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Transcript for Trial Lawyer Talk, Episode 11, with Ben Bunn

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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 of the best trial lawyers in the United States. First let me thank you for listening. We were on iTunes “New and Noteworthy” from many weeks, and now we’re on iTunes “What’s Hot,” so thank you.

This is a storytelling podcast and today we have with us a great trial lawyer, Ben Bunn from San Diego, who’s a person injury lawyer, who’s going to tell us a very interesting story about a case in which he represented. A client who suffered personal injuries, and specifically pain, but the client could not feel any of that pain because he was paralyzed and had not feeling in his feet. Then also he’s going to share with us some interesting approaches as to trial strategy that he employed. So hope you enjoy it, and let’s get going.

Welcome to Trial Lawyer Talk. Today we’re incredibly lucky to have with us Ben Bunn. Ben is a phenomenal trial lawyer in San Diego, who represents all kinds of clients in catastrophic personal injury cases, workplace accidents, and the whole gamut. Ben has been a teacher at Trial Lawyer College for more than the past decade, a phenomenal trial lawyer. Ben thanks so much for being with us.

Ben Bunn: No, no problem, glad to be here.

Scott Glovsky: Ben, can you share with us a story of a case that had meaningful impact on you?

Ben Bunn: Yes, there’s several and it’s funny when you ask me that question. It’s funny, I don’t think of the highest value cases, interestingly enough. Both from a trial standpoint and from a non-trial standpoint there’s several cases that come to mind. Probably one of the early cases, after I went to TLC, was a case that I represented a fellow who was already in a wheel chair, disabled. Part of a county system, where they would provide caretakers to help with this person, whose legs were paralyzed.

It was a case where his caretaker, who had been assigned to him, had scalded his feet, and burned him very badly. Now, he couldn’t feel that pain, but his feet would… It was nasty, it was a bad deal. So we took on this system because the county would say, the person that hurt him… The injured person was the employer, they make them sign forms to say I’m the employer to this person, when it was all a sham. The county was really the employer.

So that was the way they were trying to get out of the case. We overcame emotion, and we ended up going to trial. It was the first trial victory in California where it established that the county had responsibility for supervising these care givers, and they couldn’t just shove that off onto the injured person. The jurors were literally talking to each other so much, that the defense lawyer, who days after this trial got appointed as a judge, had objected – saying, ‘objection, the jurors are talking to each other.’

Scott Glovsky: Wonderful. Let’s go back and I’d like you to take us through the story of once you first got the case, how you approached it, and how you got to know your client, and how you prepared for trial. Can you share that with us?

Ben Bunn: This was a case that probably nobody in their right mind would have ever taken, because the damages were that he couldn’t even feel it. But I got to know him because I just could see that he was totally getting shoved aside in the system. The system didn’t care about him. The system probably didn’t care about anybody else who was in his same type of shoes.

So it needed to be fixed, and that’s what I like to do. I’ll take on these governmental entity cases when I think something needs to be fixed. That’s usually how my criteria… I’ve been blessed enough that when my firm, that I was with at that time, and I was really a relatively young lawyer, would have let me have that leeway on a case that made no financial sense whatsoever.

But I got to know him, and you spend time with your client, you go to the doctor appointments with your client. You obviously go to whatever defense exams with your client. But I do to their doctor appointment, and develop a relationship with their physicians, and try to meet people close to them, try to spend as much time with them. Obviously, it’s not just going to their house occasionally, but really getting to know them.

Scott, I think over the years, I’ve probably switched my model, where I would say 85% of the visits, appointments, whatever I have with clients are at their home, as opposed to at their office. People were so much more comfortable there, they’re more real there. I think they’re touched that you’ll take the time to go see them there. We just tried to immerse ourselves in their lives that way.

So anyway, by doing that when it comes time to being able to tell their story you learn what their story really is.

Scott Glovsky: Right. Let’s focus on this case that you were talking about.

Ben Bunn: Sure.

Scott Glovsky: How did you get to know your client?

