of love, full life and I met them late in their lifetime and late in their marriage. They’re from California, they lived up in the Big Bear Area. They had a cabin that must’ve been their… Or House. I shouldn’t say a cabin. They had quite a nice house in the Big Bear Area of California. And so you say, “Well, how does Gale and Dale meet some lawyer who was practicing in Grapevine, Texas?” Well, frankly, I don’t know how they do. I don’t know if they looked us up in the phone book, I really don’t know how they contacted us. But I got a phone call from Gail and she had a kind of a quiver in her voice and she said, “I’m looking for an Oklahoma lawyer.” And I said, “Well, I’m in Grapevine, Texas. We’re kind of close to Oklahoma, but I have a license in Oklahoma. So, you’re in luck. I can practice over there if you’d like.” And I said, “What’s going on?”

And she said, “My husband is in the hospital up here in Oklahoma and we’ve got to get back to California.” And the original call was just to help her get her husband transferred from Oklahoma back to California. It wasn’t anything about a case or anything, it was just, “We can’t stay in this hospital.” They’d been there for weeks. And to be honest with you, I wasn’t sure what to do. I knew that a doctor would probably have to release them. I didn’t know why they couldn’t care-fly him, except that I suspected it was probably cost issue. They didn’t want to pay to trans-care flight him to California. So, I asked Gail what happened. And she gave me a little bit of rundown, but I’m going to tell you the facts in just a minute. I said, “I’d love to meet with you. Do you want to come to Grapevine or would you need me to come to the hospital?” And she said, “We can do it over the mail, I hate for you to drive up here.”

And I said, “Well, I need to meet and your husband and see what’s going on. Is he able to talk?” And she said, “Well, when he’s not on the ventilator.” And I said, “Oh, wow! It must be serious.” And she said he was injured in a trucking accident and I didn’t know if it was a wreck or what. So, I get to the hospital and Susan Hutchinson was my partner at the time and of course I always talk to my partners about this case. And when I left the office I was going to help a guy get back to California. There’s not a lot of financial incentive in that, but this lady just has the sweetest voice you’ve ever heard and you just can’t say no to a person like Gail. And so I thought, “How hard can it be?” We just got to go up there and find out what’s going on.

When I got there, I found out that there was quite a bit going on. The world’s largest fiberboard and sheet rock manufacturer is in Oklahoma. And at the world’s largest sheet rock manufacturer, Dale had retired from his previous career and he and his wife bought a champagne pink 18 wheeler and they did long haul truck driving across the United States. He was former military and he said, “I’ve always wanted to see the United States, what better way to get paid in your own truck?” And so Gail and Dale and their grandson a four years old, left Big Bear California and made it to Oklahoma to load sheet rock on this flatbed truck.

Now the issue was it was about 105 degrees according to the national weather service and the winds, and this is the issue that I’m going to reveal later, but the winds were very gusty. I’ll just leave it at that for now. And they have a rule at the sheet rock company that you have to tarp your load because if this material gets wet, it ruins it. And so you cannot leave the premises until your load is tarped. It has to be tarped. And Dale and Gail were the last truck loaded and he knew how windy it was outside. So he asked him, “Could I tarp inside out of the wind to be safe?” And they said no. There was a train coming in and they had to clear the loading dock. And so he was forced to tarp his load outside.

He got the first tarp down and as he was tarping the second tarp, a big gust of wind caught it, and wind and sails move ships across oceans. And when this wind caught this sail, it lifted him up, up, up, up off the truck and slammed him into the ground. He shattered his pelvis in five or six places so severely that it severed his urethra. He broke both of his arms and the bones were sticking out just behind the wrists, broke almost all the bones in his face and he laid there unconscious for almost 45 minutes while Gail is frantically trying to find somebody carrying her grandson to help her husband and they can’t find anybody. And she has no cell phone reception because they’re in a remote area and her cell phone wasn’t working. And that started the case that I’m going to tell you had such an impact on me. For over 12 years, I’ve kept in contact with Gail. Dale is deceased now, but we went to trial in this case and-

Scott Glovsky:

Well, let me ask first.