Ben Bunn: I think it’s function of time, the time of just being with that person, spending time with that person. His name was Warren. That wasn’t easy for him, because he had his own issues. He was in a wheelchair because he had a troubled past, he had been shot. So his story, you needed to understand his story and who he was. So just a function of time as much as anything. Being with him in his own environment, and also as often as you could, anytime he needed to go somewhere, or caring. You needed to sense what it was like for him, why this mattered.

Scott Glovsky: Tell us the story.

Ben Bunn: Yeah. Well his story, this has been almost 20 years ago, but this is a young man who had a troubled past, who ended up being in a wheelchair because he was shot years before, so really didn’t have two nickels to rub together. When this particular case happened, and he had his feet scalded because the care giver had no training or background and put his feet in literally tubs of scalding hot water and walked away.

His skin started peeling off his paralyzed feet. Literally when they pulled them out the skin just came off. So that was essentially the injury. But for him, he also wanted to fix the system. It was important to him that he could make sure it didn’t happen to somebody else. Really, that’s what we had.

Getting back to the trial story, one of the issues in the case was what does that mean? The medical bills were paid for by the government because he was on government assistance. Then you had a person who didn’t feel the pain, so I just gave that to the jury in jury selection. I said, I want you to know something, the judge read this thing about pain and suffering, but he didn’t feel any pain.

By God, there would be at least two or three hands on the jury, they raised and said, ‘yeah but he had to see it and that’s suffering.’ So they did it for you, they literally created the closing argument in the case value for me. If we can let go of control and give it to the jury they can help you understand the story of this client, of what it must have been like for him to have to go through that experience. Then of course the bigger picture, what we can do to make sure this doesn’t happen to somebody else.

Scott Glovsky: So take us through that trial.

Ben Bunn: Okay. So that trial starts off with, literally in jury selection, one of the big defenses was they have these injured people sign forms that acknowledge that I’m the employer. So that’s the defense, that the person that hurts him, literally it’s a release form. That was a huge issue and we had overcome a summary judgement. But in jury selection, I literally had 40% of the people on the panel were government employees.

Scott Glovsky: Wow.

Ben Bunn: So right from there you’re thinking, ‘oh my god, I’m suing the county, that scares me to death. There’s a case against the county for money, and at least 40% of you all work for some governmental agency. What are we going to do about that?’ Of course, they all start talking. They start talking about, ‘that’s okay, we understand how these things work, and we have funds for things like this. We know how these things get dealt with,’ and they would be open about it.

They reacted to my genuine concerns and fears by opening up themselves. So we literally had… I got the issue of this form out there. There was a person on the jury who was a defense lawyer for a firm that does governmental entity defense work, on the jury panel. I somehow got this issue of the form out there, I don’t even know how I did it. I just said, ‘geez, should I just pack up my bags and go home. Is it over for us?’

By golly, that person raises her hand and says, ‘that’s not true. That’s not necessarily true, these things… I don’t know.’ We left that person on, and that person ended up being the fore person and planned a verdict for the state. We didn’t make… The care giver that actually left his feet in the water, we didn’t focus on that person being a bad person.

Scott Glovsky: What did you do?

Ben Bunn: So what we did was, by using the chair back, where we would understand that person’s story going deeper in her own emotion. We knew she had to feel horrible about what happened, but she was really a victim too.

Scott Glovsky: Why don’t you explain the chair back?

Ben Bunn: Yeah, good. It’s one of our favorite things that we do in every case. Every case we do it, whether we’re getting ready for depositions, trial, really everything, we use the chair back. The chair back is, let’s say you and I are having this conversation right now, and I’m talking to you in the first chair. We’re having a nice conversation, and you’re telling me things, and I’m listening and it’s all very really and honest, but it’s not very deep.

So what we would do is, we would then do the second chair, we call it, which is we ask you to tell something a little further deeper in your emotions. Maybe it’s a conversation that we would only have if we were home and you knew nobody else was listening, and you could start to share some of your real emotions. Maybe I’m going to get a little deeper of how you’re feeling, some real true feelings.

Then the third chair might be, we would tell you let’s step back into this third chair, where we can talk about some emotions and some feelings that you would not share with anyone else. But really try to get you out of your head and deeper into what’s really going on. Maybe sometimes we’ll take you a few deeper chairs to try to really, really go deep, deep, deep. It serves on gaining insight of what’s really happening with that person, and what’s really going on.