Rafe Foreman:

Go ahead.

Scott Glovsky:

How did you discover the story of what the case was about?

Rafe Foreman:

We brought Dale and Gail to our office and Susan and I are big fans of psychodrama. And when we were partners we had a psychodrama room dedicated for psychodrama. And we brought them in to do re-enactments and psychodramatic techniques so we could learn and understand what the story was. And as bad as Dale was injured, the story was always their love affair. The story was always the terror that you would see in her eyes and in her voice as she described her husband bleeding out. The asphalt could have been 110 degrees because it’s 105 and asphalt’s always hotter. He’s lying on the asphalt with his face bleeding, a big pool of blood and she’s terrified. She can’t find help. And I just remember that very vividly. We did a re-enactment where she’s running around screaming for anybody. A guy on a bicycle rode by and didn’t help her. And she finally found a guy on a golf cart who actually finally called somebody, but it was really a bystander and his name’s Danny.

And Danny worked at the facility and he came to render aid and it was him that called the 911 and I will say this, when we took his deposition, he was such a good witness and Gail was so grateful to him that I think they went to dinner or maybe she wrote him a nice thank you card. And I looked at it and I said that was appropriate. It restores your faith in people doing the right thing because here’s a bystander who had nothing to do with this situation that comes and renders aid and literally saved Dale’s life. So, we find all this out in our office, because when I go to the hospital, Dale is on ventilators and he looks terrible. He’s literally got his arms up like this with the suspension holding him up and his legs are the same way and his pelvis is shattered in five places.

The guy was almost cast from his toes to his fingers and he couldn’t really talk. So, it was several weeks before we could learn from him what his version of the story was. We could piece together the parts of the witnesses that we could talk to. And then it was almost a year before we could bring into our office to do re-enactments to find out what happened. It was just Gail and Dale and Susan and I. We didn’t have a big group of people, we just had the two lawyers and the two clients and we did the listening exercise to start with, which we always do. And I think Susan May have written her entire opening statement during Gail’s listening exercise. It was so powerful that when you hear it, you just say, “We have to help these people.”

Scott Glovsky:

What did you ask or did Susan ask Gail to talk about?

Rafe Foreman:

What was on her mind. And of course what’s always on Gail’s mind, I guess since this wreck was her husband. She loved this man like no other. Even though he would say he’s okay, she didn’t believe it because he walks kind of crooked or he falls down or he trips. Even when she was in the listening exercise, her eyes would keep darting over to him to just make sure he was okay and that he was okay to hear what she was going to say and that he was physically okay.

Scott Glovsky:

And just for listeners who don’t know about the listening exercise, that sort of a form of active listening where you’re tuning in to the deep feelings that the person speaking is talking about. How would you describe it briefly?

Rafe Foreman:

That’s exactly right. You tune in, you listen with your ears of course, but you listen more with your heart and you tune into the feelings that you are receiving from the speaker, but they might not be saying it. So for example, they may be feeling fearful but they don’t say, “I’m feeling fearful.” And you suggest that. We call that a doubling. And you say, “I’m feeling fearful.” And when you say that, if it’s true, they roll with it, if it’s not the correct and instead do what is true. So, to give you an example, if I was doubling her and I said I felt fearful and she agreed with that, she’d say, “Oh yes, I was terribly fearful.” And then she gives you a whole list of things that were causing her fear. It’s a tremendous active listening exercise. That’s the best way I’ve ever heard it described. And you don’t advance your agenda. We don’t tell our clients we want you to talk about this or we want you to talk about that.

We explain what we’re doing and where we’re sitting and we tell them to talk about anything they want to because they need to clear their palette, if you will. They’re not always ready to talk about the case. Maybe they want to talk about the money or the cost or the deposit … Whatever’s on their mind, we’ve got to let them get it off their mind because we want them to be focused on the story. So, we get the actual details and the facts correct. And if they want to talk to you about just for example, the cost that this is going to be for this litigation, they’re not ready to talk to you about the story yet. So, just let them talk about the cost for a minute and then when that emotion has expired and utilized itself, then they’ll be ready to go to the next one.