It’s a great exercise to get the true story, if you will. What we’re trying to do is discover the story of this witness. So bringing it back to this case with this particular care giver, what we could do by learning that exercise, is that she also was afraid. She didn’t have any training. She got put in a situation where she was in over her head. She didn’t understand what could happen if she left this person’s foot in the water. She was relying on the county to help her as well. Really, they let her down too.

So in trial, you can tell that very human story with her, and then she started crying. She felt horrible, and I said that. I know you feel horrible about what happened, and she did. Would you have liked to have better training? Would you have liked to have some help from the people? At the end of the day, she basically said, ‘yeah, of course I would. I wish I could have had that, and I would like to have that. Anybody in my shoes should have that oversight.’

Warren was your boss. She laughed, ‘no of course not.’ Then the line became in our case, he wasn’t capable of being an employee much less an employer. So it develops these themes. But by being human with this witness, instead of attacking her, you can tell the bigger picture story, which was the true story, the institutional story. That’s what we do with all of our cases, try to see the bigger picture, because generally that’s usually the case.

Scott Glovsky: So how did you approach putting your client on the stand?

Ben Bunn: Yeah. It was an interesting one, because he didn’t need to be on the stand a long time, believe it or not. Because we tried to tell the story with others as well. He was scared, he had never been in those kind of situations before either. But you just try to really make him human and not perfect. It didn’t have to be perfect. I guess that’s a sure way of saying that sometimes we’re so afraid of what the clients are going to say that he has to be perfect, that we try to use lawyer words, and we make the mistake of having them say what we want them to say.

So I guess the best way I can say it, we just wanted him to be real. Let the jury connect with him on a real basis. Let them feel how vulnerable he was, so we tried to give him that opportunity to talk about that. We brought up his past and why he was there, not that it mattered so much, but they needed to know him, and who he was.

Just to get to know him on a bit of a human level, and what it was like for him. You didn’t need to go on and on about it, just give them a chance to meet him and connect with him. That’s a surface-y was of saying it, but I think it’s important to get to know these folks on a human level.

Scott Glovsky: You talk about imperfection, and how as lawyers, we want everything – ourselves, our witnesses – to be perfect.

Ben Bunn: Right.

Scott Glovsky: Can you tell me more about imperfection?

Ben Bunn: Yeah, I can tell you a lot about that. We don’t have enough time. I think as trial lawyers we’re controlling personalities. I think that’s probably a trait that most of us share. I don’t necessarily think it’s always totally a bad thing, because we’re in the position where we’re having to do a lot of that, to lead the charge if you will.

But I think along with that comes the baggage of us wanting everything to be exactly perfect, and that’s not life. That’s not who we are, we’re not perfect. God knows, we have our own fears, anxieties, nerves, and fears of losing, fears of letting someone down, and I have all of those things and more. We have those things because we care.

I think to be a great trial lawyer, honestly, you have to care. The old school teaching that you should separate yourself from maybe the client and try to keep the distance, I just don’t see how you can really be an effective trial lawyer if you feel that way.

If you’re doing this just for the money, you’re not going to be a great trial lawyer. I just don’t think you can be. I think you have to let yourself care. But when you start caring you starting worrying and start having those fears. Your own human imperfections about you and your story and what you bring to the table.

Then when we have a client who comes, and maybe they have been part of the problem, maybe they made some mistakes too. Maybe they were part of what caused them to get hurt. We hate that as a trial lawyer, we don’t want that, that takes away from the case, maybe it will make us lose the case. So we want to figure out a way to hide that story instead of understanding that story, feeling that story, and what part of that… Then that translates to the jury.

I think, even more recently, a case a few years ago went to trial. It was a young man who was in an accident, where a big huge… Imagine your Tonka truck, the biggest Tonka truck, the biggest Caterpillar truck there is. He was driving it, and he went to drop a load of rocks, and the landing area that he was on collapsed. The defense was he just drove too far, he just drove off, and they had a witness who said that.

So we had all kinds of issues about comparative, did he have responsibility, and was it all his fault. But once again, by immersing ourselves in his story, in his case, and reenacting this story multiple times, going to scene, even though it had changed. And literally reenacting it with him at the scene, this big huge land project. Feeling it, understanding it, and then figuring out what had happened.

You could get those imperfections to the jury early on and say, look this is going to be probably shared responsibility. You were just straight with them about, everybody has their share. So part of what we’re going to have to figure out is who has what share. We’re willing to admit that. We’re willing to take responsibility for what he did. But they’re not, you know what I mean? So you use those imperfections as a sword.

Scott Glovsky: It’s funny, as lawyers we generally think of imperfections as a bad thing that we don’t want to share with people. But tell me about whether you think those imperfections actually are crucial to help the jury understand the truth and credibility?

Ben Bunn: I think they are. I think you’re dead on, because we don’t want to say bad things about our case. But here’s the thing that I found: when those bad things, when they’re really something that you’re worried about, it gives you a chance to bond with the jury, in way that you could never bond before.

For instance, on this very case one of the jurors was a minister, a pastor. Here we are, we’re talking about money and accountability. I think two weeks before, my own church where I go to, the pastor got up there and talked about how bad lawsuits were and how wrong they all were. I’m thinking to myself, as this juror is on there, this guy is going to be horrible. He’s just going to think this is terrible.

So I told him that same story I told you. I said, I can’t remember his name, but Mr. Smith, I notice you were a pastor in your churches. Can I tell you something? I’m scared to death of you, because I feel like, and I told him the story about my own situation that just happened. I’m just worried to death that you’re going to feel like I can’t judge these people. I can’t hold these people, and it’s about money.

I’ll be darned, if it didn’t just completely open him up. He said, I get asked that question all the time. That’s really a good question. The folks at my church ask me and he says, that’s not true. The Bible is all about accountability. He said, of course it’s the right thing to do, and I believe that this system should do that. Literally, he couldn’t have given a better talk for me.

But it gave me a chance to be vulnerable, honest, and real, about some real truthful feelings with him. What happened after that was pure magic, because then the rest of the panel starts talking. We start talking in ways that I could have never gotten without me being vulnerable with him, about something I was really truly scared about.

Scott Glovsky: Right. When you say the rest of the panel, meaning the other actual jurors?

Ben Bunn: They start talking, literally to the point where one juror raises her hand, she was a paralegal at a firm, and she said, she was so… At this point we were able to be so real about some things. She raised her hand and said, Mr. Bunn, I don’t even want to tell you this because I don’t want you to feel bad.

I just don’t want you to feel bad, but I work at a firm and we’re on the other side of these kind of cases, and I just don’t know. I want to be on this jury, but I just don’t know if I can go back to my firm. Even if I wanted to give a verdict. But I’ve got to tell you about it, but I don’t want you to feel bad.

She felt more concerned about me. But I think that was a function because I was struggling, and I was trying to be honest with them about these things. It’s the damnedest things that happens when you start doing that.

Scott Glovsky: Tell me more about that dynamic. She cared about you, because…

Ben Bunn: Because I was being honest, vulnerable, and open with her, and with this panel. I wasn’t trying to be the lawyer. I wasn’t trying to sell them on my case. I wasn’t trying to tell them why they should… Doing hypotheticals, could you find for us, I wasn’t doing a lot of the stuff that goes on. I was really being vulnerable with things that I was concerned about, and issues with our case that I just wanted to get out there and talk to them about.

Scott Glovsky: What happened after your client’s testimony in the case?

Ben Bunn: Well in that case, it was great. In that particular case, we had reenacted it so much. In fact, this was a case where in opening statement, as I was telling the story, I reversed roles and became him, and delivered the opening statement partially in the first person as the client, as this young 21-year-old.

Scott Glovsky: Explain what that means.