Scott Glovsky:

Okay. So, going back to the story.

Rafe Foreman:

Yeah.

Scott Glovsky:

So, you’ve done the listening exercise and you’re developing the story.

Rafe Foreman:

I believe we did the listening exercise on Gail and Dale. Now, his was not as productive, as you can understand because once he got injured, he was unconscious and the only knowledge that he had of what was going on was, he regained consciousness either in the ambulance or the aircraft. And so there’s a lot of holes in his. And most of what he was talking about was as far as that part of the story goes, was the facts that led up to his injury. But then when he starts talking about his love affair with his wife, it just changes the whole ballgame because you just see here’s two people that their entire lives are devoted to one another. And they have a child and they have grandchild and they have a great family unit. But it’s just an inspiration to see somebody love another human being that much.

It really was. And so after the listening exercises, we give him a break and we say, “We’d like to see some things.” And often clients don’t know what that means. “What do you mean you want to see some things?” Well, instead of just telling us what happened, could you show us from your point of view? And so Gail was in the 18-wheeler, so she’s up real high and she can’t see because they have a sleeper behind their 18-wheeler, but she can see from the rear view mirror. And so that was a critical piece because when we put Gail on the stand, they’re going to cross examine her on her ability to see what she could see through the rear mirror. Images were reversed, but she saw her husband fall off and hit face first. She was able to see it from that position.

Then she got down and left her grandson in the cab and so we re-enacted that she ran around the front of the cab, which is important because the bystander that was going to help came from the other side and they didn’t see each other at first, which is why she was running around looking for somebody because he was running around trying to secure the tarp from doing further damage. And then he had already called 911; she didn’t know that. We always tune into our clients. Dale is watching this and he’s literally seeing it for the first time. He’d lived it, but he didn’t really live it. He didn’t know that it was something he was going to have to remember. And so he is literally living his story through his wife’s eyes for the first time in this room. And he’s just overcome. We had to take several breaks because he’s just overcome with emotion.

And when you check in with him and you say, “What’s going on with you, Dale?” He would say, “I never meant to cause her that kind of pain.” Every time his concern was for her. That he didn’t want to cause her to have to see that or his grandson to have to see that. It was a very touching part of the case later in the trial. I could talk to you about the defense in the case. This case is a not winnable case according to everybody that ever looked at it except for Susan Hutchinson. She believed in it. But everybody else said, “You can’t win this case, because our guy Dale stepped in a hole while he was tarping number one, number two, there were tarping services available. He could’ve paid somebody to tarp it. And number three, he could’ve parked in a different place where a building could have blocked the wind.” Defense were offering us no money. This is not a winnable case and this can’t happen.

And so we went to trial. And we didn’t have just one session with Dale and Gail. I think we had … They actually liked it. And we don’t use the term psychodrama in our office. I’ve had a counsel try to take my witness on board and ask them, “What did Foreman do at his office to get you ready for trial?” And I don’t mind if everybody knows what I tell them. I tell them, “I want you to tell me the truth and show me the truth and that’s what we’re going to do.” And most judges just shake their head and say, “I don’t know why…” “Your little interruption is over with, go away.” But we’re not using psychodrama. I think lawyers misunderstand. We’re using psychodramatic techniques to be sure, but we’re not doing psychodramas. We’re not doing therapeutic psychodrama. We’re using psychodramatic techniques to enhance and understand how the story happened and to develop the story.

And so I’m very clear with my clients. Why would you tell them we’re doing psychodrama? They don’t know what that is and a lot of lawyers that use the word don’t know how to define it. And to me, this is my own definition. Psychodrama is the exploration of the self and group action. I didn’t steal that from anybody, I made it up and maybe it’s not appropriate, maybe it’s not accurate, maybe it’s too simplistic, but that’s what I tell myself psychodrama is. We’re going to explore what’s going on within you and we’re going to put it out on the table for others in this group to look at, not to give you advice, just to be with you. To be present in the moment, to be available to be an auxiliary or a role if you need it to help in you telling this story and put in what is within you out here on the table for us to look at. And that is a very effective way to learn how emotions are affecting your client, how they’re affecting the story and frankly, how to learn the story from its most authentic origins.

Scott Glovsky:

So, tell us the story of trial.

Rafe Foreman:

Well, I never will forget. There was a juror named Ms. Flowers and of course I’m a firm believer when you ask for the money in voir, you tell them how much money in voir dire. I don’t believe you had it until closing argument. It’s like a trick that I don’t believe in. So, I just tell them right up front, “Here’s what we’re asking for.” If it’s $6 million, I’ll say this case is worth $6 million. And when I gave them the number in this case, juror number 11, Ms. Flowers gives me a look. And so I said, “Well, Ms. Flowers, what does that mean? And she said, “Hey, nobody wears $6 million.” And I said, “Well, okay, I understand how you feel. I respect that. I’m not going to try to talk you out of it. I see you feel strongly about that. Thank you ma’am for sharing that.” And in my mind, I’m probably going to use it to call a strike on her, although I didn’t quite fully develop it.

We go through the voir dire and this woman’s digging my chili, if you know what that means. She’s decided she likes me because I didn’t try to talk her out of her opinion. I let her have it. I said, “I understand exactly what you’re saying and where you’re coming from and I’m not going to try to change your mind.” And I just finished the voir dire. In the trial, Susan did a terrific job in the opening statement. I felt like her case was over in the opening, but where I screwed up this case … and this is what’s called a credibility kill. You want zero credibility kills in your trial. You can sometimes overcome one, but you’re lucky if you do. You cannot overcome two. Susan and I had a disagreement in the trial in the heat of the moment as to how fast the wind was blowing.

In my mind, no weather radar report said gusts up to 75 miles an hour and that’s what I went with. The problem is, that’s not what the weather radar report said. It said sustained winds of 45 with gusts up to 50, 55. And so I didn’t need the exact. 55 will do the same thing as 75 and Susan had told me, “I think you’re wrong about the number.” And instead of checking it, I just went with my feeling and it turned out to be a bad fact for us because the prosecution, I mean the defense lawyers were able to argue that we’re exaggerating, we’re fluffing. “Here’s the exhibit, here’s the report. You clearly see that 55 was the highest wind on that day and he’s exaggerated by 20 miles an hour.” And I learned something very … Well, I learned a lot there.

Number one, listen to your co-counsel. Number two, go verify on the exhibit. Don’t be so bullheaded that you think you know everything. Number three, and this actually happened during the trial, I apologized to the jury in closing argument. I brought the exhibit out and I told them that Susan had told me the radar number and in my mind it was 75 and that’s what I went with and I apologized too. I don’t know if that made a difference or not, but the jury deliberated till well after midnight and at midnight the judge sent the second piece in there and sent the second down in my charge and said, “We’re going to stay here all weekend. This case will be done by Monday. We are going to stay here till we get a verdict.” Still no verdict. About one o’clock in the morning, the bailiff comes out and says “They’re hopelessly deadlocked.” And so the judge brings him out and admonishes him and sends them back. And by this time defense counsel is nervous, we’re nervous. They make a fairly substantial offer that Gail and Dale wanted to take and we settled.

We bring the jurors out and say, “What are we all hooked up on?” Ms. Flowers. She said, “Mr. Foreman asked for six million,” and she wasn’t giving a dime less. She would not negotiate off of the damages. It was a plaintiff’s verdict and everybody was trying to negotiate the damages and she wouldn’t budge. And she had two or three followers I guess, because you need a 10-2 verdict. So, if we break it down to the real deal.

Scott Glovsky:

How did you win that case? What was it?