Ben Bunn: Yeah. Well essentially, I delivered part of the story as the client. So I became him. I told the jury, you’re going to hear, for instance… I didn’t do it the whole thing that way. But as I got to the point about what happened, I said, and you’re going to hear from David that…

Then I became David, and I told it in his voice. In the present tense, as I was in that truck, I was driving this morning and I posed as he was feeling, and what was happening, and what he did. Then at a certain point, when this thing collapsed and he fell, I literally fell to the floor, in my suit on the floor, on the ground of the well of the courtroom, because it was real.

I think when you do that, and you’re willing to commit to that level of realness and demonstration, and get yourself dirty, I think people appreciate that. I think for one it’s interesting, and they don’t forget it. So to them, when you get to the client, and I usually put the clients on near the end, because I want everybody else to tell the story for him.

He was scared, he’s not one I could literally take down off the… take him down in the well and have him recreate it. But I had already done it. So I can have him guide me a little bit, and we were able to tell his story, maybe shorter than I would have normally, but I was also had to let him be honest, vulnerable, scared, and real.

He didn’t have to have all the answers. In cross examination, he was polite, and he didn’t run from stuff he may have done wrong, and the jury loved him for it. They really loved him for it. I just think that if you can let yourself know that people will take care of you. If you’re straight with them, they’re willing to forgive some of those things that maybe otherwise you want to hide.

Scott Glovsky: So how did this verdict, the result of this case, change the law?

Ben Bunn: Well, the one that I just talked about I don’t think it changed the law at all. It just was a verdict on a no-offer, and then we got a nice six-figure verdict, it was a good verdict. But the one earlier, 20 years ago, the one I talked about, was very significant. Because I think it really changed the way the agencies viewed care givers. It really changed the care that they would take in terms of placing someone in someone’s home.

Of course it shook them, I think it got their attention that we need to do better. I think that’s been a positive thing. We’ve done it with other governmental verdicts, and cases that we’ve done, dangerous condition cases, where we’ve gotten conditions changed, sometimes it’s an ongoing process. But personally, those are things that drive me, that I appreciate doing.

Scott Glovsky: How does that make you feel, when you take a case and ultimately results in people being safer? Which in this case care givers getting more training, having the government take more responsibility to prevent people from being injured like that.

Ben Bunn: Well it makes me feel great. That’s a big part of the motivation of why you take these cases, that otherwise are difficult risky, expensive, and maybe financially don’t make sense a lot of times. My criteria is simple on these cases, is something I feel like really needs fixed, then I feel like sometimes they need to be taken on. Obviously, you need to take care of a family, or you need to take care of someone who’s been hurt.

But you feel great. I think fundamentally, when we all went to law school, if you were to ever interview most people in law school, both when they start and when they’re getting out, they would pretty much all uniformly tell you I want to make a difference. That’s what most people feel. But unfortunately, I think what happens is life sets in for so many folks, and they end up getting pigeonholed in some job that they need, because they got to pay off their loans, and support their families.

We do a lot of speaking on this point on lawyer happiness. A lot of people are not necessarily happy, I think one of the ways to make you happy, is if you can get some fulfillment out of what you’re doing. I think sometimes taking on these cases, and trying to make things safer or better for not just the person that got hurt, but for others. It takes you back to why we did this in the first place.

Scott Glovsky: When people come to you with a case that you cannot take, how does that make you feel?

Ben Bunn: It’s difficult, because obviously we’re all hardwired to help people, right? So you feel bad. But I’ll say this, and I’ve gotten much more selective and I think you have to for your own mental health over the years. You can’t take on every battle. So I think you just try to be straight with them for one. Because there are a lot of cases out there that come to you, that shouldn’t be taken.

But I think often times lawyers are, it’s easier to just pass them along to the referral service or other lawyers.

Obviously it’s appropriate to do that in cases that where there’s probably a case that you just can’t handle. But sometimes people just want you to be straight with them too and say, here’s the pluses and minuses of your case. Sometimes people are just looking for someone to honestly tell them, I don’t see that as being a case.

Most people just want you to straight with them. You always tell them, some people may differ, and you probably should get other opinions, and you should do that type of thing as well. But like in everything in life, if you’re straight with people, about how you’re feeling, I think that’s generally the answer. It’s the right thing to do.

Scott Glovsky: Yeah. Can you tell me a little bit about how your feelings, while you’re trying a case, matter?

Ben Bunn: I think you have to be in touch with those feelings. In every case, you’re feeling scared, nervous, anxious, on the other hand, there are moments when you’re feeling confident, righteous, feeling like things went really well. You’re feeling proud.

I think you just have to stay in touch and be grounded with the feelings. It will just connect you with your witnesses. I think it connects you with your clients, your witnesses, whatever. I try to share those feeling, the only way I can get someone else to connect with me, is if I’m willing to connect with them first.

So maybe with an expert, maybe I might say, how are you feeling this morning, when we’re working. I might tell them, I’m feeling a little anxious this morning. We had a couple things happen yesterday, the judge or the other side, and I’m just nervous about this. So that’s where I’m at this morning, I feel like this is going okay, but we’re… You just want to be candid with them a little bit. Be real with them, and then hopefully they’ll be real with you.

Scott Glovsky: Do you think that the jurors pick up on how you’re feeling, even if you don’t communicate it?

Ben Bunn: Of course, right. Of course they do. Because it’s not even what we say, it’s how we’re acting. It’s how we’re being, it’s the look on our face, it’s our mannerism. What is it, 80% of communication is not what you say, but how you’re looking and acting, the nonverbal stuff. So of course they pick up on it, just like your wife picks up on it, and your kids pick up on it, and your coworkers pick up on it. Even things that you don’t even see yourself doing, they’re all picking up on it. They’re watching you like a hawk, by the way. They’re all watching you.

Scott Glovsky: Ben, I know that you do a lot of, not only teaching other lawyers, but also speaking about having a balanced life, being happy as a trial lawyer. What advice do you have for our listeners who are lawyers, who may be young lawyers, as far as living their life professionally, personally?

Ben Bunn: Yeah, it’s a challenge. Because I think, and we’ve talked about this before that, doing what we do, I think lawyers especially litigation, trial work, those types of things, it can be so conflict ridden. Obviously it’s a conflict based system, right? I think that is poison to your humanity in a lot of ways.

So I guess my advice to the lawyers would be, you don’t have to be, I don’t want swear on this podcast, but you don’t have to be a jerk. You don’t have to be a jerk, it’s not human. You need to be yourself. It doesn’t mean you’re not strong, that doesn’t mean you’re not aggressive. It doesn’t mean you’re not a great advocate for your client.

But man, I’ll tell you, I don’t subscribe to the school of thought that means you have to be a complete jerk to the other side, or you have to make things hard than they need to be. I think being cooperative, being professional, being civil, being cordial, and courteous. That fundamentally is okay.

In fact, I think it’s much more productive for you as a human, and for the job you’re doing. It’s more of a long term approach. So fundamentally, and the word civility gets used a lot, but that just means being real and candid. Don’t make it harder on yourself than it needs to be. So I would say that fundamentally.

I would say, I struggle with the rest of it just like everybody else does. Trying to struggle with balance and the stresses, and whatnot. I think having TLC is great, because you’re with colleagues that you can be real with, and you can have as your “therapist” out there, is helpful. Trying to keep those things balance in relationship, physical fitness, all these things are important, having outside interests.

What we do can be so consuming on us, and can be so difficult. I guess being mindful of it, and just trying to do your best to keep those things in mind, and to reach out and get help when you can. Because it can be a very gratifying, fulfilling, super awesome profession where you really are helping people.

I think fundamentally that’s what’s really great about it. You can make a great living doing it. But also recognize the toll and stresses the conflict takes on you as a human too. Don’t just to bury that, be open about that and work through that. I hope that answers your question, but that’s what I’m thinking.

Scott Glovsky: It sure does, Ben. Thank you so much for being with us today. I appreciate you taking the time. I appreciate your great gifts to the lawyers you teach around the country, your great gifts to your clients.

Ben Bunn: Yeah, thanks. Thanks for having me here. I hope this has been helpful, and it’s a good thing you’re doing.

Scott Glovsky: 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 scottglovsky.wpengine.com. That’s S-C-O-T-T-G-L-O-V-S-K-Y. com, and I would 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.

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