Rafe Foreman:

I didn’t win that case. I never lost that case. What won the case was a love affair between a man and a woman and their little grandson who chose to avail themselves of the American way to work hard and earn your living and see the countryside as a family. It was their love story that won that trial. Dale and Gail won despite me, not because of me. Susan did a terrific job, but their story was so powerful that it overcame me making a mistake.

Scott Glovsky:

If your tears could talk, what would they say?

Rafe Foreman:

I regret letting myself get in the way. Trial is never about the lawyer, it’s about the client. And you should always put their interests first and you should not put your ego up there, you should not put your stubbornness in the way, you need to listen to your clients, you need to listen your client’s story. And the reason that we were able to have a successful outcome in this case, is because we knew our story better than the other side knew their story. But our story was real. Our story was true and our story was about everybody. There’s three stories in a jury trial Scott. There’s the plaintiff’s story, the defendant’s story and the jury’s story. The only one that matters is the jury’s story. And the jury adopted Gail and Dale’s story because that’s the story we all want. And that’s what carried the day. There’s no question in my mind.

Scott Glovsky:

Well, Rafe, we talk having a personal connection to the case.

Rafe Foreman:

Yep.

Scott Glovsky:

Where was Rafe Foreman in this case?

Rafe Foreman:

Dale was kind of a character and I’ve been called a character occasionally and I’ve really related to him because he’s just stubborn. He’s already retired from one career, just stay retired and enjoy and go fishing. But he don’t want to retire, he wants to retire in an 18-wheeler and haul long-haul loads across the United States of America. And that’s kind of something I admired. I really connected with him. Gail, I’m still connected to to this day and I’ll show you the depth of this connection. Gale gave me permission to use the facts of this case in my study from my book that I’m writing, when I finished writing it, but in my classrooms and in my teachings. And so I have the facts condensed and I have the verdict form condensed. And so I gave it to strangers to try to predict based on how they answer the voir dire questions, how they’re going to answer this control fact pattern.

And it’s been a remarkable learning experience. I’ve learned more about voir dire because of Gail than anything in the world because… I and Michelle Tobin created the only voir dire competition that’s ever existed in the United States and it’s called “The Show Me Challenge” and we invite schools from across the nation and it is a voir dire selection competition, mock trial. And the fact pattern for one of the competitions was this case and she was so honored that I almost … She had a conflict where I was going to fly her out to witness all these lawyers from all over doing voir dire and opening statements on her and her husband’s case.

She sends me notes all the time saying that Dale would be honored in being able to know that lawyers are being trained with his story and their love story. She sent me a collage of pictures for the trial, most incredible thing you’ve ever seen. Not in number of volume, but just the love that you can see in every picture for their children, their grandchildren, each other. So, my connection was with my heart 100%. I viewed these people as clients, but more than that they were friends and they’re the kind of grandparents and parents and spouses that we all should aspire to be.

Scott Glovsky:

Wow! Rafe, I’m touched that you shared this story with us. That you took the time to share your heart with us and I’m excited to read your book and there’s wisdom in there I know that I’m eager to get. So, thank you for being a friend and I mean that from the bottom of my heart.

Rafe Foreman:

Thank you. I mean it too.

Scott Glovsky:

We as trial lawyers are lucky if we get one person who’s touched our heart, who’s helped us, who’s taught us and made us to be a better person. And you’re really the first one for me. So thank you.

Rafe Foreman:

Thank you for the friendship over the years and our continued friendship in the future. And thank you for what you’re doing. This is important work you’re doing here and if I can play a small part in helping you out, I’m there for you. But keep it up and thank you for doing this Scott.

Scott Glovsky:

Thank you.

Rafe Foreman:

It’s really meaningful.

Scott Glovsky:

Thank you Rafe. Thank you for joining us today for Trial Lawyer Talk. If you like the show, I’d really appreciate 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 S-C-O-T-T-G-L-O-V-S-K-Y.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 and 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.

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